Ellingburg v. United States

Summary

Restitution under the Mandatory Victims Restitution Act of 1996 is criminal punishment for purposes of the Ex Post Facto Clause.

Text

1 (Slip Opinion) OCTOBER TERM, 2025 
Syllabus 
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued. 
The syllabus constitutes no part of the opinion of the Court but has been 
prepared by the Reporter of Decisions for the convenience of the reader. 
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 
SUPREME COURT OF THE UNITED STATES 
Syllabus 
ELLINGBURG v. UNITED STATES 
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE EIGHTH CIRCUIT 
No. 24–482. Argued October 14, 2025—Decided  January 20, 2026 
The Mandatory Victims Restitution Act of 1996 requires defendants 
convicted of certain federal crimes to pay monetary restitution to 
victims. Although petitioner  Ellingburg committed his crime before 
the MVRA’s enactment, he was sentenced under the MRVA and 
ordered to pay $7,567.25 in restitution.  Ellingburg raised an Ex Post 
Facto Clause challenge to his continued restitution obligation.  The 
Eighth Circuit concluded that re stitution under the MVRA is not 
criminal punishment subject to the Ex Post Facto Clause. 
Held: Restitution under the MVRA is plainly criminal punishment for
purposes of the Ex Post Facto Clau se.  Whether a law violates the Ex 
Post Facto Clause requires evaluating whether the law imposes a 
criminal or penal sanction as opposed to a civil remedy.  That question
is one “of statutory construction” that requires the Court to “consider 
the statute’s text and its structure.”  Smith v. Doe, 538 U. S. 84, 92 
(quotation marks omitted).  When viewed as a whole, the MVRA makes 
abundantly clear that restitution is criminal punishment.  The MVRA 
labels restitution as a “penalty” for a criminal “offense.”  18 U. S. C. 
§3663A(a)(1).  Only a criminal defendant convicted of a qualifying 
crime may be ordered to pay restitution. Restitution is imposed at
sentencing for that offense together with other criminal punishments 
such as imprisonment and fines. And at the sentencing proceeding
where restitution is imposed, the Government, not the victim, is the 
party adverse to the defendant.  Further, the federal MVRA restitution 
regime is codified in Title 18, “C rimes and Criminal Procedure,” and 
the statutory provisions authorizing restitution orders are contained 
in Chapter 232 of that Title, en titled “Miscellaneous Sentencing 
Provisions.” A district court im posing restitution must follow the

2 ELLINGBURG v. UNITED STATES 
Syllabus 
procedures applicable to other criminal penalties.
The Court’s preceden ts have understood restitution under the 
MVRA to be criminal punishment.  See Manrique v. United States, 581 
U. S. 116, 118.  And the Court’s precedents on related issues further 
buttress the conclusion that MVRA restitution is criminal 
punishment.  See United States  v. Bajakajian, 524 U. S. 321, 328; 
United States v. One Assortment of 89 Firearms , 465 U. S. 354, 363– 
366. 
Finally, while Congress intended restitution under the MVRA to
both punish offenders and compensate victims, victims cannot initiate
or settle the restitution process as  they would if it were a civil 
proceeding. The text and struct ure of the Act demonstrate that 
Congress intended restitution und er the Act to impose criminal
punishment.  Pp. 2–5. 
113 F. 4th 839, reversed and remanded. 
KAVANAUGH, J., delivered the opinion for a unanimous Court.  THOMAS, 
J., filed a concurring opinion, in which GORSUCH, J., joined.

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Opinion of the Court 
NOTICE: This opinion is subject to formal revision before publication in the 
United States Reports. Readers are requested to notify the Reporter of 
Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
[email protected], of any typographical or other formal errors. 
SUPREME COURT OF THE UNITED STATES 
No. 24–482 
HOLSEY ELLINGBURG, JR., PETITIONER 
v. UNITED STATES 
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT 
[January 20, 2026]
 JUSTICE KAVANAUGH delivered the opinion of the Court. 
Under the Mandatory Victims Restitution Act of 1996, 
defendants convicted of certain federal crimes must pay 
monetary restitution to the victims.  That Act, known as the 
MVRA, became law on April 24, 1996. Petitioner 
Ellingburg was sentenced later in 1996 and ordered to pay 
restitution in the amount of $7,567.25. He has not yet
satisfied that obligation.
Ellingburg has now raised an Ex Post Facto Clause 
challenge to his continued restitution obligation because he
committed his crime before the enactment of the MVRA. 
The Ex Post Facto Clause issue turns in part on the
threshold question of whether restitution under the MVRA 
is criminal punishment.  Applying Circuit precedent, the
U. S. Court of Appeals for the Eighth Circuit concluded that
restitution under the MVRA is not criminal punishment.
113 F. 4th 839, 841–842 (2024).  We now reverse.  
In this Court, Ellingburg and the United States agree
that the Eighth Circuit erred and that MVRA restitution is 
criminal punishment. The Court therefore appointed John
F. Bash as amicus curiae to defend the judgment of the

2 ELLINGBURG v. UNITED STATES 
Opinion of the Court 
Eighth Circuit. 605 U. S. 908 (2025).  He has ably
discharged his responsibilities.
When determining whether a law violates the Ex Post 
Facto Clause, the Court must evaluate whether the law 
imposes a criminal or penal sanction as opposed to a civil
remedy. Assessing whether “a statutory scheme is civil or 
criminal is first of all a question of statutory construction” 
that requires the Court to “consider the statute’s text and 
its structure.”  Smith v. Doe, 538 U. S. 84, 92 (2003) 
(quotation marks omitted).
1 
Here, the statutory analysis is straightforward: 
Restitution under the MVRA is plainly criminal 
punishment for purposes of the Ex Post Facto Clause.
2 
Numerous features of the MVRA lead to that conclusion. 
The MVRA labels restitution as a “penalty” for a criminal
“offense.” 18 U. S. C. §3663A(a)(1). A court may order
restitution only with respect to a criminal “defendant” and
only after that defendant’s conviction of a qualifying crime. 
Ibid. Restitution is imposed during “sentencing” for the 
offense. Ibid. At the sentencing proceeding where
restitution is ordered, the Government, not the victim, is 
the party adverse to the defendant. 
At sentencing, restitution is imposed together with other
criminal punishments such as imprisonment and fines. 
Indeed, for misdemeanors, restitution may be “in lieu of ” 
those punishments, making restitution the sole 
—————— 
1 If the text and structure of a statute do not demonstrate that 
Congress intended criminal punishment, the statute may still be deemed
criminal or penal if the “party cha llenging the statute provides ‘the 
clearest proof’ that ‘the statutory sc heme [is] so punitive either in 
purpose or effect as to negate [the Government’s] intention’ to deem it
‘civil.’ ” Kansas v. Hendricks, 521 U. S. 346, 361 (1997) (quoting United 
States v. Ward, 448 U. S. 242, 248–249 (1980)). 
2 Amicus contends that Ellingburg’s restitution was not imposed under 
the MVRA even though Ellingburg was sentenced after the MVRA took 
effect in 1996.  But the Eighth Circuit decided this case on the 
understanding that the MVRA was applied to Ellingburg.

