In Nelson v. Colorado the Supreme Court struck down a Colorado law requiring defendants whose criminal convictions have been invalidated to prove their innocence by clear and convincing evidence in order to receive a refund of fees, court costs, and restitution. According to the Court in a 7-1 opinion, this scheme violates the Fourteenth Amendment’s guarantee of due process.

Cities and counties recently have had their own dues process problems with fines. While not raising the same legal issue, following the Department of Justice report investigating the 2014 police shooting in Ferguson, Missouri, numerous local governments have been sued for allegedly operating “debtor’s prisons” where defendants receive jail time if they can’t pay a fine.  

The Supreme Court has repeatedly stated that before courts convert unpaid criminal fines into jail time they must make a reasonable inquiry into the defendant’s ability to pay. Defendants must make “all reasonable efforts to pay”—including seeking work and borrowing money. If they still can’t pay they may not be automatically imprisoned without considering alternative means of punishing them.   

Shannon Nelson was convicted on a number of charges from the alleged sexual and physical abuse of her children. Her conviction was reversed due to a trial court error; a new jury acquitted her of all charges. Louis Alanzo Madden was convicted of two sex crimes. The Colorado Supreme Court reversed his conviction; the state did not appeal or retry the case.

The only way Nelson or Madden could recover fees, court costs, and restitution was filing a civil claim under Colorado’s Exoneration Act, which requires them to show by clear and convincing evidence their actual innocence.

Justice Ginsburg, writing for the majority, concluded that Colorado’s scheme doesn’t comport with due process, applying a three-part balancing test from Mathews v. Eldridge (1976), which considers the private and government interests affected and “the risk of erroneous deprivation of that interest through the procedures used.” According to the Court, “[a]ll three considerations weigh decisively against Colorado’s scheme.”

Nelson and Madden have an “obvious interest” in regaining the money they paid to Colorado. There is a risk they will be erroneously deprived of their funds because they must proof their innocence by clear and convincing evidence. “But to get their money back, defendants should not be saddled with any proof burden. Instead . . . they are entitled to be presumed innocent.” Finally, “Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right.”