The Volokh Conspiracy
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Is Restitution Punishment?
Next week, if the Supreme Court decides to reach the merits in the U.S. v. Ellingburg case, it should recognize that restitution to crime victims serves compensatory rather than penal purposes.
Next Tuesday, the Supreme Court will hear argument in Ellingburg v. United States. The question presented is whether criminal restitution under the Mandatory Victims Restitution Act (MVRA) is penal and thus subject to the restrictions of the Constitution's federal Ex Post Facto Clause. This is an important issue for the crime victims' rights movement. If restitution is characterized as punishment rather than compensation, then the restrictions of the Ex Post Facto Clause (and perhaps other restrictions as well) apply to Congress and state legislatures as they craft restitution regimes. Because of the importance of the issue to the movement, I've joined Allyson Ho, Brad Hubbard, Matt Scorcio, and other lawyers at Gibson Dunn in filing an amicus brief urging the Court to affirm the judgment below in Ellingburg and hold that restitution compensates victims rather than punishes defendants.
Our amicus brief is filed on behalf of a crime victim's mother, Ms. Debra Ricketts-Holder, whose son was senselessly murdered in cold blood in 1993. His murderer was sentenced to life without parole. When the murderer was resentenced thirty years later, as required by the Supreme Court's decision in Miller and Montgomery, Michigan sought restitution to reimburse Ms. Ricketts-Holder for the costs she paid to bury her 17-year-old son—a cost no mother should have to bear. The trial court awarded Ms. Ricketts-Holder restitution for her son's funeral expenses.
The murderer (Neilly) then challenged the restitution award as having been awarded under a new regime, in violation of the Ex Post Facto Clause. In Neilly, the Michigan Supreme Court rejected his argument. The Court held that restitution statutes operate to "provide a civil remedy for victims' injuries rather than to provide a criminal punishment for defendants." Neilly has sought review of this Michigan decision in the U.S. Supreme Court—and his petition is apparently being held for resolution of the federal Ellingburg case.
Yesterday, I blogged about how the Supreme Court should DIG Ellingburg, because Ellingburg was sentenced under the discretionary Victim Witness Protection Act (VWPA) rather than the MVRA. So any issue about the MVRA is not properly before the Court. But if, nonetheless, the Court considers the merits, it should affirm the Eighth Circuit's decision below that restitution is not criminal punishment and therefore is not subject to the Ex Post Facto Clause.
Starting from first principles, it would be odd to call restitution punishment. Consider a case (like Ellingburg) where a bank robber is caught escaping with cash from a bank. It makes no sense to say that, when the bank robber is ordered to give the cash back to the bank, that is "punishment." Instead, in common understanding, the bank is simply being restored to the position that it was in before the robber took the bank's money.
Our amicus brief adopts this commonsense approach. It argues that, from antiquity to today, Anglo-American law has understood restitution as a means to compensate crime victims for their losses, not to punish offenders for their crimes. This victim-centered understanding runs from the Old Testament through the English common law familiar to the Founders to contemporary American statutes—including the federal Mandatory Victims Restitution Act. Any attempt to recast restitution as a criminal penalty misunderstands both its legal heritage and its fundamental design.
Our amicus brief explains that English settlers brought the private-prosecution model to the American Colonies, and with it restitution's role of compensating victims. At the time of the Founding, victims in the colonies routinely prosecuted offenses and obtained restitution for their losses directly from offenders, as I have explained in my article on the history of the crime victims' rights movement. Because the victim herself instituted and advanced the proceedings, restitution was pursued and considered as recompense, not retribution. So "restitution has historically been understood as a 'civil' and not a 'punitive' remedy." United States v. Visinaiz, 344 F. Supp. 2d 1310, 1324 (D. Utah 2004) (collecting historical evidence).
Nothing in the Constitution displaced the traditional understanding of restitution as compensatory rather than punitive. To the contrary, the Founders "would have seen the likelihood of victim-initiated prosecution" and expected the practice to continue. Cassell, 56 U. Pac. L. Rev. at 404. By leaving the responsibilities of day-to-day criminal justice to the States, the Founders "were clearly crafting a federal constitution that envisioned state prosecutions initiated by victims." Id.
Against this historical backdrop, the Supreme Court has explained that "the ordinary meaning" of restitution is to "restor[e] someone to a position he occupied before a particular event." Hughey v. United States, 495 U.S. 411, 416 (1990). More recently, the Court has recognized that the "primary goal of restitution is remedial or compensatory." Paroline v. United States, 572 U.S. 434, 456 (2014). For good reason. "Although restitution may be included in a criminal judgment," it has "distinctive attributes" that make it "much like a civil judgment." Nelson v. Colorado, 581 U.S. 128, 146 (2017) (Alito, J., concurring in the judgment). Restitution is an independent basis of recovery in criminal cases with a striking resemblance to compensatory damages in tort cases.
