Restitution and Ex Post Facto

Yesterday, the U.S. Supreme Court heard argument on whether a restitution order under the federal Mandatory Victim Restitution Act is a criminal sanction, subject to the constitutional prohibition against retroactive legislation in the Ex Post Facto Clause. The case is Ellingburg v. United States, No. 24-482.

The legislation and its history provide enough indications that Congress intended a criminal sanction that the Solicitor General agreed with the defendant, and the court appointed an amicus curiae (friend of the court) to argue in support of the court of appeals’ judgment. Appointed amici do not often prevail in this situation, although it does happen. Not likely in this case.

John Bash, the appointed amicus, led off his argument by arguing that this case doesn’t really present the question, the court should not have taken it up, and it should “dismiss as improvidently granted.” That step, which is essentially the Supreme Court saying “oops,” is known as a DIG in the SCOTUS bar. Leading with that does not indicate a lot of confidence in the merits argument.

At the end of the argument, the Chief Justice extended his customary thanks. “Mr. Bash, this Court appointed you to brief and argue this case as an amicus curiae in support of the judgment below. You have ably discharged that responsibility, for which we are grateful.”

When legislatures want to extend restitution rights to victims of crimes committed before the legislation, streamlined and expedited civil processes are the better way to go.