Nelson v. Colorado,
581 U.S. ___ (2017)

Annotate this Case
  • Syllabus  | 
  • Opinion (Ruth Bader Ginsburg)  | 
  • Concurrence (Samuel A. Alito, Jr.)  | 
  • Dissent (Clarence Thomas)



No. 15–1256




on writ of certiorari to the supreme court of colorado

[April 19, 2017]

Justice Alito, concurring in the judgment.

I agree that the judgments of the Colorado Supreme Court must be reversed, but I reach that conclusion by a different route.


The proper framework for analyzing these cases is provided by Medina v. California, 505 U. S. 437 (1992) . Medina applies when we are called upon to “asses[s] the validity of state procedural rules which . . . are part of the criminal process,” id., at 443, and that is precisely the situation here. These cases concern Colorado’s rules for determining whether a defendant can obtain a refund of money that he or she was required to pay pursuant to a judgment of conviction that is later reversed. In holding that these payments must be refunded, the Court relies on a feature of the criminal law, the presumption of innocence. And since the Court demands that refunds occur either automatically or at least without imposing anything more than “minimal” procedures, see ante, at 10, it appears that they must generally occur as part of the criminal case. For these reasons, the refund obligation is surely “part of the criminal process” and thus falls squarely within the scope of Medina. The only authority cited by the Court in support of its contrary conclusion is a footnote in a dissent. See ante, at 6 (citing Kaley v. United States, 571 U. S. ___, ___, n. 4 (2014) (opinion of Roberts, C. J.) (slip op., at 10–11, n. 4)). Under Medina, a state rule of criminal procedure not governed by a specific rule set out in the Bill of Rights violates the Due Process Clause of the Fourteenth Amendment only if it offends a fundamental and deeply rooted principle of justice. 505 U. S., at 445. And “[h]istorical practice is probative of whether a procedural rule can be characterized as fundamental.” Id., at 446. Indeed, petitioners invite us to measure the Colorado scheme against traditional practice, reminding us that our “ ‘first due process cases’ ” recognized that “ ‘traditional practice provides a touchstone for constitutional analysis,’ ” Brief for Petitioners 26 (quoting Honda Motor Co. v. Oberg, 512 U. S. 415, 430 (1994) ). Petitioners then go on to argue at some length that “[t]he traditional rule has always been that when a judgment is reversed, a person who paid money pursuant to that judgment is entitled to receive the money back.” Brief for Petitioners 26; see id., at 26–30. See also Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 4–14 (discussing traditional practice).

The Court, by contrast, turns its back on historical practice, preferring to balance the competing interests according to its own lights. The Court applies the balancing test set out in Mathews v. Eldridge, 424 U. S. 319 (1976) , a modern invention “first conceived” to decide what procedures the government must observe before depriving persons of novel forms of property such as welfare or Social Security disability benefits. Dusenbery v. United States, 534 U. S. 161, 167 (2002) . Because these interests had not previously been regarded as “property,” the Court could not draw on historical practice for guidance. Mathews has subsequently been used more widely in civil cases, but we should pause before applying its balancing test in matters of state criminal procedure. “[T]he States have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of common-law tradition.” Medina, supra, at 445–446. Applying the Mathews balancing test to established rules of criminal practice and procedure may result in “undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order.” Medina, supra, at 443. Where long practice has struck a particular balance between the competing interests of the State and those charged with crimes, we should not lightly disturb that determination. For these reasons, Medina’s historical inquiry, not Mathews, provides the proper framework for use in these cases.[1]


Under Medina, the Colorado scheme at issue violates due process. American law has long recognized that when an individual is obligated by a civil judgment to pay money to the opposing party and that judgment is later reversed, the money should generally be repaid. See, e.g., Northwestern Fuel Co. v. Brock, 139 U. S. 216, 219 (1891) (“The right of restitution of what one has lost by the enforcement of a judgment subsequently reversed has been recognized in the law of England from a very early period . . . ”); Bank of United States v. Bank of Washington, 6 Pet. 8, 17 (1832) (“On the reversal of an erroneous judgment, the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost”). This was “a remedy well known at common law,” memorialized as “a part of the judgment of reversal which directed ‘that the defendant be restored to all things which he has lost on occasion of the judgment aforesaid.’ ” 2 Ruling Case Law §248, p. 297 (W. McKinney and B. Rich eds. 1914); Duncan v. Kirkpatrick, 13 Serg. & Rawle 292, 294 (Pa. 1825).

