« Latest Issue of the Harvard Journal of Law and Public Policy
Michael Ramsey
| Main | Ryan Scoville on Renegotiating NAFTA
Michael Ramsey »


Why Justice Thomas Was Correct in Nelson v. Colorado
Andrew Hyman

This was a Fourteenth Amendment due process case, and co-blogger Michael Ramsey blogged about it here in January and again in April.  I disagree with Mike about it, and would like to briefly say why.  

SCOTUSblog has background information about the case here.  It was decided  by SCOTUS on April 19 in an opinion by Justice Ginsburg, by a vote of 7-1, with Justice Alito concurring only in the judgment, and Justice Thomas dissenting (Justice Gorsuch did not participate).

Basically, the case was about a Colorado “Exoneration Act” that allowed convicted criminals to be compensated by the state if their convictions are later overturned (e.g. the Act offered compensation for restitution already paid to the victims plus $70,000 per year of wrongful imprisonment), provided the exoneration did not result only from insufficient evidence or from a legal error unrelated to innocence. Neither of the petitioners in this case attempted to get compensation via the Exoneration Act, and instead they sued to have that Act declared unconstitutional without giving the Colorado courts a chance to find in their favor under the Act.

Justice Ginsburg suggested a reason why the petitioners did not try to get relief under the Exoneration Act: “A successful petitioner under the Exoneration Act can recover reasonable attorney’s fees, §13–65–103(2)(e)(IV), but neither a defendant nor counsel is likely to assume the risk of loss when amounts to be gained are not worth the candle.”  Ginsburg noted that the Exoneration Act offered $70,000 for each year of imprisonment, but omitted that the petitioners, Shannon Nelson and Louis Alonzo Madden, were imprisoned for four years and two years, respectively, so there was a substantial pot of money potentially available under the Exoneration Act. 

I agree with Sherry Colb: “If the money Nelson seeks is indeed compensation, then it is no different in substance from the compensation that she might seek for her incarceration. And if the latter is not available to her as a matter of right under the Due Process Clause, then neither should the former be.”  Colb goes on to say that they are different, but I don’t buy it.

In this case, the restitution money was apparently given to the victims upon conviction.  Ginsburg’s opinion glossed over key issues such as whether the state had power to give that restitution money to the victims upon conviction in the first place, and if so whether the state should have subsequently retrieved that restitution money from the victims upon exoneration despite the property rights of the victims.  Justice Ginsburg apparently thinks Colorado taxpayers must fork over the money to give to the exonerated petitioners.  Ginsburg did not dispute that the victims had in fact been victimized (e.g. by persons other than those accused).  In my opinion, if federal judges are going to decide what the law should be instead of what the law is, then they should at least forthrightly discuss the factors that are relevant from a moral perspective.  And, make no mistake, this was an opinion about what the law should be: the Court acknowledged that the petitioners did not initially prevail at trial, but said that that fact “should be inconsequential....[T]o get their money back, defendants should not be saddled with any proof burden” (emphasis added).    Should should should.

Let’s suppose (as seems to be true in this case) that the restitution money became property of the victims upon valid receipt by the victims, and the legislature decided that taxpayers should not have to foot the bill for compensating the exonerated petitioners unless the petitioners succeed under the Exoneration Act.  One can argue that legislators "deprive" people of property whenever they decide not to give out taxpayer money, but I would have to see a much stronger case for it than this one.  A much better approach than the one taken by SCOTUS in this case would have been to remand to the Colorado Supreme Court for determination of whether the petitioners retained a property interest (i.e. a right to an automatic refund)  even after exoneration, as Justice Thomas suggested.  After all, such a property interest is prerequisite to any constitutional due process requirement.  Thomas was also correct to mention in a footnote that the word “due” in the Due Process Clause may well mean “owed according to the law of the land” (as the framers of at least the Fifth Amendment clearly meant and intended) rather than owed according to whatever a majority of SCOTUS happens to want.

My friend Mike Ramsey wrote, “I would think an originalist would say that the due process clause locked in traditional common law protections for traditional property, and material departures are per se unconstitutional.”  This assertion does not distinguish between traditional procedures under common law versus traditional substantive rights under common law, and therefore is vastly overbroad.  Even as to procedure alone, the common law was crystal clear that the word “law” in the phrase “due process of law” does not merely refer to common law but also to statutory law: "lex terrae is not confined to the common law….”

I see no more need under the Due Process Clause to compensate for the restitution money than to compensate for the imprisonment, and the Exoneration Act potentially offered both, if only the petitioners in this case had exhausted their remedies in state court.  Mike writes, “Under traditional common law principles, I assume that the government could not take property pursuant to an invalid conviction.”  But the government takes liberty pursuant to an invalid conviction all the time, between trial and appeal, often without any subsequent compensation of the kind offered by Colorado.  In this case, the state’s denial of compensation for both the deprivation of liberty and for the deprivation of property were ongoing after the exoneration, so I do not remotely see why SCOTUS thinks it has any authority to rid the world of one denial but not the other denial under the Due Process Clause (which addresses both liberty and property on equal terms).  There may be other constitutional clauses that justify the result in this case, and there may be ways to make the Exoneration Act fairer, but I very much oppose using the Due Process Clause as a catch-all replacement for legitimate constitutional argumentation and for legitimate democratic self-governance; my opposition on that score applies to both momentous matters and trivial ones alike. 

This was a classic case of the judiciary saying what they think the law should be instead of what the law is.  I will even take it a step further, and say that if I had authority over the U.S. Marshals Service, I would probably decline to take any enforcement action in this case, and instead would leave it up to the state authorities, given that federal executive branch authorities take an oath to the Constitution rather than to another branch's clearly erroneous or extremely doubtful interpretations of that document.  At some point, the Court ought to meet resistance in construing "due process" to mean whatever it wants.  So sue me.