Whether the retroactive enlargement of a restitution liability period violates the Ex Post Facto Clause

QUESTION PRESENTED Criminal restitution is a court-ordered financial liability imposed upon a convicted offender to compensate victims of a crime for financial losses caused. Restitution is typically ordered as part of a criminal sentence, as it was in this case. It thus “implicates the prosecutorial powers of government” and “serves punitive purposes,” in addition to remedial ones. Paroline v. United States, 572 U.S. 434, 456 (2014). Restitution comprises two substantive elements: (1) the amount owed and (2) the period of time before which the liability expires. In this case, defendant Laurie Weinlein was ordered to pay around $2.185 million in restitution. Pursuant to the Victim and Witness Protection Act of 1982, which was in effect at the time of her offense conduct, Weinlein was liable to pay that sum during a period of 20 years from the date of final judgment in her criminal case. Congress later enacted the Mandatory Victims Restitution Act, which now provides that “[t]he liability to pay a [sum of restitution] shall terminate the later of 20 years from the entry of judgment or 20 years after the release from imprisonment.” 18 U.S.C. § 3613(b). The government seeks to collect restitution from Weinlein under the MVRA’s longer liability period. The lower courts are intractably divided on whether a legislative extension of the expiration date for restitution liability may be applied retroactively, consistent with the Ex Post Facto Clause. The Second, Eighth, and Ninth Circuits and the highest courts of Washington, Kansas, and Michigan have held that it may be, although for differing reasons; the Third and Sixth Circuits and the West Virginia Supreme Court have disagreed. The question presented is whether the retroactive enlargement of a restitution liability period violates the Ex Post Facto Clause.