Ellingburg v. United StatesEllingburg v. United States
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 (1906).
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 restitution 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 Clause. 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 (2003) (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.”
The Court’s precedents have understood restitution under the MVRA to be criminal punishment. See Manrique v. United States, 581 U. S. 116, 118 (2017). 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 (1998); United States v. One Assortment of 89 Firearms, 465 U. S. 354, 363–366 (1984).
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 structure of the Act demonstrate that Congress intended restitution under 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.
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
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.”
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
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,
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
This Court’s precedents on related issues further buttress the conclusion that MVRA restitution is criminal punishment. For example, forfeiture under
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.
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.,
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.
I join the Court’s opinion in full because it correctly applies our precedent. I write separately to clarify the foundation of that precedent. This Court’s 1798 decision in Calder 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 today 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 Attainder or ex post facto Law shall be passed.”
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 thousand declarations of rights” without it. Answers to Mr. Mason’s Objections to the New Constitution, 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 tomorrow.” Ibid. In the Federalist Papers, Alexander Hamilton placed “the prohibition of ex post facto laws” among the greatest “securities to liberty and republicanism.” The Federalist No. 84, p. 571 (P. Ford ed. 1898). James Madison argued that ex post facto laws are “contrary to the first principles of the social compact.” Id., No. 44, at 296.
Ex post facto laws lack legitimacy because laws must precede 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) (THOMAS, J., dissenting) (quoting 1 W. Blackstone, Commentaries 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 punishment for not abstaining must of consequence be cruel and unjust.” Ibid. An ex post facto law is even “more
Many believed that no constitutional prohibition was necessary because an ex post facto law would be invalid as contrary to natural law. At the Constitutional Convention, Oliver 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 themselves.” 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 already 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 implicitly regarded an ex post facto law as a violation of natural 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 Constitution, 54 U. Chi. L. Rev. 1127, 1157 (1987). The Convention nonetheless adopted the Ex Post Facto Clauses after it was urged that “the Judges can take hold of ” them if a legislature ever enacts such a law. 2 Farrand 376 (Williamson).
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 Justice 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
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 Morison’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 Morison’s property. First, Connecticut changed the default intestacy rules so that, absent a valid will, property like Morison’s would pass to his nearest blood relative, not to a surviving spouse like Abigail. Id., at 90, and n. 9. Second, the probate court, without telling Abigail, disapproved Morison’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 probate court. Ibid. The Bulls were surprised to learn that the
Abigail and Caleb Bull petitioned the Connecticut Legislature for relief. They convinced the legislature that Morison did not intend to revoke his will after his son died, so the legislature issued a decree in 1795 granting them a rehearing on the validity of Morison’s original will. Id., at 91. The legislature’s 1795 decree effectively vacated the original probate-court decision deeming the will void and granted a new hearing at which the probate court could adjudicate the will’s validity. Id., at 91, 107. The probate court held a new hearing pursuant to the decree and concluded that Morison’s original will was valid after all. Id., at 91. Having now lost in probate court, the Calders appealed 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
The more lasting legacy of Calder, however, was its second 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 comprehensive 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 private 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
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, unquestionably 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 imposing criminal punishment. See, e.g., Satterlee v. Matthewson, 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) (THOMAS, 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–
III
This Court’s recent precedents have attempted to implement Calder’s limitation of the Clauses to criminal punishment. But, in doing so, they have adopted a framework that turns largely on legislative labeling, has little basis in history, and is unnecessarily convoluted.
A
The modern precedents follow Calder’s limitation of the Ex Post Facto Clauses to laws that impose criminal punishment. 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 definition 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., Kansas 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 applies two multifactor tests developed in the 20th century. The first multifactor test asks whether the legislature “intended” 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 intention of the legislature was to impose punishment.” Smith, 538 U. S., at 92. But if “the intention was to enact a regulatory 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
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 second 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 quotation 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, imposes 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 relation to that purpose. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168–169 (1963); see Smith, 538 U. S., at 97 (explaining 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 historical purpose of Ex Post Facto Clauses. The modern framework, because of how much it turns on legislative labeling and semantics, allows a legislature to manipulate when the
The modern framework is also convoluted. It is difficult for courts, let alone ordinary citizens, 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) (THOMAS, 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
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 Commentaries, 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 duties, which affect the whole community, considered as a community.” Ibid. Because a public wrong injured the community, it was deemed an injury to the sovereign in his sovereign capacity. 4 Blackstone 2–7. It followed that an action 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) (ROBERTS, C. J.,
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 belonging to individuals, considered as individuals.” 3 Blackstone 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 punishment 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 compensate 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: Theft 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”
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 “offence.” 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 William 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 explained 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 distinction was a probate dispute, where only private rights are implicated.2
The Ex Post Facto Clauses therefore prohibit retroactive laws that impose coercive penalties for public wrongs. Contrary 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 sovereign capacity—then it is subject to the Ex Post Facto
Whether a law is subject to the Ex Post Facto Clauses will therefore typically depend on how it is enforced. If it is enforced on behalf of the sovereign to redress a sovereign injury, 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 Ellingburg 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 Blackstone 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 protection 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 penalties 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) (THOMAS, J., concurring) (describing the 20th-century rise of such proceedings). And they include municipal sanctions like speeding tickets. “If
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 offenses whether prosecuted criminally or civilly on the one hand, and purely private disputes on the other.” Brief for Professor Beth Colgan as Amicus Curiae 5. This Court confirmed, 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 explained that a “law will be ex post facto in the constitutional sense” if it “subject[s] an individual 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 action was not any private injury, but solely the offence committed against the State by violating her law.” Ibid. Likewise, “[t]he prosecution was in the name of the State.” Ibid.
Other decisions followed the same reasoning. For example, when the United States brought a nominally civil action for damages based on a public offense, the defendants were entitled to other criminal-procedure protections because 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 penal 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.” Id., at 341.
This understanding of Calder harmonizes the Ex Post Facto Clauses with their historical purpose. It means that the Clauses ensure fair notice against government enforcement actions, regardless of whether the legislature labels them civil. As JUSTICE 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’ penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and
This understanding of Calder also simplifies the law. Rather than making the Ex Post Facto Clauses’ application depend on twelve factors with indeterminate weights, this understanding makes it depend on a simple legal inquiry with a long pedigree in our legal tradition—whether the law imposes 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 (ROBERTS, 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 understanding 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 precedents that misunderstood Calder. Id., at 49–50. Today, 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.