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.
