Still presumed guilty after exoneration

calvin-hobbes-christmasCalvin, from Calvin and Hobbes, wrote a letter to Santa one year: “Dear Santa, this year, please bear in mind that I should be presumed innocent until proven guilty. Also, I would encourage you to interpret ‘reasonable doubt’ as broadly as possible.” The Supreme Court should issue Colorado a similar reminder.

Colorado has a peculiar way of treating former convicts after they’re exonerated. When someone is convicted of a crime, they pay various fines and fees–victim restitution, law enforcement funds, court costs, and so on. Those payments are predicated on a valid conviction. Once the conviction is overturned, Colorado has lost any right to that money. But, under the state’s Exoneration Act, Colorado keeps that money unless the exoneree proves by clear and convincing evidence that they didn’t commit the crime that the state already cleared them of. Even if the state failed to prove guilt beyond a reasonable doubt, the exoneree still faces the daunting task of proving a negative: that they’re in fact innocent. As Calvin aptly noted, the burden of proof often means everything.

Shannon Nelson, an exoneree who wants her money back, challenged this procedure as a violation of her right to due process of law. The lower courts agreed that she had a right to that money without having to prove her own innocence. The Supreme Court of Colorado, however, held that this presumed-guilty approach satisfies due process. The U.S. Supreme Court, thankfully, has agreed to address this issue.

PLF has filed an amicus brief to support Ms. Nelson. We focus on two elements of the requirement that a state can’t deprive exonerees of property without “due process of law”: the “law” part and the “process” part. “Due process” demands that only a “law” can deprive you of property. A law must be more than arbitrary whim. Yet here, once the conviction is gone, the state has no good reason to keep her money. It’s no better than the “because-I-say-so” battlecry of an exasperated parent. Nor does the procedure for obtaining a refund make this less arbitrary. Plunder is not absolved of its unlawful character by offering back the stolen property if the owner can prove they deserve it.

But let’s not forget the “process” side of “due process of law.” Even if the state can put some procedure in place for receiving a refund, it needs to be a reasonable and fair one. Requiring someone to prove their innocence to get back what is theirs doesn’t satisfy that threshold. The presumption of innocence ought to apply to your property as surely as it does to your liberty. I imagine Calvin would agree.