On July 8, 2024, the Supreme Court of Michigan held that imposing a new restitution obligation—by retroactive application of restitution statutes enacted after a criminal defendant committed his underlying offense—could nevertheless happen during a resentencing hearing, without violating the ex post facto clauses of either the state or federal constitutions.

In 1993, when he was 17, William E. Neilly was convicted of felony-murder and related offenses for a killing committed during a theft with multiple co-defendants. Neilly was originally sentenced to life without parole (LWOP), but that sentence was vacated pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016)—decisions in which the Supreme Court of the U.S. (SCOTUS) held that (1) mandatory LWOP sentences for juvenile defendants were barred by the Eighth Amendment prohibition on cruel and unusual punishment and (2) that the decision applied retroactively.

Under Mich. Compiled Laws (MCL) § 769.25a—a statutory procedure for resentencing defendants, such as Neilly, who had received LWOP sentences as juveniles, which was created in response to those SCOTUS decisions—Neilly was resentenced to 35 to 60 years in prison. At resentencing, the murder victim’s mother also requested $14,895.78 in restitution for funeral expenses. The court imposed the requested restitution “joint and several with co-defendants, citing as legal authority those restitution statutes enacted long after Neilly’s criminal offense.

Neilly appealed, arguing that retroactive application of these amended restitution statutes violated the ex post facto clauses of the federal and state constitutions. Both U.S. Const., art. I, § 10, and Mich. Const., art. 1, § 10 (1963), forbid retroactive application of a law if it: “(1) punishes an act that was innocent when the act was committed; (2) makes an act a more serious criminal offense; (3) increases the punishment for a crime; or (4) allows the prosecution to convict on less evidence,” as laid out in People v. Earl, 845 N.W.2d 721 (Mich. 2014).

The Court recognized that the amended statutes “are less favorable” to Neilly than those in effect in 1993 because “the former restitution statutes provided that the imposition of restitution was discretionary, rather than mandatory.” The prior statute also required the trial court to consider a defendant’s “financial resources and earning ability” before imposing restitution, whereas the amended statutes did not. The question presented in Neilly’s case was whether the retroactive application of the amended restitution statutes constituted increased punishment in violation of the ex post facto clauses.

A law is ex post facto only if it imposes a criminal punishment rather than a civil remedy, the Court began, pointing to People v. Betts, 968 N.W.2d 497 (Mich. 2021). In turn, determining whether a law is criminal versus civil depends on what the legislature intended; if it intended the law as punishment, the inquiry ends and it cannot be applied retroactively. However, if the legislature created a civil remedy, then the reviewing court must decide, in the words of Earl, “whether the statutory scheme is so punitive either in purpose or effect so as to negate the State’s intention to deem it civil.”

Neither of the restitution statutes, MCL 769.1a nor MCL 780.766, expressly stated whether it provided a punishment or a civil remedy. But the Court said it had long been recognized that their purpose was to “enable victims to be compensated fairly for their suffering at the hands of convicted offenders,” per People v. Peters, 537 N.W.2d 160 (Mich. 1995), rather than “to impose additional punishment on offenders,” in which United States v. Arutunoff, 1 F.3d 1112 (10th Cir. 1993) and United States v. Newman, 144 F.3d 531 (7th Cir. 1998) were in accord. The fact that restitution “imposes some financial pain” on defendants does not make it punishment, the Court continued, because the restitution statutes are “tailored to the harm suffered by the victim rather than the defendant’s conviction or judgment of sentence.”

Moreover, the Court continued, the history of restitution orders in American jurisprudence indicates that they have always been “considered an equitable, remedial measure designed to prevent the unjust enrichment of wrongdoers,” again citing Newman. Criminal fines, on the other hand, are historically punitive because they are based on the defendant’s conduct and are paid to the State, not crime victims.

Finally, the fact that a defendant may be incarcerated for failing to pay restitution does not convert an otherwise civil remedy into punishment, the Court said. While the potential for imprisonment is certainly a strong indicator that a law is punitive, as held in Betts, “this punitive effect is somewhat lessened” by the fact that a defendant may be confined only if he or she has failed to make a “good faith effort” to pay the restitution order, a determination that turns on the defendant’s earning capacity, employment status and the willfulness of any failure to pay. See: MCL 780.766(11); MCL 769.1a(11).

Therefore, the Court held that retroactive application of the restitution statutes to Neilly did not violate any constitutional ex post facto clauses. The trial court’s restitution order was thus affirmed. See: People v. Neilly, 2024 Mich. LEXIS 1270 (Mich. 2024).  

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