Due Process

SCOTUS Says States Have No Right to Money Taken Based on Overturned Convictions

If making people prove their innocence to get their property back violates due process, what about civil forfeiture?



This week the Supreme Court ruled that Colorado has no right to keep fines, fees, court costs, and restitution it extracts from criminal defendants whose convictions are later reversed. By forcing people to prove their innocence before they can get back property that is rightly theirs, the Court said, Colorado has been violating the 14th Amendment's guarantee of due process. The Institute for Justice, which filed a brief in the case emphasizing that the presumption of innocence is an essential aspect of due process, makes a compelling argument that civil asset forfeiture routinely violates that principle.

The Court's decision in Nelson v. Colorado, which was joined by seven justices (Clarence Thomas dissented, and Neil Gorsuch joined the Court too recently to participate), came in response to challenges by Shannon Nelson and Louis Madden, who tried to get back money the state took from them based on convictions that were overturned. Nelson, who in 2006 was convicted of two felonies and three misdemeanors based on allegations that she had abused her four children, was sentenced to 20 years in prison and ordered to pay $8,193 in court costs, fees, and restitution, $702 of which was taken from her inmate account before she won a new trial and was acquitted. Madden, who in 2005 was convicted of two felonies based on allegations that he had patronized an underaged prostitute, received an indeterminate prison sentence and was ordered to pay $4,413 in costs, fees, and restitution, $1,978 of which was collected before his convictions were reversed on appeal and the state decided not to prosecute him again.

Nelson and Madden got a sympathetic hearing at the Colorado Court of Appeals, which concluded that they had a right to refunds. But the Colorado Supreme Court disagreed, saying they could get their money back only if they followed the process prescribed by Colorado's Compensation for Certain Exonerated Persons statute, a.k.a. the Exoneration Act. That law requires exonerated defendants seeking compensation to file a lawsuit and prove their innocence by clear and convincing evidence. That procedure is prohibitively expensive for people seeking the return of modest sums, and it is no help at all for people convicted of misdemeanors, which are not covered by the law.

More fundamentally, the U.S. Supreme Court says in an opinion by Justice Ruth Bader Ginsburg, the Exoneration Act is inappropriate for people who are seeking not compensation for wrongful convictions but the return of money the state took based on legal determinations that are no longer valid. "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," Ginsburg writes. "To get their money back, defendants should not be saddled with any proof burden. Instead…they are entitled to be presumed innocent." That was true before Nelson and Madden were tried, Ginsburg observes, and it is true again now that their convictions have been nullified.

The parallels with civil asset forfeiture are pretty clear. In both cases, the government takes someone's property based on allegations of criminal activity, and in both cases the owners are forced to prove their innocence if they want to get their property back.

Nelson v. Colorado "upholds the fundamental principle that Americans are entitled to be presumed innocent until proven otherwise," says Institute for Justice attorney Robert Everett Johnson. "The Court expressly rejected Colorado's argument that the 'presumption of innocence applies only at criminal trials,' explaining that the government 'may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.' Unfortunately, civil forfeiture laws turn the presumption of innocence on its head. Using civil forfeiture, law enforcement seizes billions of dollars in cash and other property every year based only on suspicion of a crime. Property owners are then required to prove their own innocence to get that property back."

Civil forfeiture is actually worse than the financial losses suffered by Nelson and Madden, because at least in their cases the government initially had to prove their guilt beyond a reasonable doubt. Since civil forfeiture is notionally an action against the property rather than the person to whom it belongs, the government need not charge the owner with a crime, let alone convict him.

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  1. So will Colorado ever actually cut checks to these people? What happens if it refuses?

    1. The feds come and take away the people who decide not to comply.

    2. CO already changed the law. They passed the legislation unanimously in March.


      1. As an aside - the original legislation looks like it was actually intended to provide compensation for vacated/overturned convictions. It was just poorly written (included 'fees already paid' with 'claims for compensation') - and bureaucrats took it over and did what bureaucrats do.

    3. Not a damn thing. SCOTUS has no police, and no military.

      1. "John Marshall has made his decision; now let him enforce it."

  2. And, of course, Thomas dissented. Is there any justice who isn't completely wrong on at least some issue of state power?

