Ellingburg v. United States and Why So Many People Hate Lawyers

The U.S. Supreme Court's October 2025 Term begins today. This is the third in a series of essays about sentencing and corrections law cases on the Court's docket for the term.

Thirty years ago, on December 4, 1995, Holsey Ellingburg, Jr. robbed a Savannah branch of the First Union Bank of Georgia with a sawed-off shotgun. He was soon arrested and charged in federal court for the crime. He exercised his constitutional right to a jury trial, and in August 1996, he was convicted by a unanimous jury of bank robbery and using a firearm during a crime of violence.

A district court judge in the Southern District of Georgia sentenced Ellingburg to 322 months in prison. Yes, that’s right; almost 27 years in prison for the bank robbery. By way of comparison, last month, Multnomah County, Oregon Circuit Court Judge Cheryl Albrecht sentenced Joseph Emerson to 50 days in jail on 83 counts of reckless endangerment. Emerson was an off-duty pilot sitting in a cockpit jump seat when he tried to activate a system in the plane that would have prevented fuel from flowing to the engines and would have brought the plane down. Emerson had taken psychedelic mushrooms two days before the flight and had not slept for 40 hours. The two operating pilots wrestled Emerson away from the cockpit, reset the system, and made an emergency landing.

In addition to the prison sentence, the sentencing judge in Georgia ordered Ellingburg to pay $7,567 in restitution for the money he stole from the bank. While he was incarcerated in the Federal Bureau of Prisons (BOP) from 1997 until 2022 — 25 years — Ellingburg managed to pay back $2,154 toward the restitution total. That may not seem like much of an accomplishment, but it actually may be rather heroic. According to the BOP, inmates earn between 12 cents and 40 cents an hour for jobs they do in BOP facilities. At the midway point of 26 cents an hour, it would take Ellingburg about 8,300 hours to earn the $2,154. Let’s say to keep his sanity while in prison he earned and spent just $10 each week on supporting his family on the outside, a call home, and a pack of gum. To do that, he would have to work almost 40 hours. If he worked an additional 10 hours a week to put towards restitution, it would have taken him 16 years to earn the $2,154 (assuming he worked a total of 50 hours a week, 52 weeks a year, for 16 straight years).

So now, thirty years on from the crime, and with Ellingburg seemingly still owing a restitution debt of $5,413 — or is it $13,915.84, including interest, as calculated by the Probation Office (accruing at 5% interest per year, the debt in prison would grow faster than it could be paid back) — the case is before the Supreme Court, set for oral argument next Tuesday, October 14^th. As I read the briefs, it all struck me as a bit odd. Why is our government still pursuing this money after 30 years? Is it just the principle? Is the victim insisting on it? While Ellingburg was in prison, in 2001, First Union Bank of Georgia — the identified victim in the case — merged with Wachovia Bank in a deal valued at about $14 billion. Then a few years later, Wachovia was acquired by Wells Fargo, which has had a few of its own problems in the meantime. Wells Fargo operates in 35 countries, serves over 70 million customers worldwide, and has roughly $2 trillion in assets. I suppose somewhere on its books is an accounts receivable of $5,413 under the name Holsey Ellingburg, Jr. And while our government can’t find a way to hold the perpetrators of the 9/11 terrorist attacks accountable, 24 years after that crime, it continues to chase Ellingburg for the $5,413 he owes Wells Fargo for his. Of course, the chase takes resources. More on that in a moment.

Maybe the case is at the Supreme Court because there are thousands of similarly situated victims and defendants awaiting clarity from the Court on the legal question presented in order to resolve their cases. I suspect not. The legal question at issue in the Court is whether the Ex Post Facto Clause of Article I, Section 9 of the Constitution applies to restitution orders. You see, when Ellingburg committed the bank robbery in 1995, restitution was governed by the Victim and Witness Protection Act of 1982 (VWPA). That law authorized enforcement of any restitution order only for a period of 20 years from the entry of judgment. The judge in the case ordered restitution at the sentencing pursuant to this law. So, it would seem that Ellingburg is free and clear. It’s been 29 years since the entry of judgment against him. He has satisfied his obligation under the VWPA.

Well, not exactly. You see in 1996, while Ellingburg was in custody awaiting trial, Congress passed and President Clinton signed into law the Mandatory Victims Restitution Act (MVRA). The MVRA extended an offender’s obligation to pay restitution to “the later of 20 years from entry of judgment or 20 years after release from imprisonment.” In the Act, Congress also made clear that the MVRA would only apply to “sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of the Act” “to the extent constitutionally permissible.” The question the Supreme Court is grappling with is whether the Ex Post Facto Clause prohibits the application of the MVRA to Ellingburg. The Court’s ruling on that question will only apply to those who committed their federal crime before April 1996, were sentenced after that date, were ordered to pay restitution under the MVRA, and still owe money on the order 30 years on. The number of such defendants is almost certainly vanishingly small. And the number who have any ability to pay the restitution is even smaller.

There is more than a faint echo of Charles Dickens’ Bleak House in all of this. How much can we spend on a not-very-important constitutional question involving a debt of $5,413? I wonder if anyone in government ever considered a different approach to the case to just repay Wells Fargo the $5,413? Of course, writing an essay about the Supreme Court for a Substack is a little like litigating a case before the Court. It’s a vanity project, at least in part. It’s also what Robert Bork called “an intellectual feast,” when in his confirmation hearing he responded to a question from Senator Alan Simpson of Wyoming about why he wanted to be an Associate Justice of the Supreme Court. Bork’s egghead response doomed his nomination, for most Americans who are not lawyers are not so interested in indulging intellectual appetites at taxpayers’ expense.

