Victims of crime, especially violent crime, are not mere witnesses. They have a special status under state and federal law and are entitled to certain rights, including the right to be heard, to be treated fairly, and in some cases, to get restitution. Until Tuesday, it was an open question of whether the restitution owed to them by the convicted defendant was part of the criminal punishment.

Whether the Mandatory Victims Restitution Act is considered legal punishment under the Constitution’s ex post facto clauses has been the subject of some debate in the lower courts. On Jan. 20, the U.S. Supreme Court issued a unanimous ruling answering that question in the affirmative under the unique facts of this case.

But what is the MVRA, how did it come to be, and why is this case a textbook example of the ex post facto clause in action? 

Enacted by Congress in 1996, the MVRA was designed to ensure restitution for victims of certain federal crimes.

The statute made restitution mandatory for specified offenses, including violent crimes, property crimes, and fraud. It also adopted a broad definition of “victim,” extending beyond those directly harmed to also include family members and others who suffered direct and proximate harm as a result of the offense.

Finally, restitution under the MVRA is imposed at sentencing and enforced as part of the defendant’s criminal punishment.

The ex post facto clauses, located in Article I, Sections 9 and 10 of the Constitution, forbid Congress and the states from enacting ex post facto—literally, “from a thing done afterward”—laws. To understand why, it is necessary to delve into the historical and legal context, and there........

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