Restitution is one of the easiest ideas in criminal law to support. If someone causes harm, they should repay the loss. It has the ring of responsibility and fairness. It sounds like the rare part of the system that might actually help victims rather than merely punish defendants.
But federal restitution often does not work that way. Instead of functioning as meaningful compensation, it too often becomes a second sentence that lingers long after prison, supervision, and the rest of the criminal case have faded. Victims are told help is coming, defendants are hit with crushing financial obligations they cannot meet, and the government continues collecting, monitoring, and escalating consequences even when actual repayment is unrealistic.
On January 20, 2026, the Supreme Court issued an important decision that forces a more honest conversation. In Ellingburg v. United States, the Court held unanimously that restitution under the Mandatory Victims Restitution Act is plainly criminal punishment.
This matters because for years, restitution has lived in an uneasy category where courts and policymakers talk about it as “compensation” while defendants experience it like punishment. Now the Supreme Court has said the quiet part out loud.
And it arrives at a moment when the National Association of Criminal Defense Lawyers has released a sweeping report explaining how federal restitution has turned into what they call “empty pockets and empty promises," something written about here in the fall of 2025.
NACDL, which filed an amicus brief in the case hailed the decision as a definitive rejection of the "legal fiction" that restitution is a mere civil remedy. The ruling means the government can no longer retroactively hike interest or extend payment deadlines on old cases, effectively moving the goalposts on people who have already served their time.
The basic facts of Ellingburg are straightforward. Holsey Ellingburg committed his offense before the Mandatory Victims Restitution Act (MVRA) became law, but he was sentenced after its enactment and ordered to pay $7,567.25 in restitution. Years later, he argued that continuing to enforce the restitution order violated the Constitution’s ban on ex post facto laws.
The Eighth Circuit had held MVRA restitution was not punishment, meaning the Ex Post Facto Clause did not apply. The Supreme Court reversed.
The Court’s reasoning relied on the structure and language of the statute itself. The MVRA labels restitution as a “penalty” for a criminal “offense,” applies only to criminal defendants, and is imposed at sentencing alongside imprisonment and fines.
The Court also noted that unpaid restitution can affect supervision and can lead to imprisonment where alternatives do not adequately serve punishment and deterrence.
Even though Congress intended restitution to compensate victims, the Court emphasized a key distinction: victims do not control the process. They cannot initiate restitution like a civil case, and they cannot settle it the way private parties can settle a lawsuit.
That combination of features made the conclusion simple. Restitution under the MVRA is punishment.
Calling restitution punishment is not just a technical label. It changes how we should evaluate it. Punishment carries constitutional consequences, procedural protections, and a basic requirement of proportionality. It also affects how we describe what is happening to people who carry restitution debt for decades.
The NACDL report explains that criminal restitution has become a form of punishment whose compensation goals are eclipsed by punitive effects. That description is not rhetorical flourish. It reflects how federal restitution works as a system of long term financial control.
Restitution orders attach as liens, wages can be garnished, assets can be seized, and people can be forced into constant reporting and scrutiny.
Even after someone has completed the incarceration part of a sentence, they can remain tethered to the court system because the debt remains.
Victims, meanwhile, are often given an expectation of compensation that does not materialize. If restitution is supposed to make victims whole, it has a glaring credibility problem. NACDL reports that federal restitution debt totals about $110 billion outstanding, with about $100 billion deemed uncollectible.
Victim compensation is the moral engine of restitution policy, but the outcomes are often bleak.
Part of the story is that restitution is frequently ordered in amounts that are impossible to collect. NACDL notes that the average federal restitution order is more than $3.3 million, often including interest calculations. Many people ordered to pay restitution do not have the ability to pay the full amount, especially as interest and penalties pile on.
Victims also do not always look like the public imagines. NACDL reports federal agencies were identified as the crime victim in almost 40% of cases where restitution was ordered.
“You can’t just slap a ‘civil’ label on a penalty to bypass the Constitution and keep people under the government’s thumb forever,” said Lisa Wayne, NACDL Executive Director. “This ruling is a victory for the rule of law and for the thousands of individuals who have been shackled by debt long after their prison cells were opened. We have finally recognized that you cannot separate restitution from the Constitution. It is time for a system that offers true restoration and dignity, rather than a permanent cycle of despair.”
Restitution can still be imposed or extended, creating a system where the payment obligation can exist even without a straightforward compensatory purpose.
At the heart of the federal problem is a feature that many non lawyers find shocking when they first hear it. Under the MVRA, courts typically are not permitted to consider a defendant’s ability to pay when calculating restitution.
That is how a legal remedy described as compensation turns into punitive fiction. The system can demand “full payment” on paper while knowing it will never arrive. Defendants leave court with life changing numbers attached to their names, and victims are left with a promise that is statistically unlikely to be fulfilled.
This is also why the Court’s recognition matters. Once restitution is acknowledged as punishment, the case for requiring realistic proportionality becomes much harder to dismiss.
Ellingburg is not a complete solution. But it is a major shift in how restitution must be understood, and it points directly toward reforms that are long overdue.
NACDL also argues that restitution statutes’ prohibition on considering ability to pay likely violates the Eighth Amendment’s Excessive Fines Clause and conflicts with the anti ruination principle, the idea that financial penalties should not destroy a person’s livelihood.
The report also highlights due process concerns, including post sentencing restitution orders and the fact that not every circuit recognizes a right for the defendant to be present at restitution hearings.
If restitution is punishment, then the process for imposing it should look like sentencing, not like an afterthought. The stakes are too high for anything else.
Reform starts with honesty. The current system is built around two competing stories: that restitution is primarily about victim compensation, and that it should be mandatory and untethered to ability to pay. Those stories cannot coexist without producing exactly what we have now: massive uncollectible debt, disappointed victims, and defendants trapped in lifelong financial supervision.
Imagine a sentencing courtroom where restitution is treated as a real part of the sentence, not the administrative fine print at the bottom. Instead of rushing through a restitution number because the prison term is the only thing that feels urgent, the system would slow down and ask questions that actually matter. Who is the victim? What is the actual loss? What has already been repaid, reimbursed, or recovered? What amount can be paid realistically without ensuring the defendant will never fully return to stable work, housing, and family life?
In that courtroom, restitution would come with procedures that match its weight. NACDL urges recognizing restitution hearings as a critical stage where the defendant has a right to be present.
The system would stop issuing restitution orders outside the presence of the person who must live with them, and stop normalizing the idea that debt can be imposed first and explained later.
Then would come the hardest but most necessary change: admitting that ability to pay is not a loophole, it is the reality that determines whether restitution can ever succeed. NACDL recommends amending federal statutes so judges are required to consider a defendant’s financial resources and ability to pay.
A smaller realistic order paid consistently often provides more compensation than a huge number that lives on paper forever.
Finally, the system would stop adding punitive extras that do not help victims. NACDL recommends limiting restitution to actual losses, eliminating joint and several liability, and removing interest and penalties.
Those changes do not erase accountability. They restore proportionality. They also make restitution more credible as a promise to victims rather than a symbolic weapon aimed at defendants.
The Supreme Court has now declared what practice has already revealed. MVRA restitution is criminal punishment.
That decision should push courts and lawmakers to stop treating restitution as an accessory to sentencing and start treating it as sentencing itself. Victims deserve more than paperwork. Defendants deserve punishment that is constitutional and proportional. And the system deserves rules that do not manufacture failure for everyone involved.
The question after Ellingburg is not whether restitution is punishment. The Supreme Court answered that. The question now is whether we are willing to reform punishment that no longer matches its stated purpose.
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