    1. I'm interested in the "WHY" of Thomas' dissent.

      1. Nelson v. Colorado
        Thomas dissents by concluding that once Colorado receives the money, it is now state money and the Defendants must show a "legitimate claim" to the money. Thomas says the Defendant's do not have a substantive right to the money once it is paid into state coffers. Thomas says that the 14th Amendment does not establish rights to property, so the court must look to state law. Colorado has a law to return property and the Defendants did not or could not use the law or Colorado makes no provision for misdemeanor property return.

        He tries to leave it up to the state but at the same time backs up state seizure, even when the reason for seizure is wrong. He clearly says that once government gets its hands on your property, the Constitution provides no check to government power in this regard.

        I think Thomas does not view the Constitution as a solution to government wrongs but a check to government power. In this case, the wrong has already been perpetrated by Colorado taking the money at the time because of a criminal conviction. These justices just do not want to admit police and states make purposeful and/or unintentional errors that seriously affect people and they have allowed this to happen with their decisions.

        1. Perhaps Thomas could have simply employed the "fruits from the poison tree" principle or just extrapolate , a penumbra even, in the Constitution where it is reasonably clear that violent theft by the government is not protected.

          Maybe it could fall under the "no quartering of troops" restriction. The only difference here is you are paying for troops to live somewhere else until they need to come back to you for more....with or without a knock.

          1. As Bob Meyer put it more to the point, Thomas does not tend to extrapolate new doctrines from the Constitution. It is either protected by the Constitution or it is not. The Defendants did not claim a substantive right to the money but only an interest, so Thomas said that the SCOTUS must defer to Colorado law.

          2. The last time the 3rd Amendment was invoked it was shit on by a district judge.

        2. If the state has the right to confiscate property before a trial, then I can see that it could then be considered state property at that time. It seems to me that the question is the legal status of property impounded prior to a court conviction. Or even if a government entity has that right to being with (I suppose it has, legally). Has the SCOTUS ever ruled on this? What might be needed is a suit that addresses the initial impounding of property and what the legal status of that property should then be.

        3. This Clarence character is the same Long Dong Silver allegedly harrassing female co-workers after reading Atlas Shrugged? With friends like him and Ahnult Schwartzenegger, who needs enemies?

          1. Considering your comment in it's entirety I'm left wondering why you would use the qualifier "allegedly"? Or a question mark? Also what you think that allegation has to do with the issue? Or who is being referred to as a friend of both him and Schwarzenegger? Or even if you agree with the ruling, or the educated comments you replied to.

            1. I think Mr. Phillips just has a 'Hankering' from for some hot constitutional Mandingo action.

      2. Thomas' dissent was strategic. He pointed out that the present interpretation of the "due process" clause of the 14th Amendment conveys no substantive rights to individuals, only limited procedural protections. Thomas actually believes in substantive due process and argued that since the plaintiffs made no claim of a substantive right to the money, they left themselves at the mercy of the State of Colorado.

        What Thomas' dissent accomplished was to demonstrate that without substantive due process, you have no rights other than those codified in law which can be modified or eliminated entirely by legislatures.

        1. I guess individual justices know the vote when they write up their opinions or dissents. You're suggesting he knew he wouldn't affect the outcome but took the opportunity to make a point.

          1. That's what concurring is for.

          2. Read Thomas' stirring history of the 14th Amendment in his concurrence in "McDonald v Chicago". He wanted to overturn the Slaughter House cases and enforce not just the entire Bill of Rights against state violations of rights but also wanted to restore the "Privileges and Immunities" clause to its original meaning where it protected economic rights against states as well.

            I cannot imagine that someone who so staunchly defends substantive due process would ever allow a state to do what Colorado did to innocent people.

      3. In the absence of any property right under state law (apart from the right provided by the Exoneration Act, which petitioners decline to invoke), Colorado's refusal to return the money is not a "depriv[ation]" of "property" within the meaning of the Fourteenth Amendment. Colorado is therefore not required to provide any process at all for the return of that money.

      4. One would err in forming conclusions about Thomas's dissent based only on intuitive notions of justice, and without reading it. The dissent is based on law, not on justice:

        The Court [majority] today announces that petitioners have a right to an automatic refund because the State has "no legal right" to that money. But, intuitive and rhetorical appeal aside, it does not seriously attempt to ground that conclusion in state or federal law. If petitioners' supposed right to an automatic refund arises under Colorado law, then the Colorado Supreme Court remains free on remand to clarify whether that right in fact exists. If it arises under substantive due process, then the Court's procedural due process analysis misses the point. [citation omitted; emphasis added]

        1. But, intuitive and rhetorical appeal aside, it does not seriously attempt to ground that conclusion in state or federal law.

