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April 19, 2017

SCOTUS rules 7-1 that due process precludes requiring defendant to prove innocence by clear and convincing evidence to recover assessments after invalidated conviction

The Supreme Court this morning handed down a notable due process decision in Nelson v. Colorado, No. 15–1256 (S. Ct. April 19, 2017) (available here). Here is how Justice Ginsburg's opinion for the Court gets started and concludes:

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....

Colorado’s scheme fails due process measurement because defendants’ interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To 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.

Justice Alito concurs separately, because in his view "Medina’s historical inquiry, not Mathews [the modern due process balancing test applied by the majority], provides the proper framework for use in these cases." Justice Alito's extended opinion provides a distinct account of the problem with Colorado's procedures.

Justice Thomas dissents in an opinion that is founded on the view that "petitioners have not demonstrated that defendants whose convictions have been reversed possess a substantive entitlement, under either state law or the Constitution, to recover money they paid to the State pursuant to their convictions. "

April 19, 2017 at 10:19 AM | Permalink


Interesting. Thomas' dissent is right in a formulaic sense--but I think the "prolixity of a legal code" admonition shows that he is incorrect.

Posted by: federalist | Apr 19, 2017 10:21:24 AM

How does Alito's concurrence fit in?

Anyway, Thomas wrote the opinion in the other criminal case, which went 6-2.


It involves child pornography, a noticeably repeat player on this blog, so might be of some interest to some.

Posted by: Joe | Apr 19, 2017 10:30:15 AM

[My comment came before the original post was edited to include the Alito material.]

Posted by: Joe | Apr 19, 2017 10:32:47 AM

1) Goes against the American Rule;

2) prosecution now liable for cost damages if appellate court rules against it;

3) will deter wrongful prosecution and appellate reversals since these now cost their employers money.

Posted by: David Behar | Apr 19, 2017 6:00:29 PM

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