As both parties acknowledge, this practice carried over to criminal cases. When a conviction was reversed, defendants could recover fines and monetary penalties assessed as part of the conviction. Brief for Respondent 20–21, and n. 7; Reply Brief 7–8, 11; see, e.g., Annot., Right To Recover Back Fine or Penalty Paid in Criminal Proceeding, 26 A. L. R. 1523, 1532, §VI(a) (1923) (“When a judgment imposing a fine, which is paid, is vacated or reversed on appeal, the court may order restitution of the amount paid . . . ”); 25 C. J. §39, p. 1165 (W. Mack, W. Hale, & D. Kiser eds. 1921) (“Where a fine illegally imposed has been paid, on reversal of the judgment a writ of restitution may issue against the parties who received the fine”).

The rule regarding recovery, however, “even though general in its application, [was] not without exceptions.” Atlantic Coast Line R. Co. v. Florida, 295 U. S. 301, 309 (1935) (Cardozo, J.). The remedy was “equitable in origin and function,” and return of the money was “ ‘not of mere right,’ ” but “ ‘rest[ed] in the exercise of a sound discretion.’ ” Id., at 309, 310 (quoting Gould v. McFall, 118 Pa. 455, 456 (1888)). This was true in both civil and criminal cases. See, e.g., 25 C. J., at 1165 (noting that “restitution [of fines paid on a conviction later reversed] is not necessarily a matter of right”); Annot., 26 A. L. R., at 1532, §VI(a) (Restitution for fines upon reversal of a conviction “is not a matter of strict legal right, but rather one for the exercise of the court’s discretion”). The central question courts have asked is whether “the possessor will give offense to equity and good conscience if permitted to retain [the successful appellant’s money].” Atlantic Coast Line, supra, at 309.

This history supports the Court’s rejection of the Colorado Exoneration Act’s procedures. The Act places a heavy burden of proof on defendants, provides no opportunity for a refund for defendants (like Nelson) whose misdemeanor convictions are reversed, and excludes defendants whose convictions are reversed for reasons unrelated to innocence. Brief for Respondent 8, 35, n. 18. These stringent requirements all but guarantee that most defendants whose convictions are reversed have no realistic opportunity to prove they are deserving of refunds. Colorado has abandoned historical procedures that were more generous to successful appellants and incorporated a court’s case-specific equitable judgment. Instead, Colorado has adopted a system that is harsh, inflexible, and prevents most defendants whose convictions are reversed from demonstrating entitlement to a refund. Indeed, the Colorado General Assembly made financial projections based on the assumption that only one person every five years would qualify for a financial award under the Exoneration Act. Colorado Legislative Council Staff Fiscal Note, State and Local Revised Fiscal Impact, HB 13–1230, p. 2 (Apr. 22, 2013), online at (as last visited Apr. 17, 2017). Accordingly, the Exoneration Act does not satisfy due process requirements. See Cooper v. Oklahoma, 517 U. S. 348, 356 (1996) (A state rule of criminal procedure may violate due process where “a rule significantly more favorable to the defendant has had a long and consistent application”).


Although long-established practice supports the Court’s judgment, the Court rests its decision on different grounds. In its Mathews analysis, the Court reasons that the reversal of petitioners’ convictions restored the presumption of their innocence and that “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.” Ante, at 7. The implication of this brief statement is that under Mathews, reversal restores the defendant to the status quo ante, see ante, at 3. But the Court does not confront the obvious implications of this reasoning.