This is how restitution under the Mandatory Victims Restitution Act operates, functionally like a tort statute that harkens "back to a much earlier era of Anglo–American law, when criminal and tort proceedings were not clearly distinguished." United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999). Consistent with the compensatory aim of tort law, the MVRA mandates full restitution for the victim's actual losses without regard to the defendant's financial or other circumstances. See 18 U.S.C. § 3664(f)(1)(A). In this way, the decision to impose restitution turns on compensating the victim for her injury—not on the penal goals of retribution, deterrence, or rehabilitation.
Further underscoring restitution's civil character, the MVRA "does not allow victims to obtain double recovery or a windfall through restitution." United States v. Louper-Morris, 672 F.3d 539, 566 (8th Cir. 2012). If restitution were punitive, the victim's injury or her total recovery wouldn't matter. But "[r]estitution recognizes rights in the victim, and this is a principal source of its strength." Randy Barnett, Restitution: A New Paradigm of Criminal Justice, 87 Ethics 279, 291 (1977). The Court should affirm that, as a matter of history and tradition, restitution remains what it has always been—a non-punitive remedy that compensates crime victims. As a result, statutes that provide for restitution—like the Mandatory Victims Restitution Act and the Michigan statute at issue in Ms. Ricketts-Holder's case—are categorically compensatory and therefore not subject to the Ex Post Facto Clause.
Our amicus brief also provides an additional reason for affirming: Even if the Supreme Court declines to adopt the categorical approach that history and tradition require, then the Court must undertake an individualized purpose-or-effect analysis that focuses on the particular statute under which restitution was imposed to determine whether the Ex Post Facto Clause applies. Numerous States—including Michigan in Neilly—have held that "restitution imposed" under their respective statutes "does not constitute punishment" that could be subject to the Ex Post Facto Clause. See, e.g., State v. McClelland, 357 P.3d 906, 909 (Mont. 2015); R.S. v. Commonwealth, 423 S.W.3d 178, 188 (Ky. 2014); People v. Foalima, 239 Cal. App. 4th 1376, 1398 (2015); State v. Lucas, 758 S.E.2d 672, 680 (N.C. Ct. App. 2014); State v. Freeman, 848 P.2d 882, 885 (Ariz. Ct. App. 1993). Under the purpose-or-effect approach, the "categorization of a particular pro[vision] as civil or criminal" for Ex Post Facto Clause purposes "is first of all a question of statutory construction." Kansas v. Hendricks, 521 U.S. 346, 361 (1997). As a result, any decision in the Ellingburg case reached under a purpose-or-effect test as applied to the MVRA should have limited significance for the retroactive application of other restitution statutes, as the Government has conceded in its briefing on these issues.
An analysis of the Michigan restitution statute in Ms. Ricketts-Holder's case confirms that it (like the MRVA) doesn't implicate the Ex Post Facto Clause, and also underscores that, at the very least, a one-size-fits-all result can't follow from the purpose-or-effect analysis. Like dozens of other state constitutional amendments, Michigan's victims' rights provision wasn't focused on punitive crime-control objectives, but on providing and protecting victims' procedural rights throughout the criminal-justice process. See Cassell, 56 U. Pac. L. Rev. at 436–37, 454, 495 n.830 (restitution in state and federal criminal-justice systems serves remedial, rather than punitive, purposes). In concluding that restitution was not punishment, the Michigan Supreme Court noted that the Michigan Constitution expressly enumerates a crime victim's right to restitution and authorizes the legislature to enact statutes "for the enforcement" of that right. 15 N.W.3d at 567 (quoting Mich. Const. art. 1, § 24). The Court then discussed the long-standing practice of using restitution to compensate victims before determining that "the focus of the current restitution statutes remains on the victims' losses rather than on further punishment of the defendant." Id. at 570. In reaching that conclusion, the Court explained that restitution under these statutes was "tailored to the harm suffered by the victim rather than the defendant's conviction or judgment of sentence." Id.
After detailing the various potential statutory measures of restitution, all of which are "tied to definable, specific costs and losses suffered by the victims of a defendant's crimes," the Michigan Supreme Court concluded that "the intent of the statutes is to provide a civil remedy for victims' injuries rather than to provide a criminal punishment for defendants" because "the amount of restitution is not dependent on the severity of the crime." Id.
Our amicus brief concludes that the order that Neilly make restitution to Ms. Ricketts-Holder for her son's funeral expenses, like the order that Ellingburg reimburse the bank for money he stole, simply doesn't violate the Ex Post Facto Clause. The Court should hold the defendants are not being punished when they are ordered to restore their victims to the positions they were in before the crime.