So, what is our feast costing? Here’s my back-of-the-envelope accounting of the resources being expended just at the Supreme Court level for this case —

The nine justices: they had to read the certiorari memo prepared by the Court’s cert. pool and later the briefs filed in the case. They probably discussed the case with their clerks at the cert. stage, discussed the case with their colleagues in conference at the cert. stage, will participate in an hour of oral argument the week of October 13^th, discuss the case again with their colleagues in conference, draft and review opinion(s), and announce the result.

The justices law clerks: they had to read the initial cert. petition and the government’s brief in opposition, then draft a cert. memo. Then, clerks in all nine chambers will work with the justices to draft and review opinion(s).

The lawyers: Here are some of the law firms who have spent collectively hundreds, if not thousands of hours on this case, writing, reviewing, and editing briefs, participating in moots, meeting with clients, strategizing, etc. Lisa Blatt and five other lawyers at Williams & Connolly, who represent Ellingburg. Andrew Tutt and two other lawyers at Arnold & Porter, Kaye Scholer, Lauren Willard Zemmer and four other lawyers at Covington & Burling, Nichols Silverman and two other lawyers at Steptoe, and Krystal Swendsboe and two other lawyers at Wiley Rein, who all filed amicus briefs supporting Ellingburg. Then there is John Bash and six other lawyers at Quinn Emanuel Urquhart & Sullivan, who acted as an amicus in support of the judgment from the court of appeals; you see the Justice Department conceded error part way through the case. That’s right, they participated with the courts in chasing Ellingburg for the money for 30 years before dropping the pursuit when the case was granted review by the Supreme Court some months ago.

Then there are other amici: Professor Beth Colgan at the UCLA School of Law, four lawyers from the Constitutional Accountability Center, Matthew Cavedon of the Cato Institute and the Fines and Fees Justice Center, Jeffrey Green of the National Association of Criminal Defense Lawyers, Shaana Rifkin of FAMM, all who filed amicus briefs supporting Ellingburg.

And finally, there are the government lawyers: a line attorney in the Appellate Section of the Criminal Division, supervising attorneys in the Appellate Section, supervising attorneys in the Criminal Division Front Office, an Assistant to the Solicitor General, a Deputy Solicitor General, and the Solicitor General himself.

All the support personnel at the Court, at the firms, and in the government: Well, you get the idea.

I count at least 61 lawyers working on the case (18 at the Supreme Court, 27 at the white shoe firms, 8 other amici supporting Ellinburg, and 8 at the Justice Department). If they each spent three days on the case — some will certainly work less and some certainly much more — that’s about 1,500 hours of lawyer time. The opportunity costs of these lawyers vary dramatically. But no matter how you calculate it, this case is costing hundreds of thousands of dollars, if not millions, at the Court. Is there any way that common sense might have prevailed, and we could have found a way to settle the whole thing for a $5,413 cash transfer to Wells Fargo. Maybe we still should?

But while I suspect very few cases will be affected by the outcome of this case, that’s not to say no one at all besides Ellingburg and Wells Fargo will be impacted. Allyson Ho, five other lawyers from Gibson, Dunn & Crutcher, and Professor Paul Cassell of the S.J. Quinney College of Law at the University of Utah filed the sole amicus brief in support of the judgment below. They filed it on behalf of Debra Ricketts-Holder. Ricketts-Holder’s son, Christopher was senselessly murdered on the evening of June 10, 1993. He was 17 years old. William Neilly, also 17 at the time, was convicted of Chris’ murder. He was sentenced to life imprisonment.

But in an extraordinary twist of fate, Neilly had to be resentenced after the Supreme Court ruled that it is unconstitutional to sentence someone who committed their crime before turning 18 years old to life imprisonment without the possibility of parole. So, a court resentenced Neilly, this time to 35-60 years’ imprisonment for the murder. And that court also ordered Neilly to pay Ricketts-Holder $14,895.78 in restitution — the cost she paid Langeland Funeral Home back in 1993 to bury her son. Neilly challenged the restitution order as a violation of the Ex Post Facto Clause; that was his response to the Supreme Court’s Eighth Amendment mercy and a new chance at a life on the outside — I’m sure egged on by his lawyers. Did he even consider repaying the Supreme Court’s grace with some of his own towards Ms. Ricketts-Holder? Did it even cross the minds of his lawyers? Neilly’s petition for a writ of certiorari is now pending at the Supreme Court and hinges on the outcome of Ellingburg’s case.

If our government was effective and had any decency, it would have found the money to help Ms. Ricketts-Holder pay for Christopher’s funeral and burial 30-some years ago. Apparently, it didn’t. But that observation doesn’t let all of us off the hook. If we have any decency, we’ll find a way to channel this vanity project into something good. Perhaps we can raise the funds for Ms. Ricketts-Holder and in doing so, remind her that her son’s memory is still alive — 32 years after his murder — and that there are lawyers and others who still care and who are not just gorging themselves on an intellectual feast.

Debra Ricketts-Holder and Christopher Ricketts