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Opinion of the Court 
punishment for a federal offens e in certain circumstances. 
Ibid. In addition, when a defendant does not make the 
required restitution payments, the court may modify the
terms of his supervised release or probation and impose
imprisonment if the court determines that “alternatives to
imprisonment are not adequate to serve the purposes of 
punishment and deterrence.” §§3614(b)(2), 3613A(a)(1). 
As a further sign that MVRA restitution is criminal
punishment, the federal MVRA restitution regime is
codified in Title 18, “Crimes and Criminal Procedure.” The 
main statutory provisions authorizing restitution orders, 
§3663 and §3663A, are contained in Chapter 232 of Title 18,
entitled “Miscellaneous Sentencing Provisions.” Another 
statutory provision, §3556, stat es that a court “shall order 
restitution” in “imposing a se ntence” for covered offenses.
That provision is housed in Chapter 227 of Title 18, entitled 
“Sentences.” The statute also refers to a “sentence that 
imposes an order of restitution.”  §3664(o). When imposing
restitution, a district court must follow the procedures 
applicable to other criminal penalties, including the 
Federal Rules of Criminal Procedure.  See §3664(c). And 
§3663(c) directs the U. S. Sentencing Commission to 
promulgate criminal sentencing guidelines for restitution. 
§208, 110 Stat. 1240; §3663(c)(7).
When viewed as a whole, then, the MVRA makes 
abundantly clear that restitution is criminal punishment. 
We are not saying that all of the statutory features present 
here are necessary to constitute criminal punishment, but 
they are sufficient.
Given the statutory text and structure, it comes as no 
surprise that this Court’s precedents have understood
restitution under the MVRA to be criminal punishment. In 
Manrique v. United States, the Court stated that the MVRA 
requires courts “to impose restitution as part of the 
sentence.” 581 U. S. 116, 118 (2017).  In Pasquantino  v. 
United States, the Court explained that restitution under

4 ELLINGBURG v. UNITED STATES 
Opinion of the Court 
the MVRA is designed “to mete out appropriate criminal 
punishment.” 544 U. S. 349, 365 (2005).  And in Paroline v. 
United States, the Court repeated that description.  572 
U. S. 434, 456 (2014).
This Court’s precedents on related issues further buttress
the conclusion that MVRA restitution is criminal 
punishment. For example, forfeiture under 18 U. S. C. 
§982(a)(1)—like restitution under the MVRA—occurs at the 
culmination of a criminal proceeding and requires
conviction of an underlying crime.  That forfeiture, the 
Court concluded, is criminal punishment. See United 
States v. Bajakajian, 524 U. S. 321, 328 (1998).  By contrast,
the Court determined that the forfeiture of firearms under 
18 U. S. C. §924(d) ordered during an in rem  proceeding is
a civil sanction. United States  v. One Assortment of 89 
Firearms, 465 U. S. 354, 363–366 (1984).
As the Government cautions, not everything that occurs
at criminal sentencing or even that appears in a criminal
judgment may necessarily be part of the punishment.  See 
Tr. of Oral Arg. 22–23.  But we need not explore that point 
further here because, for the reasons we have explained,
MVRA restitution is criminal punishment. 
Amicus relies heavily on Smith v. Doe, 538 U. S. 84. 
There, this Court considered a law requiring a defendant 
convicted of certain crimes to register as a sex offender.  The 
Court held that the registration mandate was civil.  The 
legislature adopted “distinctly civil procedures” for the
imposition of registration requirements.  Id., at 96 
(quotation marks omitted). By contrast, to reiterate what 
we said above, MVRA restitution is labeled as a penalty, is 
codified in the criminal code, is predicated on a criminal 
conviction, is imposed against a criminal defendant, is 
sometimes imposed in lieu of other penalties, is ordered at 
sentencing where the United States is the adverse party, 
and can result in resentencing when the defendant refuses 
to pay. So Smith v. Doe does not control.

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Opinion of the Court 
It is true, as amicus thoroughly explains, that the MVRA 
seeks to compensate crime vi ctims, a nonpunitive goal. 
Several provisions of the MVRA reflect that objective, such 
as a provision requiring that restitution amounts be based 
on a victim’s loss. §3664(f )(1)(A); see also, e.g., §3664(j).
But those provisions show only that Congress intended
restitution under the MVRA to both punish and 
compensate. And so long as the text and structure of the 
Act demonstrate that Congress intended at least “to impose 
punishment,” that “ends the inquiry.”  Smith, 538 U. S., at 
92; see Paroline, 572 U. S., at 456; Pasquantino, 544 U. S., 
at 365. 
To be sure, as amicus points out, victims receive notice of
sentencing proceedings and are consulted by prosecutors.
But outreach to victims and some participation by victims
in criminal proceedings are not unusual.  See, e.g., §3771(a).
With respect to restitution, the key point is that victims do
not have the power to initiate or settle the restitution 
process as they would if it were a civil proceeding.
Our ruling today does not mean that a restitution statute 
can never be civil. But the statutory text and structure of 
the MVRA demonstrate that restitution under that Act is 
criminal punishment.
For those reasons, we reverse the judgment of the U. S.
Court of Appeals for the Eighth Circuit and remand the 
case for further proceedings consistent with this opinion. 
On remand, the Court of Appeals may consider the 
Government’s separate arguments for affirmance of the
District Court’s judgment. 
It is so ordered.

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THOMAS, J., concurring 
SUPREME COURT OF THE UNITED STATES 
No. 24–482 
HOLSEY ELLINGBURG, JR., PETITIONER 
v. UNITED STATES 
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT 
[January 20, 2026]
 JUSTICE THOMAS, with whom J USTICE GORSUCH joins,
concurring. 
I join the Court’s opinion in full because it correctly ap-
plies our precedent.  I write separately to clarify the foun -
dation of that precedent.  This Court’s 1798 decision in Cal-
der v. Bull, 3 Dall. 386, established that the Ex Post Facto 
Clauses forbid only those retroactive laws that impose
“punishment” for a “crime.”  Id., at 386, 389–391 (opinion of 
Chase, J.). Over the 228 years since Calder, the Court has 
struggled to articulate what it means for a law to impose
punishment for a crime, and thus to be subject to the Ex 
Post Facto Clauses. The Court’s more recent precedents 
have implemented Calder through two multifactor tests 
that turn largely on whether the legislature labels the law 
as criminal or civil. But in 1798, “punishment” for a “crime” 
would have been understood to refer to any coercive penalty
for a public wrong.  Many laws that are nominally civil to -
day would therefore have been subject to the Ex Post Facto 
Clauses under Calder.  I would restore Calder’s approach to
the Ex Post Facto Clauses. 
I 
The Constitution twice prohibits ex post facto laws.  As to 
the Federal Government, it provides that “No Bill of Attain-
der or ex post facto Law shall be passed.”  Art. I, §9, cl. 3.