          How about the fourth and fifth amendments?

          1. The courts have a funny way of dismissing other constitutional and/or legal concepts unless it benefits their legal argument.

            Its kind of why their opinions are pages long rather a few sentences. The twisted legal logic can be awe inspiring sometimes.

        2. Ya, he's basically arguing that the constitution does not require any action to correct mistakes in the case of any property ceased under a wrongful conviction. That makes due process pretty friggen meaningless in effect. Just another assault on the right to petition via another form of sovereign immunity if you ask me: now the states only have to rectify property ceased under wrongful convictions if they make laws forcing themselves to.

          I think it's pretty banal to think due process means anything if it's only required in a specific period of time. If you get railroaded by an overzealous or incompetent court, you're not going to be able to sue them for damages... so how is one supposed to seek redress?

  3. How novel. Battle across thought-beaten judicial landscapes up to the whited pinnacle of the leering and hoary to substantiate logic obvious as goddamn fingernails.

    1. Agile,

      I'm curious to know what psychoactive drugs fuel you fascinating surreal posts. I think I might like to try some.

      1. Reality is a helluva drug.

      2. Getting a bit tedious by now surely.

  4. Always disappointing to see Thomas on these kinds of cases. He is one of the better justices on many issues.

    1. Eh, Thomas has been getting consistently worse the deeper he goes into his career. He's basic Justice Abe Simpson at this point.

      1. Waiting for the day he goes back to tying an onion on his belt.

      2. Early onset dementia? Or maybe Ruth rebuffed his advances and hurt his feelings?

    2. What specific problem do you see in Thomas's dissent? (For context, see my reply/comment above.)

      1. Thomas' dissent overthrew a lot of precedent in order to make a sticklerish and meaningless point.

        Alito's separate concurrence (narrower than the majority opinion) was cogent:
        if the status quo ante must be restored, why shouldn't the defendant be compensated for all the adverse economic consequences of the wrongful conviction? After all, in most cases, the fines and payments that a convicted defendant must pay to the court are minor in comparison to the losses that result from conviction and imprisonment, such as attorney's fees, lost income,
        and damage to reputation. The Court cannot convincingly explain why Mathews' amorphous balancing test stops short of requiring a full return to the status quo ante when a conviction is reversed. But Medina does.
        The American legal system has long treated compensation for the economic consequences of a reversed conviction very differently from the refund of fines and other payments made by a defendant pursuant to a criminal judgment. Statutes providing compensation for time wrongfully spent in prison are a 20th-century innovation. By 1970, only the Federal Government and four States had passed such laws. Many other jurisdictions have done so since, but under most such laws, compensation is not automatic. Instead, the defendant bears the burden of proving actual innocence (and, sometimes, more).

  5. "Since civil forfeiture is notionally an action against the property rather than the person to whom it belongs, the government need not charge the owner with a crime, let alone convict him."
    Sounds right to me.
    Bad money! Bad! You are sentenced to a term in the government bank until we decide to spend you.
    Evil car! Just evil! You are sentenced to carry around undercover cops until your tires fall off.
    Kind of like gun violence?

  6. received an indeterminate prison sentence

    How's that work?

    1. 'Merica!

      That's how, commie!

    2. You're in prison until the parole board decides to let you go.

  7. I'd hypothesize that Thomas's carte blanch deference to law enforcement is some PTSD-like result of having grown up black in the Jim Crow era south.

    1. It does sound kinda Stockholmy. But I've seen nothing to suggest he'd been kidnapped and raped by the Symbionese Liberation Army. Was there anything about that in the Minority Report?

    2. Strictly speaking, Thomas is right on his points, but I'm much more of the 'Constitution as chains on the rapacity of gov't' philosophy. RBG wrote a nice defense of individual rights being superior to the State or the state (read down into her opinion). Too bad she doesn't see her arguments applying to the 2A or some other parts of jurisprudence.

  8. Ruth Baader-Meinhof finally gets one right.

    1. These opinions are written law clerks for the justices but she did sign off on it, so that's good.

      In the end, this case will not amount to much since conviction reversals are so difficult.

      I personally think that she knows that she cannot make it another 4 years and will leave the court one way or another. This is snub to state power that she has voted for numerous times, since it will be conservatives in power for a long time. Watch for numerous cases before the SCOTUS to end this way with the justices that are old.

