The Lawletter Vol 42 No 5
Following the exhilaration accompanying a reversal of a criminal conviction, the former defendant must begin efforts to mitigate the damage, not the least of which may be repairing the financial harm of participating in the criminal justice system. In a seven to one decision (Justice Gorsuch did not participate), the U.S. Supreme Court addressed the Colorado statutory scheme for the refund of costs, fees, and restitution paid pursuant to the invalid conviction and concluded that the Compensation for Certain Exonerated Persons Act (Exoneration Act), Colo. Rev. Stat. §§ 13-65-101 to -103 (2016), violated due process by requiring defendants whose convictions have been reversed or vacated to prove their innocence by clear and convincing evidence in order to obtain a refund. Nelson v. Colorado, 137 S. Ct. 1249 (2017).
There were two petitioners in Nelson: (1) Shannon Nelson sought a refund of $702.10 withheld from her inmate account with the Colorado Department of Corrections toward an assessment of $8,192.50 in court costs, fees, and restitution following a reversal of her conviction for sexual and physical abuse of her four children and acquittal after retrial; and (2) Louis Alonzo Madden asked for a refund of $1,977.75 he paid toward assessed court costs, fees, and restitution totaling $4,413 after his conviction for patronizing a prostituted child was reversed on direct appeal, his conviction for attempted third-degree sexual assault by force was vacated on postconviction relief, and the State elected not to appeal or retry the case. Neither petitioner proceeded under the Exoneration Act. The Colorado Supreme Court held that the Exoneration Act was the sole means of seeking a refund, and, thus, the courts were without authority to refund the money paid. Moreover, the Colorado court found no due process problem because the Act provided sufficient process to defendants seeking refunds. Justice Ginsberg, writing for the U.S. Supreme Court, disagreed. The Court evaluated the Colorado scheme under the three-part balancing test established in Mathews v. Eldridge, 424 U.S. 319 (1976), which requires a court to weigh (1) the private interest affected, (2) the risk of erroneous deprivation, and (3) and the governmental interest at stake in determining the process that is due under the Fourteenth Amendment. The U.S. Supreme Court rejected Colorado's argument that the proper analysis was found in Medina v. California, 505 U.S. 437 (1992), which sets forth a basis for assessing the validity of state criminal procedural rules because once the convictions were reversed or vacated, no future criminal process was implicated. Nelson, 137 S. Ct. at 1255. Under the first prong, the Court found that Nelson and Madden had "an obvious interest in regaining the money they paid to Colorado." Id. The Court rejected Colorado's argument that the State had a right to the funds because the convictions were in place when the funds were taken. According to the Court, however, "once those convictions were erased, the presumption of their innocence was restored." Id. "Colorado may not retain funds taken from Nelson and Madden solely because of their now-invalidated convictions, . . . for Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions." Id. at 1256 (internal citations omitted; emphasis in original). Thus, the interest in regaining funds was high. Id. at 1257.
Under the second prong, the Court concluded that the risk of erroneous deprivation was unacceptable. Id. The Exoneration Act conditioned refund of proof of innocence by clear and convincing evidence when defendants should have been presumed innocent. Furthermore, the Act did not provide a remedy for refund of assessments associated with invalid misdemeanor convictions. Finally, when, as in the cases of Nelson and Madden, the amount of a refund sought was not large, seeking recoupment under the Act would be cost-prohibitive. Id. at 1256–57. The Court clarified that contrary to arguments made by the State, the petitioners sought restoration of funds taken pursuant to an unlawful conviction, not compensation for temporary deprivation of those funds. The risk of erroneous deprivation was not the risk of wrongful conviction faced by any defendant; rather it was the greater risk of continued deprivation faced by a defendant whose conviction already had been overturned. Id. at 1257.
On the third prong, the Court stated, "Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right." Id. The Court concluded, "[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." Id. at 1258. What kinds of procedures are acceptable undoubtedly will be the subject of future litigation. However, it is clear that a defendant, once exonerated, cannot be required to prove his or her innocence by clear and convincing evidence to obtain costs, fees, and restitution.
Justice Alito concurred in the judgment, but would have reached the same result by applying the analysis of Medina v. California. Id. at 1258–63. Justice Thomas dissented because he could find no substantive entitlement to return the money paid pursuant to criminal convictions that were subsequently reversed or vacated. Id. at 1263–66.