2 ELLINGBURG v. UNITED STATES 
THOMAS, J., concurring 
As to the States, it provides that “No State shall . . . pass
any Bill of Attainder, ex post facto Law, or Law impairing 
the Obligation of Contracts.”  Art. I, §10, cl. 1.  In its general
sense, a law is ex post facto —meaning “after the fact”—
when it applies retroactively to conduct that occurred be -
fore the law was enacted. 
 The two Ex Post Facto Clauses reflected the importance
of the protection to the Founding Fathers. James Iredell 
believed that the protection against ex post facto laws was 
“the most essential right of all,” which was worth “ten thou-
sand declarations of rights” without it. Answers to Mr. Ma-
son’s Objections to the New Co nstitution, in Pamphlets on
the Constitution of the United States 334, 368 (P. Ford ed. 
1888) (reprint 1968). “A man may feel some pride in his
security,” Iredell wrote, “when he knows that what he does
innocently and safely to-day in accordance with the laws of
his country, cannot be tortured into guilt and danger to-
morrow.” Ibid. In the Federalist Papers, Alexander Ham-
ilton placed “the prohibition of ex post facto laws” among the 
greatest “securities to liberty and republicanism.”  The Fed-
eralist No. 84, p. 571 (P. Ford ed. 1898). James Madison 
argued that ex post facto laws are “contrary to the first prin-
ciples of the social compact.” Id., No. 44, at 296. 
Ex post facto laws lack legitimacy because laws must pre-
cede the actions that they govern.  Laws regulating actions 
after the fact “deprive citizens of notice and fair warning
and are, therefore, an affront to man’s ‘reason and 
freewill.’” Peugh v. United States, 569 U. S. 530, 561 (2013) 
(T
HOMAS, J., dissenting) (quoting 1 W. Blackstone, Com-
mentaries on the Laws of England 39 (1765) (Blackstone)).
As Blackstone explained, “it is impossible that the party 
could foresee” that his actions would become unlawful if 
they were lawful when he took them. Id., at 46. When a 
man had no notice that his actions were unlawful, “all pun-
ishment for not abstaining must of consequence be cruel
and unjust.” Ibid.  A n ex post facto  law is even “more

3  Cite as: 607 U. S. ____ (2026) 
THOMAS, J., concurring 
unreasonable,” Blackstone thought, than the reviled prac-
tice of the Roman emperor “Caligula, who . . . wrote his laws 
in a very small character, and hung them up upon high pil-
lars, the more effectually to ensnare the people.” Ibid. 
Many believed that no constitutional prohibition was nec-
essary because an ex post facto law would be invalid as con-
trary to natural law.  At the Constitutional Convention, Ol-
iver Ellsworth argued that “[i]t cannot . . . be necessary to 
prohibit” ex post facto laws because “no lawyer, no civilian 
. . . would not say that ex post facto laws were void of them-
selves.” 2 M. Farrand, Records of the Federal Convention 
of 1787, p. 376 (1966) (Farrand).  James Wilson thought 
that a constitutional prohibition on ex post facto laws would 
suggest that the Convention denied that such laws were al-
ready forbidden by natural law, to its embarrassment. “It 
will bring reflexions on the Constitution—and proclaim 
that we are ignorant of the first principles of Legislation.” 
Ibid. In fact, “[a]ll the delegates who spoke explicitly or im-
plicitly regarded an ex post facto law as a violation of natu-
ral law, and most of them therefore thought it unnecessary 
to include such a basic natural law principle in the written
constitution.” S. Sherry, The Founders’ Unwritten Consti -
tution, 54 U. Chi. L. Rev. 1127, 1157 (1987).  The Conven-
tion nonetheless adopted the Ex Post Facto Clauses after it 
was urged that “the Judges can take hold of ” them if a leg-
islature ever enacts such a law. 2 Farrand 376 (William -
son). 
II 
The lodestar of this Court’s ex post facto jurisprudence is 
Calder v. Bull, which established that the Ex Post Facto 
Clauses apply only to laws that impose “punishment” for 
“crime[s].” 3 Dall., at 389–391. Calder—and especially Jus-
tice Chase’s lead seriatim  opinion—has since provided the 
definitive gloss on the Ex Post Facto Clauses. Justice 
Chase’s definition of “ ex post facto  laws” continues to

4 ELLINGBURG v. UNITED STATES 
THOMAS, J., concurring 
“provid[e] an authoritative account of the scope of the Ex 
Post Facto Clause.” Stogner v. California, 539 U. S. 607, 
611 (2003); accord, e.g., Peugh, 569 U. S., at 532–533.  This 
Court’s modern precedents, including today’s opinion, de-
cide whether a law is subject to the Ex Post Facto Clauses 
based on whether it satisfies Calder’s requirement that it 
be “criminal or penal.”  Weaver v. Graham, 450 U. S. 24, 29 
(1981); see also ante, at 2. But this Court’s implementation
of Calder seems to have lost sight of how Calder would have 
been understood when it was decided. 
Calder concerned a state legislature’s intervention in a
traditional private-law dispute. The case arose out of the 
probate proceedings for the estate of a Connecticut man 
named Normand Morison. In 1779, Morison wrote a will 
leaving his property to his wife Abigail and her heirs. See 
8 The Documentary History of the Supreme Court of the
United States, 1789–1800, p. 89 (M. Marcus ed. 2007).  Soon 
after Morison wrote his will, he and Abigail had a son. Ibid. 
When the son was young, Morison died. Ibid. Abigail
started the probate process so that she could inherit Mori-
son’s property as his will promised.  Ibid. But the probate
judge held up the process because he wanted to check 
whether the birth of their son affected the will’s validity. 
Ibid. At the time, Abigail did not mind the delay because 
the default intestacy rules would have given the property
to her and her son anyway. Id., at 89–90. 
But later events jeopardized Abigail’s right to inherit Mo-
rison’s property.  First, Connecticut changed the default in-
testacy rules so that, absent a valid will, property like Mo -
rison’s would pass to his near est blood relative, not to a 
surviving spouse like Abigail.  Id., at 90, and n. 9.  Second, 
the probate court, without telling Abigail, disapproved Mo-
rison’s original will. Id., at 90.  And third, a few years later,
Abigail and Morison’s son died. Ibid. After her son died, 
Abigail and her new husband Caleb Bull returned to pro-
bate court. Ibid. The Bulls were surprised to learn that the