For example, if the status quo ante must be restored, why shouldn’t the defendant be compensated for all the adverse economic consequences of the wrongful conviction?[2] After all, in most cases, the fines and payments that a convicted defendant must pay to the court are minor in comparison to the losses that result from conviction and imprisonment, such as attorney’s fees, lost income, and damage to reputation. The Court cannot convincingly explain why Mathews’ amorphous balancing test stops short of requiring a full return to the status quo ante when a conviction is reversed. But Medina does.

The American legal system has long treated compensation for the economic consequences of a reversed conviction very differently from the refund of fines and other payments made by a defendant pursuant to a criminal judgment. Statutes providing compensation for time wrongfully spent in prison are a 20th-century innovation: By 1970, only the Federal Government and four States had passed such laws. King, Compensation of Persons Erroneously Confined by the State, 118 U. Pa. L. Rev. 1091, 1109 (1970); United States v. Keegan, 71 F. Supp. 623, 626 (SDNY 1947) (“[T]here seems to have been no legislation by our Government on this subject” until 1938). Many other jurisdictions have done so since, but under most such laws, compensation is not automatic. Instead, the defendant bears the burden of proving actual innocence (and, sometimes, more). King, supra, at 1110 (“The burden of proving innocence in the compensation proceeding has from the start been placed upon the claimant”); see also Kahn, Presumed Guilty Until Proven Innocent: The Burden of Proof in Wrongful Conviction Claims Under State Compensation Statutes, 44 U. Mich. J. L. Reform 123, 145 (2010) (Most U. S. compensation statutes “require that claimants prove their innocence either by a preponderance of the evidence or by clear and convincing evidence” (footnote omitted)). In construing the federal statute, courts have held that a compensation proceeding “is not . . . a criminal trial” and that the burden of proof can be placed on the petitioner. United States v. Brunner, 200 F. 2d 276, 279 (CA6 1952). As noted, Colorado and many other States have similar statutes designed narrowly to compensate those few persons who can demonstrate that they are truly innocent. The Court apparently acknowledges that these statutes pose no constitutional difficulty. That is the correct conclusion, but it is best justified by reference to history and tradition.


The Court’s disregard of historical practice is particu-larly damaging when it comes to the question of restitution. The Court flatly declares that the State is “obliged to refund . . . restitution” in just the same way as fees and court costs. Ante, at 1. This conclusion is not supported by historical practice, and it overlooks important differences between restitution, which is paid to the victims of an offense, and fines and other payments that are kept by the State.

Although restitution may be included in a criminal judgment, it has many attributes of a civil judgment in favor of the victim. This is clear under Colorado law. Although the obligation to pay restitution is included in the defendant’s sentence, restitution results in a final civil judgment against the defendant in favor of the State and the victim. Colo. Rev. Stat. §18–1.3–603(4)(a)(I) (2016). Entitlement to restitution need not be established beyond a reasonable doubt or in accordance with standard rules of evidence or criminal procedure. People v. Pagan, 165 P. 3d 724, 729 (Colo. App. 2006); Colo. Rev. Stat. §§18–1.3–603(2)–(3). And the judgment may be enforced either by the State or the victim. §§16–18.5–106(2), §§16–18.5–107(1)–(4).

The Court ignores the distinctive attributes of restitution, but they merit attention. Because a restitution order is much like a civil judgment, the reversal of the defendant’s criminal conviction does not necessarily undermine the basis for restitution. Suppose that a victim successfully sues a criminal defendant civilly and introduces the defendant’s criminal conviction on the underlying conduct as (potentially preclusive) evidence establishing an essential element of a civil claim. See, e.g., 2 K. Broun, McCormick on Evidence §298, 473–477 (7th ed. 2013) (discussing the admissibility, and potential preclusive effect, of a criminal conviction in subsequent civil litigation). And suppose that the defendant’s criminal conviction is later reversed for a trial error that did not (and could not) infect the later civil proceeding: for example, the admission of evidence barred by the exclusionary rule or a Confrontation Clause violation. It would be unprecedented to suggest that due process requires unwinding the civil judgment simply because it rests in part on a criminal conviction that has since been reversed. And a very similar scenario could unfold with respect to a Colorado restitution judgment. The only salient difference would be that, in the Colorado case, the civil judgment would have been obtained as part of the criminal proceeding itself. It is not clear (and the Court certainly does not explain) why that formal distinction should make a substantive difference.[3]

