Opinion analysis: States can’t keep money they collect pursuant to subsequently overturned convictions
Sometimes, it’s hard to tell what a Supreme Court decision is about, or what the court has held, until well into the majority opinion. And then there are examples like Justice Ruth Bader Ginsburg’s opinion for the Court in Nelson v. Colorado, which opened with the following concise paragraph:
When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction? Our answer is yes. Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process.
Given that Colorado’s scheme appears to be unique, and that the Colorado legislature has already passed legislation that goes into effect in September and provides for automatic reimbursement of “amounts paid following a vacated conviction,” the actual impact of the court’s decision in Nelson will surely be modest. Instead, its more interesting implications may stem from the debate between the majority and Justice Clarence Thomas, who, alone in dissent, did not think it nearly as obvious that “defendants whose convictions have been reversed have a substantive right to any money exacted on the basis of those convictions.”
As we noted in our argument preview, Nelson arose from the Colorado Supreme Court’s interpretation of the state’s Exoneration Act — a statute passed to provide monetary compensation to individuals who had been wrongly convicted — as also encompassing situations such as those presented in Nelson, when a defendant pays money to the states in conjunction with a conviction, only to have that conviction vitiated on direct appeal or through a collateral post-conviction proceeding. Although Colorado’s practice before the Exoneration Act had been, like every other jurisdiction, to automatically return that money once it becomes clear that the prior conviction will not be restored, the Colorado Supreme Court held that the Exoneration Act displaced that rule — even though it requires defendants to initiate a separate civil proceeding, in which they have to prove their innocence by clear and convincing evidence, before thay can collect the deposited funds.
Writing for a 6-1 majority (Justice Samuel Alito concurred in the judgment, but would have reached the same result by applying the more restrictive approach to due process in criminal cases articulated in Medina v. California.), Ginsburg opened by explaining why the traditional Mathews v. Eldridge due process balancing test, rather than Medina, applies. Because “[t]hese cases … concern the continuing deprivation of property after a conviction has been reversed or vacated, with no prospect of reprosecution, … [and] no further criminal process is implicated, Mathews ‘provides the relevant inquiry.’”
Turning to Mathews’ familiar factors, the court made quick work of explaining how “[a]ll three considerations weigh decisively against Colorado’s scheme.” First, the petitioners clearly have a significant interest “in regaining the money they paid to Colorado,” because “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”
Second, the court held, there is a clear risk of erroneous deprivation of the petitioners’ money, because the Exoneration Act puts the burden on them to prove their innocence by clear and convincing evidence, even though their convictions have been wiped off the books. If that weren’t problematic enough, Ginsburg continued, the Exoneration Act “provides no remedy at all for any assessments tied to invalid misdemeanor convictions,” and “when amounts a defendant seeks to recoup are not large [as in the petitioners’ cases], the cost of mounting a claim under the Exoneration Act and retaining a lawyer to pursue it would be prohibitive.”
Indeed, the court explained, the fundamental error in Colorado’s position was in conflating compensation with reimbursement: “Just as the restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the conviction.” Thus, the third Mathews factor also militates in favor of the petitioners, for “Colorado has no interest in withholding from [them] money to which the State currently has zero claim of right.” Ultimately, “[t]o comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.”
In a provocative (and solo) dissent, Thomas suggested that the fundamental flaw in both the majority and concurring opinions was the assumption that defendants in cases like Nelson have a vested property interest in money they pay pursuant to criminal convictions that are vacated or reversed on appeal or through collateral post-conviction proceedings — an assumption Thomas rather vigorously disputed. Instead, Thomas argued, if such an interest comes from state law, then it must come from the Exoneration Act — which, on its terms, imposes conditions on the return of that money.
The more likely source of a substantive right to return of the funds, Thomas continued, was the due process clause of the Fourteenth Amendment — which, in Thomas’ long-held view, “confers no substantive rights.” Hence, Thomas’ perhaps surprising bottom line —“Colorado is therefore not required to provide any process at all for the return of that money.”
Fortunately for the petitioners, all of the other participating justices disagreed, even if they only assumed that criminal defendants do indeed have a right to the return of funds they pay pursuant to subsequently invalidated convictions, without explicitly identifying the source of such a right.