For much of modern constitutional law, courts have treated monetary sanctions as a lesser form of state power: important, perhaps, but fundamentally different from incarceration. Loss of liberty was punishment. Money was accounting.

In Ellingburg v. United States, decided on January 20, 2026, the Supreme Court quietly but decisively rejected that distinction. Writing for a unanimous Court, Justice Kavanaugh held that restitution imposed under the Mandatory Victims Restitution Act is “plainly criminal punishment” for purposes of the Ex Post Facto Clause. The conclusion was doctrinally straightforward: restitution is labeled a penalty, imposed at sentencing, predicated on conviction, enforced by the government, and backed by the threat of imprisonment for noncompliance.

What makes Ellingburg notable is not the result but the premise it restores: that punishment turns on function, not form.

American constitutional law has long struggled with the boundaries of punishment, particularly when punishment takes the form of money rather than imprisonment. The Founding generation understood punishment capaciously, as any coercive deprivation of life, liberty, or property imposed by the sovereign to redress a public wrong. But over time, courts oscillated, at times treating financial sanctions as constitutionally significant, at other times relegating them to a lesser, quasi-civil category.

That ambivalence is visible in the Supreme Court’s own forfeiture jurisprudence. In Austin v. United States (1993), the Court held that civil forfeiture could constitute punishment and therefore trigger the Eighth Amendment’s Excessive Fines Clause, rejecting the notion that the civil or in rem label was dispositive. Five years later, in United States v. Bajakajian, the Court made the point unmistakable in the criminal context, holding that forfeiture imposed at sentencing is punitive and subject to constitutional proportionality review. Yet in United States v. Ursery (1996), addressing the Double Jeopardy Clause, the Court reached a different conclusion, holding that in rem civil forfeiture, even when pursued alongside or after criminal prosecution, does not constitute “punishment” for double jeopardy purposes. The result is a jurisprudence that turns less on the lived reality of deprivation than on constitutional category: the same forfeiture may be punitive for purposes of excessiveness, yet nonpunitive for purposes of multiple punishment, depending on the doctrinal frame applied.

Ellingburg returns the analysis to first principles.

The Court’s reasoning is rooted in statutory structure rather than abstract theory, but its implications are broader. If restitution, often described as compensatory and victim-focused, is criminal punishment, then the modern enforcement ecosystem must be re-examined. Criminal forfeiture, joint-and-several financial liability, mandatory assessments, and other monetary sanctions increasingly dominate the resolution of criminal cases. They are imposed not at the margins of sentencing, but at its center.

In modern practice, property is often restrained or seized at the outset of an investigation, long before guilt is adjudicated. Bank accounts are frozen. Businesses lose operating capital. Homes, vehicles, and digital assets are taken out of circulation for years. Even when property is eventually returned, or partially returned, the deprivation itself often functions as a sanction, shaping outcomes and forcing resolutions independent of adjudicated guilt.

The practical consequences are not hypothetical. In white-collar cases, defendants frequently face years-long asset restraints that make it impossible to fund a defense or continue operating a business. In lower-level cases, forfeiture of modest sums (such as cash seized during traffic stops or searches) may never be contested at all, because the cost of litigation exceeds the value of the property. In both settings, punishment operates through leverage rather than judgment.

This shift reflects a deeper transformation in how the state exercises coercive power. Financial penalties are efficient. They avoid jury trials, reduce incarceration costs, and allow cases to be resolved quickly. But efficiency does not negate punishment. For those subjected to it, the consequences are often immediate and severe: frozen accounts, lost livelihoods, prolonged supervision, and years of financial obligation enforced by the threat of imprisonment.

Justice Thomas’s concurrence in Ellingburg makes the point more explicit, situating the decision within an older constitutional tradition. At the Founding, the relevant question was not whether a sanction was labeled civil or criminal, but whether it was imposed by the sovereign to punish a public offense. If so, constitutional constraints applied, regardless of procedural packaging.

That insight has contemporary resonance. Modern law increasingly relies on financial sanctions that look civil in form but punitive in effect. When courts accept those labels uncritically, constitutional protections thin out. Excessiveness becomes harder to challenge, proportionality recedes, and ability to pay becomes an implicit determinant of punishment severity.

Ellingburg does not resolve those tensions, but it clarifies the stakes. Once money is recognized as punishment, courts cannot avoid the constitutional questions that follow. The Eighth Amendment is implicated. Due process is implicated. So too is the basic legitimacy of a system in which punishment may vary dramatically based on economic position.

The decision is narrow, but its logic is not. It invites a reassessment of how modern enforcement uses money as a substitute for incarceration and whether constitutional doctrine has kept pace with that substitution.

In that sense, Ellingburg is less about restitution than about first principles. It reminds us that the Constitution regulates power, not labels, and that property, no less than liberty, sits within its protective scope.

That reminder is overdue.

Duncan Levin is a Lecturer on Law at Harvard Law School, where he teaches Cash, Crime, and the Constitution: The Legal Frontiers of Asset Forfeiture and Money Laundering. He is a criminal defense attorney and former federal prosecutor focusing on financial crime and asset forfeiture.