By: David E. Saperstein
News Flash. An innocent person should not pay restitution for a crime that she legally did not commit. So proclaimed the Supreme Court of the United States (SCOTUS) in Nelson v. Colorado, decided last month.1
Two similar cases were before the Court for review. Shannon Nelson and Louis Alonzo Madden were each convicted and sentenced to prison in two separate cases in Colorado. As a result of her conviction, Nelson was ordered to pay over $ 8,000 in court costs, fees and restitution, and Madden was ordered to pay nearly $ 4,500. Nelson’s conviction was reversed due to a trial error, and a new jury acquitted her on retrial. Madden’s convictions were reversed and vacated by reviewing courts, and the State elected not to retry him. 2
Both Nelson and Madden had already paid some of their fees, costs and restitution to the State, and they wanted their money back. On its face, it seems pretty straightforward. If they are no longer considered guilty of crimes, they are by definition innocent. As such, the monies they paid to compensate the victims of the crimes they did not commit should be returned to them. If the presumption of innocence applies to a person charged with a crime, then surely it applies again to that same person after her charges have been overturned by a reviewing court.
Oh, if it were only that simple. The Colorado legislature apparently had its own ideas about the presumption of innocence. In 2013 Colorado lawmakers passed the Compensation for Certain Exonerated Persons statute (Exoneration Act or Act)3, which created a civil procedure, separate from the criminal process, whereby an innocent person who was wrongly convicted must bring a civil claim for return of monies that she paid out as a result of her overturned conviction. In order to succeed in a reimbursement claim under the Act, a petitioner must show, by clear and convincing evidence, her actual innocence of the offense of conviction.4 If she succeeds in proving her actual innocence by clear and convincing evidence, only then is she entitled to a refund of costs, fees and restitution paid out as a result of the invalid conviction, and to additional compensation for time served.5 The Supreme Court of Colorado, reviewing these cases, deemed the Exoneration Act to be the “exclusive process for exonerated defendants seeking a refund of costs, fees and restitution.”6
In a 7 to 1 majority opinion 7 authored by Justice Ginsburg, SCOTUS held that Colorado’s Exoneration Act reimbursement scheme “does not comport with the Fourteenth Amendment’s guarantee of due process.”8 As the majority reasoned:
“‘[A]xiomatic and elementary,’ the presumption of innocence ‘lies at the foundation of our criminal law.’ Colorado may not presume a person adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”9
Moreover, the majority found unacceptable the risk of erroneous deprivation of defendants’ interest in return of their funds. Colorado’s Exoneration Act provided an exonerated defendant’s exclusive path to reimbursement, and the Act conditions refund on defendants’ proof of actual innocence by clear and convincing evidence. In the strongest language from the opinion, Justice Ginsberg reaffirmed the primacy of the presumption of innocence:
“[T]o get their money back, defendant’s should not be saddled with any proof burden. Instead…they are entitled to be presumed innocent.” 10
Rejoice. Presumption of innocence lives to see another day.
1 Nelson v. Colorado, Slip Op. No. 15-1256 (April 19, 2017).
2 Nelson v. Colorado, 362 P.3d 1070, 1071 (Colo. 2015).
3 Colo. Rev. Stat. §§ 13-65-101, 13-65-102, 13-65-103 (2016).
4 Colo. Rev. Stat. §§ 13-65-101(1), 13-65-102(1).
5 Colo. Rev. Stat. § 13-65-103(2)(e)(V); Nelson v. Colorado, 362 P.3d at 1075.
6 Id. at 1078.
7 Justice Thomas dissented. Newly confirmed Justice Gorsuch did not participate in this opinion.
8 Nelson v. Colorado, Slip Op. No. 15-1256 at 5-11 (April 19, 2017).
9 Id. at 7 (citations omitted).
10 Id. at 8.