May 17, 2017
“Guilty Enough”: The Supreme Court Reinforces the Presumption of Innocence
Imagine that you are charged with a crime, convicted, and sentenced to a term of incarceration and the payment of court costs, fines, and restitution. Let’s say that your conviction subsequently is reversed on appeal and you are retried and acquitted by a second jury. Upon your acquittal, the court costs, fines, and restitution payments you made pursuant to your earlier sentence were refunded immediately. However, you are required to remain in prison unless and until you successfully petition the court for your release—a process requiring you to show by clear and convincing evidence that you are, in fact, factually innocent of the crime for which you already have been acquitted.
Most would agree that the state process requiring you—after you already were acquitted of your criminal charges at trial—to prove your innocence in order to secure your release from prison would be a clear violation of due process. But what if the hypothetical differed in one material respect? Instead of remaining incarcerated after your acquittal on retrial, you are released immediately, but the court costs, fines, and restitution payments you had made are not refunded unless and until you petition the court and prove your innocence by clear and convincing evidence. Would this comport with the Due Process Clause? This was the question confronting the U.S. Supreme Court in Nelson v. Colorado,1 decided April 19, 2017.
In Nelson, the U.S. Supreme Court reinforced the presumption of innocence, holding that the Due Process Clause prohibited Colorado’s practice of requiring individuals whose criminal convictions were overturned on appeal (and who were either later acquitted on retrial or not prosecuted further) to petition the court and make a showing of actual innocence in order to recoup court costs, fines, and restitution payments previously made as a result of the invalidated conviction.
The petitioners in Nelson had their Colorado state criminal convictions overturned on appeal or collateral review. When they sought the refund of court costs, fees, and restitution payments previously collected by the state in connection with those invalidated convictions, the state courts concluded that the state’s Exoneration Act, which required a defendant to prove by clear and convincing evidence that he or she was actually innocent of the charged offense, was the sole remedy for the recoupment of payments. The petitioners challenged Colorado’s Exoneration Act on due process grounds.
Writing for the majority, Justice Ginsburg established that the procedural due process test set forth in Mathews v. Eldridge2 was applicable in these circumstances. Under the three-pronged Mathews test, courts are to balance: (1) the private interests impacted by the state procedure; (2) the risk that the private interest will be erroneously deprived by the state procedure; and (3) the governmental interest at stake.3
In Medina v. California,4 however, the Court had illuminated an alternative test for procedural due process, which queries whether a state criminal procedural rule offended a fundamental principle of justice.5 The Medina test, Justice Ginsburg explained, was inapposite because the cases before the Court in Nelson dealt not with the criminal process itself, but rather with “the continuing deprivation of property after a conviction has been reversed or vacated, with no prospect of reprosecution.”6
Applying the Mathews balancing test, Justice Ginsburg concluded that the requirements of Colorado’s Exoneration Act, as applied to petitioners, worked a clear violation of procedural due process.7 Justice Ginsburg noted that the petitioners had an “obvious interest in regaining the money they paid to Colorado,” satisfying the first prong of the Mathews test.8 As to the second prong, Justice Ginsburg explained that Colorado’s requirement that petitioners prove their innocence by clear and convincing evidence creates a risk of the erroneous deprivation of their interest in their refund.9 Finally, Justice Ginsburg concluded, the third prong was satisfied because Colorado could articulate no legitimate state interest in withholding the petitioners’ funds once their convictions were overturned and the presumption of interest reattached.10
In a lengthy opinion concurring only in the judgment, Justice Alito made clear that, although he would have arrived at the same basic result, he believed the Court applied the incorrect procedural due process test.11 According to Justice Alito, the Medina test, which applies to state rules of criminal procedure, was appropriate because the presumption of innocence is a bedrock criminal law principle and any refund of the monies previously taken from the petitioners would be part of the criminal process itself.12 Alito argued that, although both tests doomed this application of Colorado’s Exoneration Act, the Medina test more appropriate cabins the relief available to a defendant whose conviction is overturned.13 Justice Alito also took exception to what he thought was the majority’s failure to recognize the distinctive features of restitution, the refund of which, he wrote, is not necessarily constitutionally required in these circumstances.14
Justice Thomas dissented, arguing that neither the majority’s application of the Mathews framework nor Justice Alito’s embrace of Medina is correct.15 Instead, Justice Thomas argued, the Court should have first determined whether petitioners, in fact, had a substantive right to the refund of the costs and fees—an inquiry, he asserted, that rests on whether petitioners “have been deprived of a protected property interest.”16 Justice Thomas’s conclusion that petitioners did not have a property interest in the funds, was, in his estimation, fatal to their claims because, as he argued, “the Due Process Clause confers no substantive rights.”17
In Nelson, the Supreme Court instructs that “[t]o comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.”18 This essentially means that, while you likely can be required to submit an administrative form requesting refund of your prior conviction-related payments, you cannot be required to make any material showing that you are factually innocent of the offense associated with the payments being assessed in the first place.
This holding certainly makes sense on both practical and constitutional grounds, and reminds us that the presumption of innocence deserves continued respect. To be sure, there are burdens associated with being charged, even though one enjoys the presumption of innocence. One can be subjected to pre-trial detention, for example.19 Even if one is not incarcerated before trial, there are ways in which liberty is burdened, including conditions placed on pre-trial release that may restrict freedom of movement or association, or require regular meetings with a pre-trial or probation officer and periodic testing for substance abuse.20 In addition, the government may even seize the assets of a criminal defendant despite the presumption of innocence.21 When there has been an overturned conviction followed by an acquittal or a dismissal without reprosecution, however, it violates the Constitution to require a defendant to prove his or her innocence in order to recoup financial payments made pursuant to the vacated conviction.
