By Mark Allenbaugh & Doug Passon
For decades, restitution has been the “Wild West” of federal sentencing—imposed with few due process protections, low evidentiary standards, and massive financial consequences for defendants. In 2024 alone, over $13.5 billion in restitution was imposed, often based on little more than victim impact statements and a preponderance of the evidence.
But a unanimous Supreme Court decision issued just days ago may have changed everything.
We are proud to share our latest article published in Law360, “Challenging Restitution Orders After Supreme Court Decision,“ which breaks down the seismic shift caused by the Court’s ruling in Ellingburg v. U.S.
The “Civil” vs. “Criminal” Debate is Over
Historically, the government has treated restitution as a quasi-civil penalty, allowing judges to determine amounts without a jury and without the strict protections of the Sixth Amendment.
In Ellingburg, decided on January 20, 2026, the Supreme Court unanimously held that restitution under the Mandatory Victims Restitution Act (MVRA) is “plainly criminal punishment” for purposes of the Ex Post Facto Clause.
Why This Matters: The Apprendi Domino Effect
This recharacterization is not just a matter of semantics. As we detail in the article, if restitution is a criminal penalty, the protections of the Sixth Amendment must apply.
This means the “Apprendi dominoes” are beginning to fall. In our view, the Ellingburg decision implies that:
Restitution amounts must be alleged in the indictment.
Facts increasing the restitution amount must be found by a jury beyond a reasonable doubt (unless admitted by the defendant).
The current practice of judges finding loss amounts by a mere preponderance of the evidence is likely unconstitutional.
Strategic Takeaways for Counsel
The floodgates for litigation are now open. Our article provides specific guidance on how defense counsel should navigate this new landscape, including:
Objecting to restitution orders where the amount was not alleged in the indictment.
Renegotiating plea agreements that stipulate restitution amounts.
Appealing or collaterally attacking existing orders based on this new precedent.
Download the Full Article
To understand the full scope of the Ellingburg decision and what it means for your clients, read our comprehensive Law360 analysis in the full article below.
Free Infographic
For a visual expression of the impact of these changes, see our new Ellingburg infographic here.
At SentencingStats.com, Inc., included in our sentencing data, which covers over 20 years of federal sentencings nationwide, is data on restitution amounts. Restitution awards are a significant component of the federal criminal justice system with some estimates indicating the Department of Justice is collecting around $1 billion in restitution each year with billions more remaining outstanding. Contact us is you’d like data-driven support for your restitution plea negotiations, challenges or trials. For more in depth information, read our Ellingburg ruling analysis here.
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