Bank robber Holsey Ellingburg Jr. is arguing to the justices that restitution is a civil remedy and not criminal punishment, and he got backing Monday in amicus briefs from the Constitutional Accountability Center; The Cato Institute and the Fines and Fees Justice Center; the National Association of Criminal Defense Lawyers and FAMM, formerly Families Against Mandatory Minimums; a law professor at Wake Forest University School of Law; one at the University of Texas School of Law; and two restitution scholars.
A Georgia federal jury convicted Ellingburg in 1996 of armed robbery in 1995. He was sentenced to more than 26 years in prison and ordered to pay $7,567 in restitution.
Ellingburg paid about $2,000 in restitution and was released from prison in 2022, but the government said he still owes $13,476 as a result of compounding interest on his original restitution amount. The high court agreed in April to hear his appeal.
The government claims Ellingburg must pay restitution for 20 years after his release from prison under the Mandatory Victim Restitution Act of 1996's extended liability period.
But the amici on Monday said the MVRA violates the ex post facto clause of the Constitution, as that clause makes it illegal to retroactively increase punishment for a crime.
"The MVRA's drafters apparently anticipated the possibility that its retroactive application might violate the ex post facto clause," because "Congress explicitly made the act retroactive only 'to the extent constitutionally permissible,'" the Cato Institute and the Fines and Fees Justice Center's brief said.
Ellingburg and his supporters contend that extending his debt unconstitutionally increases his punishment.
The NACDL and FAMM argued that restitution orders under the MVRA generally impose punitive financial burdens that interfere with reintegration and rehabilitation of offenders. Restitution orders often result in insurmountable debt, particularly for indigent people, and can lead to reincarceration for nonpayment, the NACDL and FAMM said.
Restitution scholars Cortney Lollar and Lula Hagos argued that the MVRA's restitution framework functions as a criminal penalty rather than a civil remedy, as the government has argued. "We urge the court to side with the Third, Fifth, Sixth, and Eleventh circuits in holding that restitution under the MVRA is penal and that retroactive application of the MVRA thus violates the ex post facto clause," they wrote.
The Seventh, Eighth and Tenth circuits have taken the opposite stance.
The Eighth Circuit rejected Ellingburg's argument that he shouldn't have to pay on the grounds that the mandatory restitution law is not a punishment and that criminal restitution is a civil remedy. The circuit court did not rule on whether extending the payment period increases a person's punishment.
Ellingburg's October petition argued that the justices need to step in and "establish uniformity on this critically important question" of whether mandatory restitution qualifies as a punishment.
On Monday, the restitution scholars and the Constitutional Accountability Center argued that the MVRA statute's design and enforcement mechanisms align with traditional punitive measures, such as fines and incarceration.
The CAC highlighted the historical use of restitution as a criminal punishment, tracing its roots back to ancient legal codes and early American jurisprudence. "For instance, in Massachusetts, the penalty for theft was either restitution (if the thief could afford it) or public whipping (if they could not)," the CAC wrote.
The organization thus argued that Congress intended restitution under the MVRA to serve as a penal measure.
The Supreme Court's decision could be "enormously consequential" to anyone ordered to pay mandatory restitution with interest, which impedes "their ability to reintegrate into society and exposes them to serious collateral consequences, including potential reincarceration," Ellingburg said in a follow-up brief.
Representatives for the government declined to comment Tuesday. Representatives for Ellingburg did not immediately respond to requests for comments on Tuesday.
Ellingburg is represented by Lisa Schiavo Blatt, Amy Mason Saharia, Atticus W. DeProspo and Brett V. Ries of Williams & Connolly LLP.
The government is represented by Curtis E. Gannon of the U.S. Office of the Solicitor General and Antoinette T. Bacon and John-Alexo Romano of the U.S. Department of Justice.
The case is Ellingburg v. U.S., case number 24-482, in the Supreme Court of the United States.
--Additional reporting by Phillip Bantz. Editing by Brian Baresch.
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