5  Cite as: 607 U. S. ____ (2026) 
THOMAS, J., concurring 
probate court had disapproved Morison’s will years earlier 
without telling Abigail—apparently on the theory that he 
would have wanted to change it after his son was born. 
Ibid. And, since Connecticut had enacted new default in-
testacy rules in the meantime, the absence of a valid will
meant that Morison’s estate would pass on to his blood rel-
atives rather than to Abigail.  Ibid. Morison’s blood rela-
tives, the Calders, were suddenly the lawful heirs of his 
property. Id., at 90–91. 
Abigail and Caleb Bull petitioned the Connecticut Legis-
lature for relief.  They convinced the legislature that Mori-
son did not intend to revoke his will after his son died, so 
the legislature issued a decree in 1795 granting them a re-
hearing on the validity of Morison’s original will.  Id., at 91. 
The legislature’s 1795 decree effectively vacated the origi-
nal probate-court decision deeming the will void and 
granted a new hearing at which the probate court could ad-
judicate the will’s validity. Id., at 91, 107. The probate
court held a new hearing pursuant to the decree and con-
cluded that Morison’s original will was valid after all. Id., 
at 91. Having now lost in probate court, the Calders ap-
pealed this new decision and challenged the legislature’s
decree that had granted the Bulls a new hearing.  Id., at 
91–92. The Calders argued, eventually to this Court, that 
the legislature’s decree was an unconstitutional ex post 
facto law because it retroactively voided the probate court’s
original decision, which caused them to lose an inheritance 
that would otherwise have been theirs.  Id., at 92. 
In Calder v. Bull, this Court gave two reasons why the
legislature’s decree granting a new trial did not violate the
State Ex Post Facto Clause.  See Art. I, §10, cl. 1.  The first 
reason was that the legislature’s decree operated on a legal 
decision by a court, not a past action by the Calders.  There 
was nothing that the parties had done in the past that was 
“in any manner affected by the law or resolution of Connect-
icut.” 3 Dall., at 392 (opinion of Chase, J.).  “It does not

6 ELLINGBURG v. UNITED STATES 
THOMAS, J., concurring 
concern, or relate to, any act done by them.” Ibid. Instead, 
the decree effectively vacated a probate decision and gave
the court an opportunity to correct its decision, just like ap-
pellate courts do every day.  Ibid. The new hearing, after 
all, was conducted under the same substantive laws as were 
in force at the original hearing.  In fact, the Justices seemed 
to believe that the Connecticu t Legislature’s “resolution or 
law,” id., at 387, was not a legislative but a judicial act, con-
sistent with state legislatures’ traditional judicial power to
review state-court decision s—and thus could not be an ex 
post facto “law” at all. See id., at 395–396 (opinion of Pat-
erson, J.) (“[W]e may, in the present instance, consider the
Legislature of the State, as having acted in their customary 
judicial capacity”); id., at 398 (opinion of Iredell, J.) (“an ex-
ercise of judicial, not of legislative, authority”); id ., at 400 
(opinion of Cushing, J.) (“If the act is a judicial act, it is not 
touched by the Federal Constitution”). 
The more lasting legacy of Calder , however, was its sec-
ond reason.  Three of the four seriatim  opinions in Calder 
limited the Ex Post Facto Clauses to laws imposing criminal
punishment. On their view, the Clauses did not forbid 
other kinds of retroactive laws.  Justice Chase, in what has 
proved to be the most influential opinion, gave a compre-
hensive account of the scope of the Ex Post Facto Clauses. 
He understood the Clauses to be limited to retroactive laws 
imposing criminal punishment. He explained that the 
Ex Post Facto Clauses covered only those laws that “create” 
a “crime,” “aggravate” a crime, “encrease the punishment”
for a crime, or “change the rules of evidence, for the purpose 
of conviction.” Id., at 391. 
Justice Chase’s account implied that the Clauses did not
apply to other kinds of retroactive laws.  First, on his view, 
the Clauses did not touch priv ate law.  Justice Chase did 
“not think” that the Ex Post Facto Clause “was inserted to 
Secure the citizen in his private rights, of either property, or 
contracts.” Id., at 390.  Accordingly, the Clauses would not

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THOMAS, J., concurring 
prohibit a law that retroactive ly paused a debtor’s obliga-
tions to a creditor or voided a contract.  Such laws, in Jus-
tice Chase’s view, were governed by separate constitutional 
prohibitions on impairing the obligations of contracts and 
making anything but gold or silver a tender in payments of 
debts. Ibid.; see Art. I, §10, cl. 1.  Second, because the 
Clauses were meant as protections against the government, 
they did not apply to laws t hat retroactively made a law 
more lenient. They would not, for example, forbid a law 
that retroactively “molli fies the rigor of the criminal law.” 
Calder, 3 Dall., at 391 (opinion of Chase, J.).
The other two seriatim opinions in Calder that addressed 
the question agreed. Justice Paterson explained that “the 
meaning, annexed to the terms ex post facto laws, unques-
tionably refers to crimes, and nothing else.”  Id., at 396. 
Justice Iredell—an adamant proponent of the Ex Post Facto 
Clauses, see supra, at 2—likewise thought that they did not 
“extend to civil cases, to cases that merely affect the private
property of citizens.”  Calder, 3 Dall., at 400.  Instead, the 
Clauses applied only to laws that retroactively “inflict a
punishment” for an “offence.” Ibid. 
Some, myself included, have questioned whether Calder 
was right to limit the Ex Post Facto Clauses to laws impos-
ing criminal punishment. See, e .g., Satterlee v. Matthew-
son, 2 Pet. 380, 416, and n. (a) (1829) (opinion of Johnson, 
J.) (arguing that the Ex Post Facto Clauses protect more); 
O. Field, Ex Post Facto in the Constitution, 20 Mich. L. Rev. 
315, 331 (1922) (“[T]here have been reputable authorities,
both past and present, who incline to the view that the ex 
post facto provisions of the Constitution prohibited civil as
well as criminal legislation”); Eastern Enterprises  v. Apfel, 
524 U. S. 498, 538–539 (1998) (T
HOMAS, J., concurring). 
Others have defended Calder’s limitation. See, e .g., R. 
Natelson, Statutory Retroactivity: The Founders’ View, 39
Idaho L. Rev. 489, 493–494 (2003); C. Nelson, Originalism 
and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 578–

