Supreme Court considers if exonerated people can be charged the same fines and fees as the guilty

Being exonerated doesn’t mean what it used to, at least in Colorado.

The Notorious RBG is not amused. (CREDIT: AP PHOTO/MICHAEL DWYER)
The Notorious RBG is not amused. (CREDIT: AP PHOTO/MICHAEL DWYER)

Imagine that you are hauled into court for a crime you did not commit, convicted, then forced to turn over a fortune in fines, fees and court costs as a result. Then, after an appeals court throws out your conviction and the charges against you are dropped, you are told that you aren’t allowed to have your money back — even though the state’s only basis for taking that money from you was an invalid trial judgment.

In most states, this wouldn’t happen. Yet, under the Colorado Supreme Court’s 2015 decision in People v. Nelson, an exonerated defendant who seeks to recover money that was unlawfully taken from him due to an illegal conviction is out of luck. Though the facts of Nelson are somewhat less stark than the hypothetical scenario described above, its sweeping holding would potentially allow the state to collect thousands or even millions of dollars worth of fines and fees from someone convicted of a crime, and then refuse to give it back after that person is exonerated.

“Due process does not require a defendant to be compensated automatically for the time she spent incarcerated while seeking an appeal or new trial,” Chief Justice Nancy Rice wrote for her court. “Similarly, due process does not require an automatic refund of fines paid in connection with a conviction during that time.”

If the Supreme Court permits such a result, the consequences could be catastrophic for residents of communities like Ferguson, Missouri, where courts use snowballing fines and fees to fund local government, often immiserating low-income residents in the process.

This decision — along with a similar, consolidated case — is now before the Supreme Court of the United States in Nelson v. Colorado.


Both cases involve individuals who were convicted of crimes and then later exonerated. Shannon Nelson was convicted of sexual assault based, in part, on the testimony of a witness who was not property qualified as an expert. After an appeals court threw out her conviction, Nelson was retried and acquitted. Similarly, Louis Alonzo Madden was convicted of sex crimes, but his convictions were thrown out and prosecutors decided not to retry the case.

Nelson and Madden were both hit by a complicated mix of fees, surcharges, and other costs intended to fund the court system, pay for various programs, and provide restitution to their alleged victims. By the time they were exonerated, Nelson had paid $702.10 of these charges and Madden had paid $1,977.75. Now, they want their money back.

According to their attorneys, getting that money back wouldn’t be a problem if they lived in any other state. “Colorado appears to be the only state that does not refund this money when a conviction is reversed,” according to Nelson and Madden’s brief.

Just a few years ago, it is likely that Colorado law would have allowed the two exonerees to be reimbursed. In the Colorado Supreme Court’s 1961 decision in Toland v. Strohl, the court ordered that “the parties be placed in status quo by refund to the defendant of the sums paid as fine and costs” after his conviction was reversed. In 2013, however, Colorado enacted its Exoneration Act. As Nelson and Madden’s attorneys explain in their brief, this law was intended to provide extraordinary compensation (as much as $120,000 per year of incarceration) to certain rare individuals who are imprisoned and then not simply exonerated, but determined to be actually innocent. To obtain this relief, however, a person convicted of a crime must prove, by “clear and convincing evidence,” that they are innocent.

Thus, the Exoneration Act does not apply to people who have their convictions thrown out because the state lacked sufficient evidence to convict them. Unlike in a criminal trial, where the state must prove a defendant’s guilt beyond a reasonable doubt, the Exoneration Act only provides relief to people who can affirmatively prove their own innocence — and who can overcome a high burden of proof in the process.


It is very rare that a defendant can meet this very high burden, which essentially requires them to prove a negative. According to Nelson and Madden’s brief, the state legislature “projected that compensation under the Act would be awarded to only one defendant every five years.”

It is unlikely that the state legislature intended for this rarely invoked law to be the only source of relief available to exonerates hit by fines or fees. Nevertheless, in its Nelson opinion, the Colorado Supreme Court held that Toland no longer applies to people like Nelson and Madden. If they can’t obtain relief under the Exoneration Act, they are out of luck.

This is an especially harsh result because of the relatively small amounts of money at stake in their cases. The $702.10 Nelson seeks and the $1,977.75 Madden seeks are hardly chump change, but they are far less than a lawyer would charge to bring a case on either exonerees’ behalf. As Colorado Justice William Hood explained in a dissenting opinion, “defendants with meritorious claims paying hourly rates could find themselves throwing good money after bad, while the relatively low amounts available will likely prevent most defendants from retaining counsel on a contingency basis.”

Perhaps because Colorado’s refusal to reimburse people like Nelson and Madden is so unusual, there is no Supreme Court precedent that speaks directly to this problem — although several lower courts have sided with exonerees in similar circumstances. The closest analogy in the high Court’s own precedents is tax cases establishing that “the Due Process Clause requires the State to afford taxpayers a meaningful opportunity to secure postpayment relief for taxes already paid pursuant to a tax scheme ultimately found unconstitutional.”

There are marginal issues within Nelson that do present difficult legal questions. A portion of the money Nelson and Madden paid, for example, was used as restitution for their alleged victims. Under Colorado law, moreover, an order of restitution is considered a civil (not a criminal) order.


Defendants in civil cases do not enjoy the same very high “beyond a reasonable doubt” standard that protects criminal defendants, so it is possible for someone to be found not guilty of a criminal charge and then still held liable to their alleged victim in a civil proceeding — just ask O.J. Simpson. Perhaps Colorado could defend its practice of issuing a criminal sentence and a civil restitution order simultaneously in the same proceeding. Although, even in this circumstance, it’s far from clear why the civil restitution order wasn’t vacated by Nelson and Madden’s exoneration.

But the Colorado Supreme Court’s decision sweeps well past these marginal issues. If “due process does not require an automatic refund of fines paid in connection with a conviction” while their case was on appeal, then there could be many circumstances where a person is exonerated and receives very little, if any, relief from the court’s order dissolving their conviction.

Imagine, for example, a criminal defendant who is ordered to pay a $10,000 fine in addition to a relatively brief prison sentence. Under the Colorado Supreme Court’s rule, so long as the defendant pays this fine in full before their conviction is overruled on appeal, the state is under no constitutional obligation to give the money back.

Moreover, if this defendant had already served their full prison sentence before their successful appeal is decided, a court order exonerating them would leave them in virtually the same position they would have been in even if their conviction remained in place. They are already free from prison. They can’t recover the money they lost unless they can clear the very high bar set by the Exoneration Act. At most, they can try to put their life back together with a newly cleared record.

Meanwhile, the state would receive a $10,000 windfall because it obtained an unlawful conviction that was later tossed out by an appeals court.

If the Supreme Court permits such a result, the consequences could be catastrophic for residents of communities like Ferguson, Missouri, where courts use snowballing fines and fees to fund local government, often immiserating low-income residents in the process.

Under the Colorado Supreme Court’s rule in Nelson, a person hit with such fines and fees could be exonerated of the crime that allowed the state to take their money in the first place, and yet be left unable to recover the money that was unlawfully taken from them.