A decade or so ago, I asked students in an upper-level legal-philosophy seminar to write an essay on the following topic: Can we, as lawyers, live “good lives” (in the philosophical sense) when we earn our daily bread from a system devoted to controlling, confining, punishing, and even killing others with scant regard for their individuality or even their guilt or innocence?
The answer my students uniformly gave was yes. The system, they said, was livable because “we do our best” with limited funds and in the face of intractable social problems. The system sometimes fails, they said, but it strives for justice.
What’s interesting is that most of my students had, by that time in their studies, seen enough to know that answer is often not true. In their daily practice, lawyers continually recognize, and often exploit, the ways in which the legal system works against the poor and the outsider, to the advantage of the rich and powerful. In the system’s day-to-day workings, justice is not a goal of which the system falls short; it is, by and large, an irrelevance.
Yet in their hearts, many Americans, lawyer and non-lawyer alike, cling to the shining myth: Runnymede, Sir Thomas More, Atticus Finch, Gideon v. Wainwright, Archibald Cox.
But every now and then, like a hologram in a science-fiction TV show, the myth flickers and fades, revealing ugly truth below the myth: an organized racket by which those on top corral and shear the sheep on the bottom, depriving them of liberty, property, and even life after a mockery of due process and by criteria so arbitrary as to be indistinguishable from whim.
Consider the case the Supreme Court will hear Monday. Nelson v. Colorado poses the following question: Suppose you are arrested, charged with a serious crime, and convicted. The court sentences you to prison and orders you to pay various fees and restitution—seemingly small amounts that are, given your economic circumstances, daunting nonetheless.
Then, against the odds, you persuade a higher court that the evidence against you was insufficient or improperly admitted. Your conviction is overturned. You are free to go.
Can the state keep the money it seized from you on the grounds that you’re probably guilty anyway?
That in essence is the claim advanced by the state of Colorado in defense of its uniquely punitive system of criminal fines and fees. Most states have increasingly turned to forcing criminal defendants to pay the costs of their own prosecution. But only Colorado has decided it can keep defendants’ money even when their convictions are set aside.
The petitioners in the case are Shannon Nelson and Louis Alonzo Madden. Nelson was convicted of five counts of sexual abuse allegedly directed at her children. A state appeals court reversed her conviction, however; it said that the trial judge had allowed improper “expert” testimony that tainted the jury’s verdict. After the appeal, the state brought Nelson to trial again. That time, a jury acquitted her of all charges.
Madden was convicted of attempting to patronize a child prostitute and attempted sexual assault. On appeal, a state court set aside the child-prostitution conviction and affirmed the assault count; then a state trial judge decided that Madden’s lawyer had been ineffective and therefore vacated the assault conviction as well. The state chose not to try Madden again.
Both defendants had paid a fee to the state crime victim compensation fund, a “docket fee,” a “time payment fee,” a drug-test fee, and other fees, as well as restitution payments to the victims of the crimes. After their cases ended, each asked for repayment of the sums they had paid. Madden got back his fees, but the court refused to repay the restitution. A different trial court told Nelson she was entitled to nothing.
A state appeals court ordered the money repaid, but the Colorado Supreme Court reversed that decision. Though many other state’ laws permit courts to order similar refunds as a kind of inherent judicial power, the Colorado court decided that the two could only obtain repayment under the terms of a 2013 statute called the Colorado “Exoneration Act.”
That statute was plainly designed to pay money to anyone wrongly convicted of crime and held for years in prison. If such a person can produce “clear and convincing evidence” that he or she was innocent, then the court can award a hefty payment—as much as $120,000 a year in capital cases—for each year wrongly served. That money is not repayment; it is an independent payment for the wrong done to the convicted person.
But of course, Nelson and Madden weren’t seeking payment, and, more important, they hadn’t proved they were “innocent.” They hadn’t tried to; they aren’t required to under the American system. (Runnymede, Finch, Gideon—remember?). The state always has the burden to prove guilt beyond a reasonable doubt, and this it had, in both cases, been unable to do. Nonetheless, the state supreme court held, the state was entitled to the money.
It’s hard to see why, if you go by, you know, the law and the Constitution—there is no legal crime for which either owed fines or restitution. Nonetheless, the court said, Nelson and Madden were out of luck unless they could prove their innocence.
Nelson and Madden have one fairly compelling argument, as pithily phrased in their petition: “It is not Colorado’s money.” That ought to appeal to the Court, coupled with the fact that the Colorado system seems to be unique. Most states charge the “fees” and order restitution, but readily refund the payments if a conviction is found invalid.
Colorado’s brief to the Supreme Court is so truculent, so full of Margaret Dumont-style faux outrage, that a reader might suspect the state has no case. In their first argument, the state’s lawyers rewrite the petitioners’ claim, suggesting they are grifters trying to create out of thin air a brand-new right to an “automatic money judgment” when convictions are set aside. This is too clever by half. The petitioners aren’t seeking a payment as compensation for being convicted; they just want their own money back.
The state’s second argument rewrites the existing law. The brief cites venerable cases suggesting that defendants don’t necessarily get repayment of fines even after a court strikes down the statute they were convicted under. Those cases, however, might be called “Inigo Montoya cases”—that is, they do not mean what Colorado thinks they mean. In most of them, the defendants had either (1) admitted guilt or (2) voluntarily chosen to pay a fine and plead guilty in order to avoid jail. Neither of those is true in this case; the defendants have consistently pleaded not guilty, and neither agreed to the “fees” and restitution or received any leniency for paying them. The fees and restitution were part of a criminal sentence.
In fact, Colorado’s main argument seems to be written between the lines. May it please the Court, their brief whispers, these two may have escaped justice on a technicality, but we all know they are guilty as hell. In its recital of the facts, the state lingers over each stage of the proceedings—these sure were bad crimes, weren’t they? The trial court found probable cause, didn’t it? There were “forensic interviews,” weren’t there? The victims testified, didn’t they? A jury convicted them, didn’t it?
Come on, it seems to be saying. We all know that if these people are so all-fired pure, the police would never have arrested them.
It’s thoroughly unappealing advocacy, and one hopes it will not sway four of the eight (if the Court deadlocks, the Colorado state court decision will stand). As I said above, Colorado is the only state with the gall to demand money from defendants whose convictions are reversed. The Court can easily reverse this grotesque decision without disruption of the system nationwide—and we can all go back to our shining dream of justice.