8 ELLINGBURG v. UNITED STATES 
THOMAS, J., concurring 
582 (2003). But often lost in that debate has been the ques-
tion of what Calder meant when it limited the Clauses to 
laws imposing criminal punishment. 
III 
This Court’s recent precedents have attempted to imple -
ment Calder’s limitation of the Clauses to criminal punish-
ment. But, in doing so, they have adopted a framework that 
turns largely on legislative labeling, has little basis in his-
tory, and is unnecessarily convoluted. 
A 
The modern precedents follow Calder’s limitation of the 
Ex Post Facto Clauses to laws that impose criminal punish-
ment. Based on “Justice Chase’s now familiar opinion in 
Calder,” this Court has repeatedly held that the Clauses
apply exclusively to laws that  “retroactively alter the defi -
nition of crimes or increase the punishment for criminal
acts,” but not to other kinds of retroactive laws.  Collins v. 
Youngblood, 497 U. S. 37, 41–43 (1990); see also, e.g., Kan-
sas v. Hendricks , 521 U. S. 346, 370 (1997); Smith v. Doe, 
538 U. S. 84, 92 (2003).
But in defining criminal punishment—and thus the scope 
of Calder’s limitation—the Court’s modern framework ap-
plies two multifactor tests deve loped in the 20th century.
The first multifactor test asks whether the legislature “in-
tended” the law to be viewed as criminal or penal. Smith, 
538 U. S., at 92–93; see also ante, at 2, n. 1.  Under this test, 
a law is subject to the Ex Post Facto Clauses “[i]f the inten-
tion of the legislature was to impose punishment.”  Smith, 
538 U. S., at 92.  But if “the intention was to enact a regu -
latory scheme that is civil and nonpunitive,” then a law is
presumptively not subject to the Ex Post Facto Clauses. 
Ibid.  This test has included up to five factors, most of which
allow a legislature to avoid the Clauses through labeling or
semantics.  Those five factors are whether the legislature

9  Cite as: 607 U. S. ____ (2026) 
THOMAS, J., concurring 
had a “ ‘preference’” for “ ‘one label or the other,’ ” id., at 93 
(quoting Hudson v. United States, 522 U. S. 93, 99 (1997)); 
whether the “codification” was in the criminal or civil code, 
Smith, 538 U. S., at 94; whether legislative history or simi-
lar indicators suggested nonpunitive goals, United States v. 
One Assortment of 89 Firearms , 465 U. S. 354, 364 (1984); 
whether the legislature provided traditional “safeguards
associated with the criminal process,” Smith, 538 U. S., at 
96; and whether the legislature gave enforcement power to
an agency with power to enforce civil laws, ibid. 
The second multifactor test, which applies only if the law 
survives the first test, asks whether the law’s other features 
render it criminal or penal.  See id., at 92.  Under this sec-
ond test, a law is subject to the Ex Post Facto Clauses if it 
is “so punitive either in purpose or effect as to negate [the 
legislature’s] intention to deem it civil.”  Ibid. (internal quo-
tation marks omitted). The Court has at times said that 
this second test is a function of up to seven factors: whether
the law involves an affirmative disability or restraint, im-
poses what has historically been regarded as a punishment,
requires a finding of scienter, promotes the traditional aims
of punishment, applies to behavior which is already a crime, 
lacks a rational alternative purpose, or is excessive in rela-
tion to that purpose. Kennedy v. Mendoza-Martinez, 372 
U. S. 144, 168–169 (1963); see Smith, 538 U. S., at 97 (ex-
plaining that Mendoza-Martinez factors “migrated” to ex 
post facto jurisprudence).  So long as a law survives the first 
test, “ ‘only the clearest proof ’” under the second test can 
make it subject to the Ex Post Facto  Clauses. Smith, 538 
U. S., at 92 (quoting Hudson, 522 U. S., at 100). 
B 
This modern framework is incongruous with the histori-
cal purpose of Ex Post Facto Clauses. The modern frame-
work, because of how much it turns on legislative labeling
and semantics, allows a legislature to manipulate when the

10 ELLINGBURG v. UNITED STATES 
THOMAS, J., concurring 
protection will apply.  Under the first test, for example, a 
legislature might be able to  impose a retroactive $10,000 
fine on some previously innocent conduct—such as drinking
coffee or going to the gym—if it labeled the law “civil,” 
placed it in the civil code, expressed a nonpunitive purpose, 
omitted protections for the accused, and let non-traditional
prosecutors (such as a health agency) enforce it.  See supra, 
at 2–3. Under the second test, the legislature might be able 
to prevail by aggravating the fair-notice problems that mo-
tivate the Clauses, such as by having its retroactive law im-
pose strict liability and then applying it only to previously 
innocent conduct. See Mendoza-Martinez, 372 U. S., at 
168–169. It is unlikely that a constitutional prohibition de-
signed to curb a “cruel and unjust” legislature, 1 Blackstone 
46, can be so easily manipulated by the same legislature.
See United States  v. Rahimi, 602 U. S. 680, 776 (2024) 
(T
HOMAS, J., dissenting) (explaining that the Constitution
does not “allow . . . majoritarian interests to determine” the 
scope of “constitutional rights”).
The modern framework is also convoluted.  It is difficult 
for courts, let alone ordinary ci tizens, to predict how this 
Court will weigh the modern framework’s combined twelve 
factors spread over two tests.  This Court’s own precedents 
admit that the twelve factors are “neither exhaustive nor 
dispositive,” United States v. Ward, 448 U. S. 242, 249 
(1980), and need not be given equal weights, Smith, 538 
U. S., at 105. Such “multifactor balancing test[s]” invite
“policy-driven, ‘arbitrary discretion.’ ”  Gamble  v. United 
States, 587 U. S. 678, 724 (2019) (T
HOMAS, J., concurring).
We should strive to avoid such unclear rules in any context, 
but especially when interpreting a constitutional guarantee
of clear notice. 
IV 
When Calder said that the Ex Post Facto Clauses apply
only to laws imposing punishment for crimes, it was

11  Cite as: 607 U. S. ____ (2026) 
THOMAS, J., concurring 
referring to an established category of laws.  A crime meant 
a “public wrong,” which is an injury to the sovereign in its
sovereign capacity. Calder therefore encompassed offenses
against the sovereign regardless of whether they were nom-
inally criminal or civil. And punishment simply referred to
the law’s coercive sanction—meaning a traditional depriva-
tion of life, liberty, or prop erty—redressing that public 
wrong. Applying this understanding would restore the
Clauses to their proper role without the problems attendant
to the more recent precedents. 
A 
The English common law divided all unlawful acts into
“private wrongs” and “public wrongs.”  See 3 Blackstone 2. 
Blackstone titled the third and fourth volumes of his Com-
mentaries, respectively, “Of Private Wrongs” and “Of Public
Wrongs.” This dichotomy was fundamental to English and
American law. 
Public wrongs were injuries to the sovereign.  A public
wrong was “a breach and violation of public rights and du -
ties, which affect the whole community, considered as a 
community.” Ibid. Because a public wrong injured the com-
munity, it was deemed an injury to the sovereign in his sov-
ereign capacity. 4 Blackstone 2–7.  It followed that an ac-
tion to redress a public wrong was brought on behalf of the 
sovereign, not the victim. J. Locke, Second Treatise of Civil 
Government 7 (J. Gough ed. 1948) (Locke). In concrete 
terms, actions for public wrongs were brought in England
on behalf of the King, and here on behalf of the State or the 
United States—typically by public prosecutors, rather than 
privately by the victims. The sovereign “is supposed by the 
law to be the person injured by every infraction of the public 
rights belonging to that community, and is therefore in all 
cases the proper prosecutor for every public offense.”  4 
Blackstone 2; see also Robertson v. United States ex rel. 
Watson, 560 U. S. 272, 279 (2010) (R
OBERTS, C. J.,

