Nelson v. Colorado: The due process right to a refund?

You do something you would never do: You have too much to drink and get behind the wheel. Next thing you know you’re arrested on suspicion of DUI. Because if you are convicted you will lose your job, you reject the prosecutor’s plea offer and demand a jury trial. The jury convicts you. It’s your first DUI, so you’re sentenced to probation with some alcohol classes and community service, no jail. And you have a sizeable tab. Not to mention your lawyer’s fees and the cost of the classes, in Colorado you’d owe the following: (1) 21.00 in court costs, (2) a 5.00 court security fee, (3) a 5.00 E-discovery fee, (4) a 2.50 genetic testing surcharge, (4) 20.00 for the Brain Injury Fund, (5) 33.00 for the Victim Compensation Fund, (6) 90.00 for the Law Enforcement Assistance Fund, (6) a 100.00 persistent drunk driving surcharge, (7) a 300.00 fine, (8) 222.00 for the Victim Assistance Fund, and finally (9) a 5.00 rural youth alcohol abuse surcharge. Having learned that Uber is much cheaper than a DUI, you quickly pay your dues.

Then a surprise: You win your appeal and are awarded a new trial. But because a key witness is now unavailable to testify for the state, the DA is unable to prosecute and the judge dismisses the case. No more probation, no more classes, no more conscripted volunteerism. You would also like a refund of all the fines, surcharges, and other fees you shelled out to the state coffers. But on that count, you’re out of luck, at least in Colorado.

When the Supreme Court resumes its docket in January, it will hear oral arguments in Nelson v. Colorado, which asks whether the Constitution’s due process clause requires Colorado to refund amounts paid pursuant to a criminal conviction that is later invalidated.

The Petitioners, two individuals whose felony convictions were overturned on appeal, and who were denied refunds, say it does. Their primary argument is that Colorado law, by denying such refunds, contravenes the presumption of innocence, which the Court has found an essential component of due process in criminal proceedings.

To understand the Petitioners’ argument, it is necessary to understand the basics of Colorado’s Exoneration Act. Responding to high-profile exonerations of convicted murderers, Colorado and other states passed laws that compensate innocent persons for the time they spent behind bars. (For a good story on the subject of compensating exonerees, see the New Yorker Annals of Justice piece “The Price of a Life”). To recover under the Exoneration Act, a defendant must file a civil action and prove, by clear and convincing evidence, that he is “actually innocent” of the crime. The Act was not intended to compensate defendants like the Petitioners, whose convictions were overturned because of a procedural or legal error, without evidence of a colorable claim of innocence. If a defendant can prove his innocence, he receives $70,000 for each year he was incarcerated (an additional $50,000 for each year incarcerated under a death sentence), and $25,000 for each year served on parole, probation, or as a registered sex offender after a period of incarceration. Important to this case, the exoneree also receives a refund of all monetary penalties.

The Petitioners argue that the Exoneration Act, at least with respect to its provisions governing refunds of monetary penalties, unconstitutionally flips the presumption of innocence. The argument’s appeal (I was sold for a few minutes) is superficial. The Exoneration Act only allows convicted felons who have served all or part of a sentence of incarceration to prove their innocence and receive a refund. Persons convicted of misdemeanors and of felonies where the sentence is something other than prison (e.g., probation)—in other words, a significant majority of people who pass through the criminal justice system—don’t have recourse to the Exoneration Act. Because the Exoneration Act doesn’t apply to this class of defendants, even armed with proof of their actual innocence they’re out of luck when it comes to getting their money back. If most defendants don’t have the ability under Colorado law to receive a refund by proving their innocence, then Colorado law doesn’t flip the presumption of innocence. There is simply no remedy for the perceived wrong (in legalese we say you’re “SOL”). Respondents compellingly argue that any such remedy would have to sound in substantive due process, and the Supreme Court’s jurisprudence on substantive due process just about closes the door on any claim that defendants have a substantive due process right to a refund.

Furthermore, it’s not clear why the presumption of innocence applies here. Black’s Law Dictionary defines the “presumption of innocence” as the “fundamental principle that a person may not be convicted of a crime unless the government proves guilt beyond a reasonable doubt, without any burden placed on the accused to prove innocence.” Courts have only recognized the presumption’s pride of place in criminal proceedings. No one is suggesting that Petitioners were tried and convicted without the benefit of the presumption of innocence. (If they had been, it would be an outrage that no one would be willing to defend.) Petitioners’ brief fails to justify why the presumption of innocence should also govern in a civil proceeding.

If the Respondents prevail before the Supremes, it may be because the implications of the Petitioners’ position are arguably far-reaching. A key sentence of the Respondent’s brief states that “Petitioners do not explain why the Constitution grants them compensation only for monetary payments they made pursuant to their convictions, while ignoring their loss of liberty during their time of incarceration.” Expect this question to be put to the Petitioners at oral argument: If the Court accepts that due process requires compensation for monetary payments, why doesn’t it also require compensation for the loss of liberty?

I have no doubt that Colorado should provide refunds of monetary penalties (with the exception of restitution) when a defendant’s conviction is overturned. Colorado’s law certainly feels unfair. But whether the Constitution requires Colorado to do so is an altogether different question, and not one the Petitioners’ brief answers satisfactorily.

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