Although the central question in Nelson focused on the presumption of innocence, as mentioned above, the case also resolved which procedural due process test applies to claims of this nature. The application of Mathews rather than Medina could be relevant in future cases involving exonerees. Indeed, those persuaded by Justice Alito’s thinking in the case might wonder whether, if the Mathews test applies and restores those like the petitioners in Nelson to the status quo ante, future exonerees might seek other costs incurred in the course of a criminal case—such as attorney’s fees, or lost wages? Another interesting aspect of the case is that it illuminates the issue of “criminal justice debt”—a topic that has received increased attention in recent years.22 Criminal justice debt, which includes court costs, fees, and restitution among other types of payments, often works a tremendous hardship upon those least able to pay, and can lead to individuals serving longer terms of incarceration than they would if they had the financial means.23
As Justice Ginsburg wrote, “once [the petitioners’] convictions were erased, the presumption of their innocence was restored.”24 If one accepts that premise, it does not require a tremendous leap to conclude that, in addition to release from any custody, the petitioners also were entitled to a refund of any monies paid pursuant to the punishment imposed as a result of the invalid conviction. Either you’re innocent, or you’re not; there is no such thing as guilty enough.25 Although the presumption of innocence can be made to give way to certain burdens prior to trial, after an acquittal or dismissal following the vacation of a conviction, there should be no residual burden associated with the former charges. The presumption of innocence, already strong in our criminal justice system,26 became a little stronger after Nelson v. Colorado.
Roger Fairfax is the Senior Associate Dean for Academic Affairs and Professor of Law at The George Washington University Law School, where he teaches courses in criminal law, constitutional and adjudicatory criminal procedure, criminal litigation, and seminars on the grand jury, white-collar criminal investigations, and criminal justice policy. His research focuses on the criminal process, the grand jury, prosecutorial ethics, and criminal justice policy and reform. Previously he served as a federal prosecutor in the Public Integrity Section of the Criminal Division of the U.S. Department of Justice, as Special Assistant U.S. Attorney in the Eastern District of Virginia, as special assistant to the Assistant Attorney General for the Criminal Division of DOJ, and was a Counsel in the Washington, D.C. office of O’Melveny & Myers LLP.
- No. 15-1256, slip op. (U.S. Apr. 19, 2017).
- 424 U.S. 319 (1976).
- See id. at 335.
- 505 U.S. 437 (1992).
- Nelson, slip op. at 5 (citing Medina, 505 U.S. at 443).
- Id. at 6.
- See id. at 10.
- Id. at 6.
- See id. at 8–10.
- See id. at 10.
- See id. at 1–2 (Alito, J., concurring in the judgment).
- See id. at 1–2.
- See id. at 6–7.
- See id. at 7–10.
- See id. at 1 (Thomas, J., dissenting).
- See id. at 3 (citing Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)).
- See id. at 5 (citing McDonald v. Chicago, 561 U.S. 742, 811 (2010) (Thomas, J., concurring in part and concurring in judgment)).
- See id. at 10 (majority opinion).
- See Bell v. Wolfish, 441 U.S. 520 (1979); see also 18 U.S.C. § 3141; United States v. Salerno, 481 U.S. 739 (1987).
- See, e.g., Roger A. Fairfax, Jr., ed., Adjudicatory Criminal Procedure: Cases, Statutes, and Materials (Foundation Press 2017).
- See, e.g., Kaley v. United States, 134 S. Ct. 1090 (2014).
- See, e.g., Nicholas Kristoff, Opinion, Is it a Crime to be Poor?, N.Y. Times (June 11, 2016), https://www.nytimes.com/2016/06/12/opinion/sunday/is-it-a-crime-to-be-poor.html?_r=0.
- See, e.g., Neil L. Sobol, Charging the Poor, Criminal Justice Debt and Modern Day Debtors’ Prisons, 75 Md. L. Rev. 486 (2016); Harvard Law School Criminal Justice Policy Program, Confronting Criminal Justice Debt: A Guide for Policy Reform (Sept. 2016), http://cjpp.law.harvard.edu/assets/Confronting-Crim-Justice-Debt-Guide-to-Policy-Reform-FINAL.pdf (last visited May 17, 2017).
- Nelson, slip op. at 6.
- See id. at 7 (“Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”).
- See, e.g., Coffin v. United States, 156 U.S. 432, 453 (1895) (presumption of innocence “lies at the foundation of the administration of our criminal law.”); William F. Fox, Jr., The “Presumption of Innocence” as Constitutional Doctrine, 28 Cath. U. L. Rev. 263 (1979). But see Kentucky v. Whorton, 441 U.S. 786, 789 (1979) (presumption of innocence instruction not mandated by the Constitution).
Recommended Citation Roger Fairfax, Response, “Guilty Enough”: The Supreme Court Reinforces the Presumption of Innocence, Geo. Wash. L. Rev. On the Docket (May 17, 2017), http://www.gwlr.org/guilty-enough-the-supreme-court-reinforces-the-presumption-of-innocence/.