A few weeks ago, the U.S. Supreme Court heard argument in Nelson v. Colorado. This case raises the question whether it violates the due process rights of a defendant whose conviction has been reversed to require her to bring a separate action to prove her innocence by clear and convincing evidence in order to get a refund of the costs and fees imposed upon her pursuant to her original conviction. In this column, I will explore one way of thinking about this question.
Conviction and Appeal
In 2006, Shannon Nelson was convicted of charges relating to sexual assaults that she was alleged to have committed against her children. After the guilty verdict came in, Nelson was sentenced to a prison term of twenty years to life and ordered to pay various costs and fees, the latter of which are imposed only upon people convicted of crimes. A portion of these costs and fees were taken from the defendant’s inmate account by the Department of Corrections.
Nelson appealed her conviction, and the court of appeals reversed the judgment against her and remanded for a new trial, based on the erroneous admission of testimony by an unendorsed expert witness. At her second trial, Nelson was acquitted of all charges against her. After her acquittal, Nelson filed a motion in the trial court for a refund of the money she had paid towards costs, fees, and restitution. The trial court refused to order the Department of Corrections to refund Nelson’s money, concluding that it lacked the authority to issue such an order. The court of appeals reversed the trial court’s decision, concluding that the State owed Nelson a refund. The Colorado Supreme Court later reversed the court of appeals and held, first, that the trial court lacked any statutory authority to order the State to pay a refund and second, that sufficient due process for Nelson was provided by the Exoneration Act, a statute that created a civil claim for wrongfully convicted defendants to (among other things) obtain a refund of fees and costs upon proving their innocence by clear and convincing evidence.
Case Comes to the Supreme Court
The case is now before the U.S. Supreme Court. Though the Colorado Supreme Court had deemed the procedure afforded by the Exoneration Act sufficient process to satisfy the Due Process Clause, the two sides differed on a much more fundamental question at oral argument. Nelson (through her attorney) claimed that the money taken from her was her property and that the Exoneration Act provided inadequate process to satisfy due process requirements for taking her property. The Colorado Solicitor General, on the other hand, did not defend the Exoneration Act’s adequacy so much as deny its necessity altogether. During questioning, the Solicitor General asserted that the money taken from Nelson was not her property at all but the property of the State. Accordingly, he suggested, the State could have provided no avenue for a refund of the money and that, absent such an avenue, Nelson could be precluded from suing for the refund by the State’s sovereign immunity.
Interestingly, the Solicitor General appeared to agree with Nelson that if the money taken from her were deemed to be her property, then there would have to be a simple, minimal sort of procedural requirement in place for her to receive her refund. In his words, “if this truly is Petitioners’ property, [there] would have to be minimal requirements.” This position is apparently distinct from both the Colorado Supreme Court’s approach and the view of the petitioner. The Colorado Supreme Court appeared to assume that the money was in fact Nelson’s but concluded that the burdensome Exoneration Act provided adequate process. In the court’s words, “[t]he Exoneration Act provides sufficient process for defendants to seek refunds of costs, fees, and restitution that they paid in connection with their conviction,” words that seemingly endorse the view that some process is indeed required. Petitioner’s (i.e., Nelson’s) view reflects aspects of both of these approaches: the money belongs to Nelson (because there is no valid conviction to support the State’s holding onto it) but the Exoneration Act provided inadequate process (because, among other things, it reverses the presumption of innocence that ought to apply when there is no valid conviction).
Whose Money Is It?
Because neither party in the Supreme Court seemed interested in defending the Exoneration Act as providing sufficient process for the deprivation of petitioner’s property, the real question before the Court will be whether or not the money taken from petitioner pursuant to her original conviction is her money or the State’s money. Based on the Colorado Solicitor General’s concessions at oral argument, the answer to this question ought to go a long way toward disposing of the case.
Colorado claims that the money belongs to the State because it was validly taken after a trial at which the defendant was convicted. Though Colorado provides a procedure for an innocent person to get the money back (by proving her innocence in a civil action), unless and until she takes advantage of that procedure (and succeeds in the action), the money properly remains with the State. To support this claim, Colorado makes a fascinating argument. It says that if a convicted defendant were truly entitled to something like an automatic return of what was erroneously taken from her, then why isn’t she entitled to compensation for the time she spent in prison? Since her conviction was invalid, not only the money taken from her but the liberty taken from her should have remained in her possession. Yet even the petitioner does not claim that she is constitutionally entitled to be compensated for the time she spent behind bars. Why, then, should she be entitled to the return of the money that was taken from her, the less significant deprivation of her rights resulting from the erroneous conviction, compared to incarceration?
