In most states, people convicted of crimes pay fines, restitution, court costs and other fees. Most states will refund this money should the criminal conviction be reversed. Colorado does not.


Under Colorado law, a formerly convicted person can get his or her money back by filing a separate civil action in which they must prove by clear and convincing evidence that they are innocent of the crime for which they were convicted.


Depriving People of Property Without Due Process


Does this practice violate the prohibition of the Fourteenth Amendment to the U.S. Constitution that a State cannot “deprive any person of life, liberty, or property, without due process of law?”


There is a traditional rule of law long recognized by the U.S. Supreme Court that a party is entitled to a refund of any money paid pursuant to a judgment if that judgment is reversed.


According to a brief prepared by a group of prominent attorneys and filed with the court in the case of Nelson and Madden v. Colorado, the State of Colorado followed this traditional rule until 2013 when its enacted an exoneration act titled “Compensation for Certain Exonerated Persons.”


Distinction Between Compensation for Exoneration and Refund for Wrongful Conviction


The purpose of the exoneration act is to provide compensation in a narrow range of cases in which a convicted individual establishes actual innocence of the crime for which he or she was convicted. At the time the exoneration act was enacted, the federal government and 27 states had laws on the books providing for compensation to wrongfully convicted persons.


Compensation for Exoneration of Actually Innocent


Colorado lawmakers wanted to make sure only “actually innocent” individuals could be compensated. Individuals acquitted following a jury trial or who had their convictions reversed on appeal because of a procedural or constitutional error are not eligible for compensation under the exoneration act.


And this is where the apple begins to spoil. As the petitioners’ brief points out:


“To recover under the Exoneration Act, a defendant must file a civil action and prove, by clear and convincing evidence, that he or she is ‘actually innocent’ of the crime. The Act specifies that the ‘court may not reach a finding of actual innocence to this section merely … [b]ecause the court finds the evidence legally insufficient to support the petitioner’s conviction.’ Nor may the court reach a finding of actual innocence merely ‘[b]ecause the court reversed or vacated the petitioner’s conviction because of a legal error unrelated to the petitioner’s actual innocence.’ Nor may the court reach a finding of actual innocence merely ‘[o]n the basis of uncorroborated witness recantation alone.’ Rather, a finding of actual innocence may be based on the petitioner’s presentation of ‘reliable evidence that he or she was factually innocent of any participation of the crime at issue.”


Colorado’s exoneration act is similar to a federal law that requires an individual seeking monetary damages from an unjust conviction and imprisonment to secure a “certificate of innocence” from the court in which the conviction was had. This law protects only truly innocent individuals who are prosecuted for no fault of their own. In effect, a not guilty verdict, or an acquittal following a retrial after the reversal, in a criminal case does not mean actual innocence.


Two Step Process for Recovery of Damages


Colorado’s exoneration act also requires, according to petitioners’ brief, that a wrongfully convicted individual satisfy a two-step criteria before he or she can seek recovery under the act:


“First, a court must have vacated or reversed all convictions in the case based on either ‘reasons other than legal insufficiency of evidence.’ That is, if the ground for vacatur or reversal is insufficiency of evidence or some other error related to the defendant’s actual innocence, the defendant is, paradoxically, not eligible to a petition under the Exoneration Act. Second, there must be no prospect of further prosecution. There must be either ‘an order of dismissal of all charges’ or ‘acquittal of all charges after retrial.’”


In effect, the State enjoys broad authority to initiate a criminal prosecution with only the barest of circumstantial evidence (and will often engage in egregious prosecutorial misconduct to secure a conviction) while a wrongfully convicted individual (whose conviction is oftentimes the result of prosecutorial misconduct) must overcome a string of nearly insurmountable hurdles through clear and convincing evidence under Colorado’s exoneration act before he or she can be compensated for the wrong done of them by the State.


Compensation for Nature of Conviction and Length of Incarceration


If an individual surmounts these hurdles of the exoneration act, he or she is entitled to a graduated scale of compensation depending upon the nature of conviction. With respect to monetary damages associated with a conviction, the exoneration act provides that a wrongfully convicted individual is entitled to recover “the amount of any fine, penalty, court costs, or restitution imposed and paid by the exonerated person as a result of his or her conviction.”


Refund of Fines, Fees and Restitution


The Supreme Court will surely address the issue of whether the exoneration act was intended to be independent from the traditional rule to refund money paid to a reversed judgment, that is, the act simply created new rights for exonerated individuals; or whether lawmakers specifically intended for the act to abrogate the traditional rule.


Cases Reversed on Appeal


The two defendants in this case were convicted of sexual assault-related offenses: Louis Madden was convicted of attempt to patronize a child prostitute while Shannon Nelson was convicted of sexual assault offenses against her children. Both defendants were assessed significant penalties, fees, and restitution orders associated with their convictions. Nelson’s conviction was reversed on direct appeal and she was acquitted following a retrial. Madden’s convictions were also reversed on direct appeal and in post-conviction proceedings. The State elected not to retry him.


Sought Refund of Penalties and Fees Paid


Both defendants sought a refund of the money paid to the State pursuant to the penalties, fees, and restitution orders assessed against them. After their cases worked their way through the state appellate system, the Colorado Supreme Court held that neither the exoneration act nor due process of law allowed the defendants to secure a refund from the State absent a showing of actual innocence.


The essential issue the Supreme Court must reconcile is whether due process accommodates a recovery system that places the burden on the individual to prove their actual innocence by clear and convincing evidence in order to recover refund of fines and penalties paid from a reversed judgment. This burden also entails a responsibility of the individual to hire his or her own attorney to pursue recovery which, more often than not, will cost more than the actual monetary damages paid pursuant to their conviction.


Attorneys for the petitioners argue that the Due Process Clause places an absolute burden of proof guilt on the State of Colorado if it wishes to keep the monetary damages paid pursuant to a reversed judgment.


We agree. An individual should never carry the burden of proving innocence when squaring off against the State in any criminal proceeding. Due process demands that the burden of proving guilt rests exclusively with the State at all times. We hope the Supreme Court will see it the same way.