It is especially startling to insist that a State must provide a refund after enforcing a restitution judgment on the victims’ behalf in reliance on a final judgment that is then vacated on collateral review. Faced with this fact pattern, the Ninth Circuit declined to require reimbursement, reasoning that the Government was a mere “escrow agent” executing a then-valid final judgment in favor of a third party. United States v. Hayes, 385 F. 3d 1226, 1230 (2004).

The Court regrettably mentions none of this. Its treatment of restitution is not grounded in any historical analysis, and—save for a brief footnote, ante, at 2–3, n. 3—the Court does not account for the distinctive civil status of restitution under Colorado law (or the laws of the many other affected jurisdictions that provide this remedy to crime victims).

Nor does the Court consider how restitution’s unique characteristics might affect the balance that it strikes under Mathews. Ante, at 10. The Court summarily rejects the proposition that “ ‘equitable considerations’ ” might militate against a blanket rule requiring the refund of money paid as restitution, see ibid., but why is this so? What if the evidence amply establishes that the defendant injured the victims to whom restitution was paid but the defendant’s conviction is reversed on a ground that would be inapplicable in a civil suit? In that situation, is it true, as the Court proclaims, that the State would have “no interest” in withholding a refund? Would the Court reach that conclusion if state law mandated a refund from the recipients of the restitution? And if the States and the Federal Government are always required to foot the bill themselves, would that risk discourage them from seeking restitution—or at least from providing funds to victims until the conclusion of appellate review?

It was unnecessary for the Court to issue a sweeping pronouncement on restitution. But if the Court had to address this subject to dispose of these cases, it should have acknowledged that—at least in some circumstances—refunds of restitution payments made under later reversed judgments are not constitutionally required.

*  *  *

For these reasons, I concur only in the judgment.


1  In a footnote, the Court briefly opines on how a Medina analysis would come out in these cases. The Court’s discussion of the issue, which is dictum, is substantially incomplete. The Court suggests that Medina would support its judgment because the presumption of innocence is deeply rooted and fundamental. Ante, at 7, n. 9. It is true, of course, that this presumption is restored when a conviction is reversed. But that says very little about the question at hand: namely, what must happen once that presumption is restored. Notably, the Court cites not a single case applying the presumption of innocence in the refund context. At the same time, the Court ignores cases that bear directly on the question in these cases and thus must be part of a proper Medina inquiry. See infra, at this page and 4–5.
2  The Court’s position is also at odds with other principles of our procedural due process jurisprudence. It is well settled, for example, that a plaintiff who is deprived of property with inadequate process is not entitled to be compensated if the defendant can prove the deprivation “would have occurred even if [the plaintiff] had been given due process.” Thompson v. District of Columbia, 832 F. 3d 339, 346 (CADC 2016); see Carey v. Piphus, 435 U. S. 247, 260, 263 (1978) . This principle is in obvious tension with the Court’s holding.
3  The Court cites one intermediate appellate case for the proposition that when a conviction is reversed, any restitution order dependent on that conviction is simultaneously vacated. Ante, at 2–3, n. 3 (citing People v. Scearce, 87 P. 3d 228 (Colo. App. 2003)). Scearce did not discuss whether any payments had been made to victims or—if so—whether they would be recoverable from the State. More important, Scearce is hardly the last word on the question whether due process invariably requires the refund of restitution.
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