12 ELLINGBURG v. UNITED STATES 
THOMAS, J., concurring 
dissenting) (a criminal prosecut ion is an action “on behalf 
of the sovereign, seeking to vindicate a public wrong”).  Pub-
lic wrongs included all wrongs deemed injuries to the sov-
ereign and redressable by the sovereign, from murder to
mayhem to public nuisance. 4 Blackstone 5–6. 
Private wrongs, in contrast, were injuries to individuals
in their private capacity.  An action inflicted a private
wrong insofar as it infringed “the private or civil rights be-
longing to individuals, considered as individuals.” 3 Black-
stone 2. For example, a dispute with a fellow citizen over a 
land claim or a failure to pay a debt concerned a private 
wrong. “[I]f I detain a field from another man, to which the 
law has given him a right, this is a civil injury, and not a 
crime,” Blackstone explained, because “only the right of an 
individual is concerned, and it is immaterial to the public,
which of us is in possession of the land.”  4 Blackstone 5. 
Private wrongs were redressable by the individuals whose 
rights were violated, not the sovereign. 
A single act could be both a private wrong and a public 
wrong. Id., at 5–6. “The same acts will generally constitute 
a private injury, as well as a public crime.  A public punish-
ment is inflicted on the part of the state, to restrain such
conduct, and the party injured is entitled to a compensation 
for the injury he has sustained.”  2 Z. Swift, System of the
Laws of the State of Connecticut 292 (1796); accord ibid. 
(“If one man assaults and beats another, he is punished by 
a fine for disturbing the peace, and compelled to compen-
sate in money the person he has abused and wounded.”).
The private suit brought by the individual vindicated the
private wrong, and the public prosecution brought by the
sovereign vindicated the public wrong.  This overlap carries
forward to modern law: Thef t can be redressed through a 
tort suit brought by the victim and a criminal prosecution 
brought by the state. 
When the opinions in Calder spoke of “crimes,” they 
meant public wrongs. The prevailing definition of a “crime”

13  Cite as: 607 U. S. ____ (2026) 
THOMAS, J., concurring 
around the time of Calder was “a violation of law to the in-
jury of the public, a public offense.” N. Webster, A Compen-
dious Dictionary of the English Language 72 (1806) (Web -
ster). Blackstone used the terms “crimes” and “public 
wrongs” interchangeably.  See 4 Blackstone 1–5.  His fourth 
volume covered “public wrongs, or crimes and misdemean-
ors.” Id., at 1.1  The “common-law conception of crime,” this
Court has long recognized, was an “offense against the sov-
ereignty of the government.”  Heath v. Alabama, 474 U. S. 
82, 88 (1985). So Calder’s limitation of the Ex Post Facto 
Clauses to crimes would have originally been understood to 
include all public wrongs. 
Calder itself confirms this understanding. Justice Chase 
distinguished crimes not with nominally civil laws enforced 
by the sovereign, but with laws that merely “secure[d] pri-
vate rights,” like contract laws. 3 Dall., at 390. Justices 
Chase and Iredell used “crime” interchangeably with “of-
fence.” Ibid.; id., at 400 (opinion of Iredell, J.).  Justices 
Chase and Paterson said that their definitions tracked 
Blackstone’s. See id., at 391 (opinion of Chase, J.) (“Sir Wil-
liam Blackstone, in his commentaries, considers an ex post 
facto law precisely in the same  light I have done.”); id., at 
396 (opinion of Paterson, J.) (similar).  Justice Iredell ex-
plained in a contemporaneous opinion that the Ex Post 
Facto Clauses could be limited to crimes because “there . . . 
is little reason to apprehend a legislative interference for 
the sake of unjustly transferring property from one man to
another.” Minge v. Gilmour, 17 F. Cas. 440, 443, No. 9,631 
(CC NC 1798).  And, of course, the occasion for Calder’s dis-
tinction was a probate dispute, where only private rights 
are implicated.
2 
—————— 
1 Crimes and misdemeanors were for these purposes “syn-
onymous.” 4 Blackstone 5. 
2 Professor Caleb Nelson has read Calder along the same
lines: “By ‘criminal’ laws,” he has explained, “Justice Iredell

14 ELLINGBURG v. UNITED STATES 
THOMAS, J., concurring 
In turn, when Calder referred to criminal “punishment,”
it simply meant whatever coercive sanction—or deprivation 
of life, liberty, or property—the law imposed as redress for
committing those crimes. Blackstone understood punish-
ment to include the traditional “coercive penalties” that the 
law imposed as redress for a public wrong.  See 4 Black-
stone 7–8.  Dictionaries defined “punishment” broadly as 
“[a]ny infliction or pain imposed in vengeance of a crime,” 
S. Johnson, A Dictionary of the English Language (6th ed.
1785), or “any thing inflicted for a crime,” Webster 241.  The 
power of punishing an offender was the power to harm the 
offender in a way that was otherwise forbidden: “[N]o one 
ought to harm another in his life, health, liberty, or posses-
sions”—“unless it be to do justice on an offender.”  Locke 5 
(emphasis added); see also id ., at 6 (describing when “one
man may lawfully do harm to another, which is that we call
punishment”).
The Ex Post Facto Clauses therefore prohibit retroactive
laws that impose coercive penalties for public wrongs.  Con-
trary to the modern framework, it does not matter what the 
legislature labels the law, where it places the law, which
agency it vests enforcement with, what its stated goals
were, whether it provides safeguards for the accused, 
whether it requires a showing of scienter, or whether the 
conduct to which it applies is already a crime.  Contra, 
Smith, 538 U. S., at 96; Martinez-Mendoza, 372 U. S., at 
168–169. What matters is what the law does.  If it punishes 
a public wrong—or an injury to the sovereign in its sover-
eign capacity—then it is subject to the Ex Post Facto 
—————— 
and his colleagues may simply have meant laws that de-
fined offenses and imposed punishments for them,” even if 
“the penalties that they prescribed could be collected 
through civil suits.”  C. Nels on, Originalism and Interpre-
tive Conventions, 70 U. Chi. L. Rev. 519, 582, n. 255 (2003).

