SCOTUS Rules MVRA Restitution Is Criminal Punishment: What Comes Next?

On January 20, 2026, the U.S. Supreme Court issued a unanimous decision in Ellingburg v. United States, holding that restitution imposed under the federal Mandatory Victims Restitution Act (MVRA) constitutes criminal punishment. The court reached this conclusion in the context of the ex post facto clause, rejecting prior lower-court decisions that characterized restitution as primarily a civil or compensatory remedy. 

The core holding of Ellingburg is narrow but important: because MVRA restitution is punitive, it is subject to constitutional limitations that apply to criminal penalties.

This ruling is likely to trigger significant litigation over the basic foundations of statutory restitution. Historically, courts have permitted judges to determine restitution amounts by a preponderance of the evidence, often without affording traditional opportunities to cross-examine witnesses claiming losses. Ellingburg may fundamentally disrupt that framework. 

By squarely labeling MVRA restitution as criminal punishment, the Supreme Court has arguably brought restitution within the Apprendi framework, which requires that any fact increasing a criminal penalty be found by a jury beyond a reasonable doubt or admitted by the defendant. If this analysis holds and extends, restitution amounts may need to be presented to the grand jury, charged in indictments, and ultimately submitted to trial juries for determination of loss amounts beyond a reasonable doubt.

In the coming months, federal courts are likely to see a wave of motions arguing that restitution cannot be imposed without jury determinations. The Supreme Court has now set the table; whether it ultimately extends Sixth Amendment protections to restitution will be one of the more consequential criminal procedure questions to watch in the future. 

For practitioners, the decision underscores the need to approach restitution with renewed care. Defense counsel should review charging documents to identify which restitution statutes may apply and how loss amounts are alleged. In plea negotiations, parties should consider whether explicit admissions regarding restitution are advisable or necessary to avoid future disputes. At trial, counsel should be attentive to the possibility that juries may ultimately play a role in determining loss amounts. And after trial, existing restitution orders may warrant fresh scrutiny in light of these evolving constitutional arguments. 

In short, restitution should no longer be treated as a routine afterthought, but as a substantive component of the litigation strategy.

If you have questions or would like to learn more about how this U.S. Supreme Court ruling could affect you, please contact your primary RJO attorney. You can also reach out to White-Collar Criminal Defense Practice Group chair Lauren Kramer Sujeeth or shareholder Gregory P. Rosen.