      Or she is senile and forgot which team she is on.

  9. Whats with the ferret?

  10. Great news, for a change! An elderly couple enroute to These States misread the Customs Gestapo instructions in tiny print in two languages, both foreign to them. They understood they could divide the more then $10,000 cash they were bringing their son, so that neither husband nor wife carried an amount sufficing as a pretext for confiscation. Customs said the combined amounts were what mattered. Their son contacted the Institute for Justice, which gave them valuable advice. As a result, the looters eventually returned 94% of the confiscated cash.

    1. Not 'looters'. THIEVES! And it is 'stolen' cash.

  11. Clarence Thomas dissented

    And yet, this is not causing reason.com Republicans posing as libertarians to sound a dog whistle even.

    You can be sure that were that a "liberal" justice, essays would be authored.

    1. I guess you missed the earlier discussion about why Thomas dissented.

      Did you notice all the lefties calling for Thomas' retirement? I wonder where the lefties posing as Libertarians are to write those essays.
      Thomas' retirement

  12. The bright side is that with growing awareness that asset forfeiture causes flash crashes, real crashes, panics and depressions, The Political State may have instructed La Suprema Corte to take this danger off the table before some Senator's investments lose value or voters turn Libertarian en masse. When the LP got an electoral vote in 1972 The Court took abortion off the chessboard lest it cost the GOP another 5 elections (as after alcohol prohibition). Recent decisions stopping fanatics from picking on gay couples also weakened opposition to GO-Pee candidates. The Court may be gearing up to take another dangerous toy away from mystical prohibitionism before it again crashes the economy.

  13. Interesting that Colorado finds the need for those 'presumed innocent' of a crime to now prove it to get their money back. Then again there's less oxygen in that mile-high atmosphere. So in a pinch they can always blame geography..

  14. OK, does the SC have 'the right' to take the money away?


  15. JUST when you think RBG is a TOTAL tool for the STATE, she goes and gets it right....and Clarence Thomas gets it wrong. That may be the first time that has happened (me both disagreeing with CT and agreeing with RBG)!

  16. Once they get their damn claws into someone, they think they own you. Keep writing and calling your legislators. This is right up the same alley as Civil Asset Forfeiture. CAF needs to be abolished and re-written. No touching anyone's "stuff" without a conviction of a crime. Otherwise, it's just legal robbery.

    1. How about this? The Feds take every last envy and piece of property from aerogel Soros, his family, and all his foundations, do the same to Michael Bloomberg and every Hollywood A list progressive. Block grant some of that money to the sates.

      In return, he Feds agree not to touch anyone else's shit for at least the next 100 years. Everyone wins!

      1. SOROS !!!!!!!!11!!!!!!!!!!!

  17. This bodes well for unconstitutional asset forfeiture as well. Hopefully that type of case will come to the court before too long. Innocent until proven guilty, and even if you aren't guilty we get to keep all your money and assets.

  18. Yeah, Thomas is right on his points, but I'm much more of the constitution as chains on the rapacity of got philosophy.

  19. In some ways it will be a shame that ill gotten gains can't be seized by the civil asset forfeiture police and so we suppose the suspects in this video who I suspect have by fraud stolen $19.5 billion this year will get to hang on to their suspected ill gotten gains. https://youtu.be/d634wEZPImI

  20. At least this plugs one of the many holes in our Swiss Cheese Constitution

  21. The easier answer to the title question is "'no, states, like most imaginary things, don't have 'rights'"

  22. This is different from asset forfeiture in that it was paid as part of the punishment. Forfeiture is the state seizing money or property that is the proceeds or benefits of a crime, and therefore not legally acquired by the person. By law, it's already the state's. That's the legal theory, anyway.

    In practice, of course, the property or money might have little or nothing to do with any crime, but some law enforcement officer sees an opportunity to enrich his department and get some cool new toys.

    In the case before the Court, the couple was fined (punishment). Once the conviction was lifted, there's no legal basis for punishing them. That's why Thomas's dissent is wrong, but this won't provide much help to those who've lost money to forfeiture.

  23. "Since civil forfeiture is notionally an action against the property rather than the person to whom it belongs, the government need not charge the owner with a crime, let alone convict him."

    This is the most egregious aspect of civil forfeiture - this bullshit rights "loophole" is not just a violation of due process rights, its a violation of the fundemental/natural rights of property. If you act against a property that is owned, you are by default acting directly against the owner's rights.

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