15  Cite as: 607 U. S. ____ (2026) 
THOMAS, J., concurring 
Clauses. If it changes merely private relations, such as the 
rules of contract or property or probate, then it is not. 
Whether a law is subject to the Ex Post Facto Clauses will 
therefore typically depend on how it is enforced. If it is en-
forced on behalf of the sovereign to redress a sovereign in-
jury, then it is subject to the Clauses.  See 4 Blackstone 2. 
If instead it is enforced by a private person to vindicate his
own private rights, then it is not.  In this case, for example, 
the law was subject to the Ex Post Facto Clauses because it 
was enforced against Ellingburg by the United States, not 
by the First Union National Bank, whose private rights El-
lingburg violated when he robbed it.  And the United 
States’s action was redressing a sovereign injury to the
community as a whole, not a private wrong.  Cf. 3 Black-
stone 257 (explaining that the King can bring “common law 
actions” to redress private wrongs to himself, such as an 
“action for trespass for taking away his goods”).
3
 Calder ’s understanding secures Ex Post Facto Clause pro-
tection in a wide range of contexts involving nominally civil
laws. Those contexts include civil proceedings seeking fines 
for public offenses. See, e.g., Army Corps of Engineers  v. 
Hawkes Co., 578 U. S. 590, 600 (2016) (describing “civil pen-
alties of up to $37,500 for each day [the challenger] violated 
the Act”). They include enforcement proceedings brought
by administrative agencies.  See Axon Enterprise, Inc. v. 
FTC, 598 U. S. 175, 196 (2023) (T
HOMAS, J., concurring) 
(describing the 20th-century rise of such proceedings). And 
they include municipal sanctions like speeding tickets.  “If 
—————— 
3 Sovereigns sometimes delega ted enforcement of public
wrongs to private persons.  But, unlike in actions redress-
ing private wrongs, the private persons in those circum-
stances acted “on behalf of the sovereign” and were subject 
to the sovereign’s control.  Robertson v. United States ex rel. 
Watson, 560 U. S. 272, 279 (2010) (R
OBERTS, C. J., dissent-
ing); see ibid. (collecting authorities).

16 ELLINGBURG v. UNITED STATES 
THOMAS, J., concurring 
one were to commit a minor traffic offense at a time the of-
fense was to be punished by a $25 fine, and the government 
were to then amend the statute and impose a fine of
$1,000,000 dollars, it would be nonsensical to treat that fine 
as non-punitive simply because the offense was processed 
civilly.” Brief for Professor Beth Colgan as Amicus Curiae 
8, n. 3.  Because all of these offenses impose punishments 
for public wrongs, Calder would treat them all as subject to 
the Ex Post Facto Clauses. 
B 
This understanding of Calder long prevailed.  Courts took 
the position that “the relevant line for the Clause’s scope” 
lay between “punishments imposed in response to public of-
fenses whether prosecuted crimi nally or civilly on the one 
hand, and purely private disputes on the other.”  Brief for 
Professor Beth Colgan as Amicus Curiae 5. This Court con-
firmed, contrary to the modern precedents, that “the ex post 
facto effect of a law cannot be evaded by giving a civil form
to that which is essentially criminal.”  Burgess v. Salmon, 
97 U. S. 381, 385 (1878).  The influential commentator 
Thomas Cooley likewise expl ained that a “law will be ex 
post facto in the constitutional sense” if it “subject[s] an in-
dividual to a pecuniary penalty” or “deprives a party of any
valuable right” retroactively, even  if “it does not in terms 
declare the acts to which the penalty is attached criminal.”
Constitutional Limitations 321 (6th ed. 1890). 
In a similar context, when a State sought nominally civil
fines against a company for doing business without proper
forms, this Court explained that the statute “was in the 
strictest sense a penal statute.”  Wisconsin v. Pelican Ins. 
Co., 127 U. S. 265, 299 (1888). The Court held that the 
nominally civil statute was penal because “[t]he cause of ac-
tion was not any private injury, but solely the offence com -
mitted against the State by violating her law.” Ibid. Like -
wise, “[t]he prosecution was in the name of the State.”  Ibid.

17  Cite as: 607 U. S. ____ (2026) 
THOMAS, J., concurring 
The Court explained that “[t]he real nature of the case is 
not affected by the forms provided by the law of the State”; 
these forms were “immaterial” to whether the law was 
criminal or penal in a constitutional sense. Ibid. Thus, the 
Court concluded, “[i]n whatever form the State pursues her 
right to punish the offence against her sovereignty,” an ac-
tion is criminal or penal in substance whenever it seeks to 
“compe[l] the offender to pay a pecuniary fine by way of
punishment for the offence.” Ibid. 
Other decisions followed the same reasoning.  For exam-
ple, when the United States brought a nominally civil ac -
tion for damages based on a public offense, the defendants
were entitled to other crimi nal-procedure protections be-
cause the action “was in its nature and essence, though not 
its form, a penal or criminal action.” United States v. 
Poyllon, 27 F. Cas. 608, 611, No. 16,081 (NY 1812).  And 
when a statute forbade “any fine or forfeiture under any pe-
nal statute,” the statute applied to a nominally civil action
for debt on behalf of the sovereign against someone who 
committed a public offense. Adams v. Woods, 2 Cranch 336, 
337, 340–341 (1805) (emphases deleted).  Chief Justice 
Marshall explained that the category of penal laws referred
“not to any particular mode of proceeding, but generally to
any prosecution, trial, or punishment for the offence.”  Ibid. 
This understanding of Calder harmonizes the Ex Post 
Facto Clauses with their historical purpose. It means that 
the Clauses ensure fair notice against government enforce-
ment actions, regardless of whether the legislature labels
them civil. As J
USTICE  GORSUCH has explained, today’s
“civil” laws “regularly impose  penalties far more severe 
than those found in many criminal statutes.”  Sessions v. 
Dimaya, 584 U. S. 148, 184 (2018) (opinion concurring in
part and concurring in the judgment). “Today’s ‘civil’ pen -
alties include confiscatory rather than compensatory fines,
forfeiture provisions that allow homes to be taken, remedies 
that strip persons of their professional licenses and

18 ELLINGBURG v. UNITED STATES 
THOMAS, J., concurring 
livelihoods, and the power to commit persons against their 
will indefinitely.’”  Ibid. This understanding also helps rec-
oncile Calder with its critics, many of whom have focused
on the injustice of allowing the government to retroactively
impose sanctions for public offenses that it deems civil. See, 
e.g., Brief for Professor Wayne A. Logan as Amicus Curiae 
31–32; cf. D. Troy, Retroactive Legislation 49–55 (1998). 
This understanding of Calder also simplifies the law.  Ra-
ther than making the Ex Post Facto Clauses’ application de-
pend on twelve factors with indeterminate weights, this un-
derstanding makes it depend on a simple legal inquiry with
a long pedigree in our legal tradition—whether the law im-
poses a coercive penalty to redress a public wrong.  See, e.g., 
Pelican Ins. Co., 127 U. S., at 299; Robertson , 560 U. S., at 
278–279 (R
OBERTS, C. J., dissenting).  In most cases, that 
inquiry will just come down to who enforces the law, the
sovereign or the injured private party. 
* * * 
In Collins v. Youngblood, this Court explained that any 
“departure from Calder’s explanation of the original under-
standing of the Ex Post Facto Clause[s] was . . . unjustified.”  
497 U. S., at 49.  The Court understood itself to be bound by 
what Calder meant rather than by its intervening prece -
dents that misunderstood Calder. 497 U. S., at 49–50. To-
day, this Court’s precedents concerning the scope of laws 
imposing criminal punishment have departed from Calder’s 
understanding of that category.  In a future case, the Court 
should consider returning to Calder’s understanding.

