[This is the case that the Supreme court will hear in the fall term. This friend of the court in favor of the defendant is asking for a wider scope of view that includes revisiting issues like sex-offense registration, monetary penalties, and civil asset forfeiture.]
In 1995, when petitioner Holsey Ellingburg, Jr., robbed a bank, federal criminal restitution was governed by the Victim and Witness Protection Act (VWPA). The VWPA provided that a defendant’s liability to pay restitution ended twenty years after the entry of judgment. Then, in 1996, Congress enacted the Mandatory Victim Restitution Act (MVRA), which extended the liability period to twenty years after a defendant’s release from imprisonment and required that restitution include interest. The MVRA’s drafters apparently anticipated the possibility that its retroactive application might violate the Constitution’s Ex Post Facto Clause: Congress explicitly made the Act retroactive only “to the extent constitutionally permissible.”
The issue in this case is whether that concern was correct.
Read the full article
Read the brief that CATO filed
More briefs Ellingburg v. United States
both sides quote Kansas v. Hendricks as well as Smith v. Doe frequently.
I don’t know if this has been brought up in comments on this site, but just to offer a counter observation: The authorities CLAIM that ICE detention is supposed to be ‘administrative, not a punishment.’
How many times have the courts returned the “It’s not meant to be punitive” false assertion when challenging the registry?
Quote from Google:
“Immigration detention is categorized as a type of civil detention, meaning that individuals in immigration detention facilities should not be placed in conditions meant to punish them. However, ICE’s national standards draw from correctional facility standards.”
They claim capture – or containment – is non-punitive
Are their lives not hijacked and held hostage against their will and made to perform “comply” in a similar fashion to us? Only difference is, they’re being held in a physical gulag while we’re subjected to an electronic gulag.
Sure as heck sounds punitive to me.
This is exactly why the US Government didn’t want to return Kilmar Abrego from CECOT. It’s Abu Ghraib all over again.
Legal word-smithing gets very frustrating. An obligation or restriction imposed as the result of a criminal conviction is punitive, period. An obligation or restriction that is not imposed by criminal conviction is civil. What is so hard to understand about that? How is it that judges, ostensibly the most educated and experienced legal minds around, are so incapable of seeing something so ridiculously simple?
So is registration in fact a form of restitution?
One paragraph stands out to me in the amicus brief in regards to Expo Facto Clause statements from James Iredell, one of the first US Supreme Court Justices.
James Iredell praised the Clause as
“one of the most valuable parts of the new
constitution.” He named ex post facto laws “the
instrument of some of the grossest acts of tyranny that
were ever exercised.” The prohibition on them was
“worth ten thousand declarations of rights”—and the
foundation of every American’s “pride in his security”
that his actions today “cannot be tortured into guilt
and danger tomorrow.”