There is something very compelling about this argument. It is doubtless true that having to spend time in prison based on an erroneous conviction is worse than having to pay some money (according to the majority of the Colorado Supreme Court, $702.10 was withheld from Nelson’s inmate account) based on that same conviction. Yet no one is claiming a right to an automatic “refund” (in the form of money damages) for the time spent in prison. It would seem to follow even more strongly that the petitioner is entitled to no refund (or, at the very least, to no automatic refund) of the money taken from her.
Though seemingly compelling, however, there is a response to this argument. The response lies in the difference between a refund and compensation. The petitioner characterizes what she seeks as a refund of her money, currently (and illegitimately) in the possession of the State. The State, by contrast, characterizes what she seeks as compensation for the loss of her money, the sort of compensation that one obtains by bringing a lawsuit against the State, authorized only by a waiver of sovereign immunity (such as in the form of the Exoneration Act).
If the money Nelson seeks is indeed compensation, then it is no different in substance from the compensation that she might seek for her incarceration. And if the latter is not available to her as a matter of right under the Due Process Clause, then neither should the former be.
But if the money that Nelson seeks is instead best characterized as a refund rather than compensation, then it is very different from seeking recompense for the time spent incarcerated. Nelson is not looking to the time when she was deprived of both her liberty and her property (the money) pursuant to what turned out later to be a wrongful conviction and asking for that back. Getting that back would require interest on the money (because that is the measure of the loss suffered as a result of not having had the money for the period during which it was in the State’s possession) and compensation for the incarceration (because there is no other way to “give back” the liberty taken away during her incarceration). What Nelson says she entitled to is (1) her liberty now (which she has) and (2) her money now. In other words, just as the State released her from custody after her conviction was reversed, the State—she argues—must release her money from custody now that her conviction has been reversed. This would seemingly be an obvious parallel if the State had confiscated her jewelry upon incarceration instead of taking her money out of an account. The State would certainly have no basis for keeping the jewelry.
The difference here, between compensation and a refund, is subtle but it has to do with timing. We seek compensation for harms that have been done to us in the past, and getting that compensation typically requires us to go into court and bear the burden of proving our entitlement to it. We seek “returns” (or “refunds”) of valuable things that are currently in someone else’s custody and should be restored to our custody, and that would include giving us custody of ourselves (by releasing a defendant from prison) and giving us custody of our possessions (by returning money that was taken pursuant to a subsequently invalidated conviction). For returns, we expect simpler procedures that do not require us to prove much (other than, in this case, that our conviction was reversed and that a stated amount of money was taken from us). In seeking returns, we are not complaining about the time that our things (ourselves or our property) already spent in another’s possession; we simply want these things (ourselves and our property) back now.
After considering both characterizations of what the petitioner seeks, I find the “refund” approach more persuasive. Nelson wants her money back. The State would not have her money were it not for what turned out to be an invalid conviction. It therefore should return the money and should do so on the strength of the conviction’s invalidation rather than any need to prove innocence by clear and convincing evidence. As Justice Kagan put it at oral argument, “… it’s — it’s money that’s conditioned on a valid conviction. And when that valid conviction goes away, it seems the most natural, obvious thing in the world to say that the State’s right to that money evaporates at exactly the same moment.” So long as the conviction was in place, then, the State could validly hold the money (as well as the defendant) in its custody, but not after the valid conviction “goes away.”
At one point in oral argument, Justice Breyer challenged the State’s characterization of the money as the property of the State and, specifically, the claim that there need be no avenue at all for the return of the money. He said, “You have a corporate criminal defendant, you can’t put him in jail, and — and so what they do is they fine the corporation $15 million. And then the State says, by the way, why appeal? If you win, we’re not going to give you the money back as the Chief Justice said. We’ll assert sovereign immunity. Now, there’s something wrong with that. I’m trying to put my finger on it.” What’s wrong with it, I would say, is that once the conviction is invalidated, the money that went into the fine becomes the defendant’s property again, just as a living defendant’s body would become his again at that point. In both cases, we can best describe what is going on as someone seeking a refund of what is his in the present, not compensation for what was wrongfully done to him in the past.