For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...
If you’re convicted of a crime and ordered to pay a fine, but your conviction is later overturned, you’re not necessarily entitled to a refund, arguments at the U.S. Supreme Court revealed Jan. 9 ( Nelson v. Colorado , U.S., No. 15-1256, argued 1/9/17 ).
Under Colorado law, defendants seeking to recover those fines must prove actual innocence at a hearing under a clear and convincing standard—a harder standard to meet than preponderance of the evidence, but easier than the reasonable doubt standard used at criminal trials.
If the court finds the defendants maintain a right to the money they originally paid, the issue likely becomes one of whether the Colorado statute at issue violates their procedural due process rights, according Steven Schwinn, a constitutional law professor at the John Marshall Law School in Chicago.
If the court finds that the right to the funds was procedural, as opposed to substantive, then it will determine whether that statute provides a sufficiently fair process to recover the money, Schwinn told Bloomberg BNA.
The petitioners are more likely to win under a procedural due process analysis because the statute shifts the burden of proof for innocence to the accused, he said.
If the court instead chose to use a substantive due process analysis, it’s unlikely they would find a substantive right to the money exists here, Schwinn said. The court has shown itself to be resistant to substantive rights cases, but it’s harder to figure out what the right even is in this case, he explained.
The two petitioners in the case paid $702.10 and $4,000, respectively, in court costs, fees, and restitution before their convictions were either overturned by a jury or vacated by a judge. Neither was able to recover the money.
Although the bench peppered both attorneys with questions, the questions mostly focused on who could claim ownership over the funds.
However, justices seemed to rail against Colorado’s argument that the fines become public funds once paid, relieving the government of any obligation of refunding. The state Exoneration Act instead gives defendants an option for compensation in the case of actual innocence, argued Colorado Solicitor General Frederick R. Yarger.
“I mean, what are you going to do?” asked Chief Justice John G. Roberts Jr. “You can’t give them back whatever time they’ve spent in jail. You just can’t do it. But you can give them the money back.”
Yarger maintained that the statute established a proper procedural framework that allows for compensation for wrongful convictions. The petitioners merely didn’t meet the burden under the statute, he said.
But other justices expressed concern over the possibility of governmental wrongdoing, including Justices Stephen G. Breyer and Elena Kagan.
For example, Breyer explained, the state could fine a corporation millions for wrongdoing if it couldn’t prove crimes against any individual executive. The state could claim sovereign immunity and assert that it didn’t need to pay it back, which Breyer said would create a disincentive for appeal.
Kagan asked how acquitted defendants could win if their original charges were the result of Brady v. Maryland (373 U.S. 83, U.S., No. 490, 5/13/63), violations.
Yarger drew a distinction between those situations and the one at hand, arguing that the Exoneration Act provided a fair process for compensation where there previously wasn’t an option for recovery available.
“But what the state is not required to do is, merely because the conviction is overturned, provide compensation for losses that occur attendant to a conviction that is overturned,” Yarger said.
It’s unlikely that the court would analyze the issue under substantive due process because the issue doesn’t squarely fit with other rights like the right to marry, Schwinn said. Substantive rights usually touch on issues that are fundamental and rooted within the nation’s history and traditions, he explained.
Schwinn said it was a difficult substantive right to pin down.
“It’s the right to own money, I guess?” he asked. “Or is it the right to not having your money taken by the state?”
Although Schwinn said he could imagine a situation where a couple of the justices find the statute does provide procedural due process, he said it’s unlikely that the court would rule that way.
“It’s extraordinary in terms of the way we think about criminal defendants’ rights and the criminal process,” Schwinn said. “It shifts the burden entirely from the state. What it does is essentially penalize people who have been accused but acquitted of a crime and, without the right of an attorney, prove actual innocence by clear and convincing evidence—which we just don’t do in our criminal process.”
Stuart Banner, Los Angeles, argued for the petitioners.
To contact the reporter on this story: Jessica DaSilva in Washington at email@example.com
To contact the editor responsible for this story: C. Reilly Larson at firstname.lastname@example.org
Full text of transcript available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1256_d1o2.pdf.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)