The Volokh Conspiracy

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Volokh Conspiracy

Whose money is it?: Clarence Thomas and the due process clause


A few days ago, I wrote about the Supreme Court's decision in Nelson v. Colorado (the "exonerated criminal defendant's refund" case), and the comments on that post illuminated a rather interesting fault line in the opinions to which I had not paid much attention.

Here's the background, for those unfamiliar with the case: Colorado imposes court costs and various other fees on anyone convicted of a crime; those whose convictions are subsequently overturned can obtain a refund of those fees, but only through a special proceeding at which they have the burden of showing, by clear and convincing evidence, that they were innocent of the crime(s) with which they were charged.

The court held that this was a violation of the 14th Amendment's due process clause—i.e., that this procedure deprives these individuals of property without due process of law. Why? Because it is their money; the state's claim to the funds was based "sole[ly] on the fact of their criminal convictions," and once the convictions are voided, Colorado has "no legal right to exact and retain petitioners' funds." Now that their convictions have been overturned, these individuals must be presumed innocent:

"Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions. … [U]nder the Due Process Clause, [an individual] who has not been adjudged guilty of any crime may not be punished."

As one commenter put it: "So it takes [7] Supreme Court Judges [and how many lower court judges?] to conclude what is readily apparent to anyone with an ounce of common sense."

Justice Clarence Thomas was the sole dissenter, and his opinion should strike a chord—a dissonant and rather nasty-sounding chord—with anyone with libertarian leanings.

He begins with the uncontroversial assertion that in order to prevail on their due process claim, the petitioners "must first point to a recognized property interest in that money, under state or federal law." You can't, in other words, be deprived of property without due process of law unless what you have been deprived of is actually your property and you can show some "substantive entitlement" to it.

Fair enough. But here, he goes on to say, the money that the petitioners seek is not "their money" at all; it's Colorado's money. It used to be "their money"; but once it was "lawfully exacted pursuant to a valid conviction," it became the state's money. This, Thomas points out, is what the Colorado Supreme Court had held in the proceedings below, that "moneys lawfully exacted pursuant to a valid conviction become public funds" under state law.

In the absence of any property right under state law … 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.

To Thomas, in other words, the refund proceeding is something like a sate grant or fellowship program, and the state can set whatever conditions it likes before it gives away its money to particular individuals.

Pretty breathtaking stuff, when you think about it—enough to send chills down the spine of any right-thinking libertarian out there, I would think. The state gets to define the conditions under which it can turn your property into its property; then, if you want to get it back (because you don't in fact fulfill the conditions that they set), the state doesn't have to prove that the seizure was lawful; you have the burden of proving (by clear and convincing evidence) that it was not!

It's another way of saying: Once the state takes your money and calls it its own, we presume that it had a good reason for doing so, and we'll give it back to you only if you prove that it didn't have a good reason for doing so.

That's a nice gig if you can get it, a good way to extort money from innocent people. Let's flex the muscles of Thomas's position a little bit:

  • Colorado, let's suppose, imposes fines of up to $5,000 if you fail to pay state sales tax on items sold;
  • State revenue agents are authorized to withdraw up to $5,000 from your bank account if they have reason to believe you failed to pay state sales tax on something;
  • If you would like your money back (because you have not, in fact, failed to pay the sales tax), you can get it, but you will have the burden of showing, by clear and convincing evidence—hell, why not go all the way and force you to show beyond a reasonable doubt?—that you did not fail to pay the tax.


  • Colorado authorizes itself to withdraw $250 from the bank account of anyone whose car is parked illegally in downtown Denver, and it declares that the money, once transferred, is the state's;
  • You wake up one morning to find that you're out $250 because on April 15 you had parked illegally in downtown Denver, even though you had not been to downtown Denver that day;
  • You're told that you can get your money back—or rather, that the state will give you $250 of what is now its money—if you come down to the courthouse and prove, beyond a reasonable doubt, that you did not park unlawfully on April 15.

Fortunately, Thomas's position has no other adherents on the court. This bodes well, I think, for the continuing series of challenges to the appalling practice of "civil forfeiture" across the country (about which I've blogged many times before—see here, here and here). Many civil forfeiture regimes look an awful lot like the hypotheticals set forth above, and, Thomas's lone voice notwithstanding, the court's strongly worded rejection of his view –

"Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions. … [U]nder the Due Process Clause, [an individual] who has not been adjudged guilty of any crime may not be punished."

—is sure to become an important part of the constitutional due process challenges to forfeiture practices nationwide.