Retrieval chunks

• #1

  1 (Slip Opinion) OCTOBER TERM, 2025 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the…

• #2

  2 ELLINGBURG v. UNITED STATES Syllabus procedures applicable to other criminal penalties. The Court’s preceden ts have understood restitution under the MVRA to be criminal punishment. See Manrique v. United States, 581 U. S. 116, 118. And the Court’s precedents on related issues further buttress the conclusion…

• #3

  113 F. 4th 839, 841–842 (2024). We now reverse. In this Court, Ellingburg and the United States agree that the Eighth Circuit erred and that MVRA restitution is criminal punishment. The Court therefore appointed John F. Bash as amicus curiae to defend the judgment of the 2 ELLINGBURG v. UNITED STATES Opinion of…

• #4

  3 Cite as: 607 U. S. ____ (2026) Opinion of the Court punishment for a federal offens e in certain circumstances. Ibid. In addition, when a defendant does not make the required restitution payments, the court may modify the terms of his supervised release or probation and impose imprisonment if the court determ…

• #5

  §982(a)(1)—like restitution under the MVRA—occurs at the culmination of a criminal proceeding and requires conviction of an underlying crime. That forfeiture, the Court concluded, is criminal punishment. See United States v. Bajakajian, 524 U. S. 321, 328 (1998). By contrast, the Court determined that the forfe…

• #6

  But outreach to victims and some participation by victims in criminal proceedings are not unusual. See, e.g., §3771(a). With respect to restitution, the key point is that victims do not have the power to initiate or settle the restitution process as they would if it were a civil proceeding. Our ruling today does…

• #7

  As to the States, it provides that “No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.” Art. I, §10, cl. 1. In its general sense, a law is ex post facto —meaning “after the fact”— when it applies retroactively to conduct that occurred be - fore the …

• #8

  essary because an ex post facto law would be invalid as con- trary to natural law. At the Constitutional Convention, Ol- iver Ellsworth argued that “[i]t cannot . . . be necessary to prohibit” ex post facto laws because “no lawyer, no civilian . . . would not say that ex post facto laws were void of them- selves…

• #9

  probate proceedings for the estate of a Connecticut man named Normand Morison. In 1779, Morison wrote a will leaving his property to his wife Abigail and her heirs. See 8 The Documentary History of the Supreme Court of the United States, 1789–1800, p. 89 (M. Marcus ed. 2007). Soon after Morison wrote his will, h…

• #10

  judicate the will’s validity. Id., at 91, 107. The probate court held a new hearing pursuant to the decree and con- cluded that Morison’s original will was valid after all. Id., at 91. Having now lost in probate court, the Calders ap- pealed this new decision and challenged the legislature’s decree that had grant…

• #11

  other kinds of retroactive laws. Justice Chase, in what has proved to be the most influential opinion, gave a compre- hensive account of the scope of the Ex Post Facto Clauses. He understood the Clauses to be limited to retroactive laws imposing criminal punishment. He explained that the Ex Post Facto Clauses co…

• #12

  O. Field, Ex Post Facto in the Constitution, 20 Mich. L. Rev. 315, 331 (1922) (“[T]here have been reputable authorities, both past and present, who incline to the view that the ex post facto provisions of the Constitution prohibited civil as well as criminal legislation”); Eastern Enterprises v. Apfel, 524 U. S.…

• #13

  semantics. Those five factors are whether the legislature 9 Cite as: 607 U. S. ____ (2026) THOMAS, J., concurring had a “ ‘preference’” for “ ‘one label or the other,’ ” id., at 93 (quoting Hudson v. United States, 522 U. S. 93, 99 (1997)); whether the “codification” was in the criminal or civil code, Smith, 5…

• #14

  placed it in the civil code, expressed a nonpunitive purpose, omitted protections for the accused, and let non-traditional prosecutors (such as a health agency) enforce it. See supra, at 2–3. Under the second test, the legislature might be able to prevail by aggravating the fair-notice problems that mo- tivate t…

• #15

  Blackstone titled the third and fourth volumes of his Com- mentaries, respectively, “Of Private Wrongs” and “Of Public Wrongs.” This dichotomy was fundamental to English and American law. Public wrongs were injuries to the sovereign. A public wrong was “a breach and violation of public rights and du - ties, whi…

• #16

  wrong. Id., at 5–6. “The same acts will generally constitute a private injury, as well as a public crime. A public punish- ment is inflicted on the part of the state, to restrain such conduct, and the party injured is entitled to a compensation for the injury he has sustained.” 2 Z. Swift, System of the Laws of…

• #17

  Facto Clauses could be limited to crimes because “there . . . is little reason to apprehend a legislative interference for the sake of unjustly transferring property from one man to another.” Minge v. Gilmour, 17 F. Cas. 440, 443, No. 9,631 (CC NC 1798). And, of course, the occasion for Calder’s dis- tinction wa…

• #18

  “the penalties that they prescribed could be collected through civil suits.” C. Nels on, Originalism and Interpre- tive Conventions, 70 U. Chi. L. Rev. 519, 582, n. 255 (2003). 15 Cite as: 607 U. S. ____ (2026) THOMAS, J., concurring Clauses. If it changes merely private relations, such as the rules of contrac…

• #19

  fense was to be punished by a $25 fine, and the government were to then amend the statute and impose a fine of $1,000,000 dollars, it would be nonsensical to treat that fine as non-punitive simply because the offense was processed civilly.” Brief for Professor Beth Colgan as Amicus Curiae 8, n. 3. Because all of…

• #20

  punishment for the offence.” Ibid. Other decisions followed the same reasoning. For exam- ple, when the United States brought a nominally civil ac - tion for damages based on a public offense, the defendants were entitled to other crimi nal-procedure protections be- cause the action “was in its nature and essenc…

• #21

  Pelican Ins. Co., 127 U. S., at 299; Robertson , 560 U. S., at 278–279 (R OBERTS, C. J., dissenting). In most cases, that inquiry will just come down to who enforces the law, the sovereign or the injured private party. * * * In Collins v. Youngblood, this Court explained that any “departure from Calder’s expla…