(Slip Opinion) OCTOBER TERM, 2016 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

NELSON v. COLORADO 

CERTIORARI TO THE COLORADO SUPREME COURT 

No. 15–1256. Argued January 9, 2017—Decided April 19, 2017* 

Petitioner Shannon Nelson was convicted by a Colorado jury of two 

felonies and three misdemeanors arising from the alleged sexual and 

physical abuse of her four children. The trial court imposed a prison

term of 20 years to life and ordered her to pay $8,192.50 in court 

costs, fees, and restitution. On appeal, Nelson’s conviction was reversed for trial error, and on retrial, she was acquitted of all charges. 

Petitioner Louis Alonzo Madden was convicted by a Colorado jury 

of attempting to patronize a prostituted child and attempted sexual

assault. The trial court imposed an indeterminate prison sentence 

and ordered him to pay $4,413.00 in costs, fees, and restitution. After one of Madden’s convictions was reversed on direct review and the 

other vacated on postconviction review, the State elected not to appeal or retry the case.

The Colorado Department of Corrections withheld $702.10 from

Nelson’s inmate account between her conviction and acquittal, and

Madden paid the State $1,977.75 after his conviction. In both cases, 

the funds were allocated to costs, fees, and restitution. Once their 

convictions were invalidated, both petitioners moved for return of the 

funds. Nelson’s trial court denied her motion outright, and Madden’s

postconviction court allowed a refund of costs and fees, but not restitution. The Colorado Court of Appeals concluded that both petitioners were entitled to seek refunds of all they had paid, but the Colorado Supreme Court reversed. It reasoned that Colorado’s 

Compensation for Certain Exonerated Persons statute (Exoneration 

Act or Act), Colo. Rev. Stat. §§13–65–101, 13–65–102, 13–65–103,

provided the exclusive authority for refunds and that, because nei-

—————— 

*Together with Madden v. Colorado, also on certiorari to the same 

court (see this Court’s Rule 12.4). 
 

 

 

 

2 NELSON v. COLORADO 

Syllabus 

ther Nelson nor Madden had filed a claim under that Act, the courts 

lacked authority to order refunds. The Colorado Supreme Court also

held that there was no due process problem under the Act, which 

permits Colorado to retain conviction-related assessments unless and

until the prevailing defendant institutes a discrete civil proceeding 

and proves her innocence by clear and convincing evidence. 

Held: The Exoneration Act’s scheme does not comport with the Fourteenth Amendment’s guarantee of due process. Pp. 5–11.

(a) The procedural due process inspection required by Mathews v. 

Eldridge, 424 U. S. 319, governs these cases. Medina v. California, 

505 U. S. 437, controls when state procedural rules that are part of 

the criminal process are at issue. These cases, in contrast, concern 

the continuing deprivation of property after a conviction has been reversed or vacated, with no prospect of reprosecution. Pp. 5–6. 

(b) The three considerations balanced under Mathews—the private

interest affected; the risk of erroneous deprivation of that interest 

through the procedures used; and the governmental interest at 

stake—weigh decisively against Colorado’s scheme. Pp. 6–10.

(1) Nelson and Madden have an obvious interest in regaining the 

money they paid to Colorado. The State may not retain these funds

simply because Nelson’s and Madden’s convictions were in place 

when the funds were taken, for once those convictions were erased, 

the presumption of innocence was restored. See, e.g., Johnson v. Mississippi, 486 U. S. 578, 585. And Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions. Pp. 6–8.

(2) Colorado’s scheme creates an unacceptable risk of the erroneous deprivation of defendants’ property. The Exoneration Act conditions refund on defendants’ proof of innocence by clear and convincing evidence, but defendants in petitioners’ position are presumed 

innocent. Moreover, the Act provides no remedy for assessments tied

to invalid misdemeanor convictions. And when, as here, the recoupment amount sought is not large, the cost of mounting a claim under

the Act and retaining counsel to pursue it would be prohibitive. 

Colorado argues that an Act that provides sufficient process to

compensate a defendant for the loss of her liberty must suffice to

compensate a defendant for the lesser deprivation of money. But 

Nelson and Madden seek the return of their property, not compensation for its temporary deprivation. Just as restoration of liberty on 

reversal of a conviction is not compensation, neither is the return of

money taken by the State on account of the conviction. Other procedures cited by Colorado—the need for probable cause to support criminal charges, the jury-trial right, and the State’s burden to prove 

guilt beyond a reasonable doubt—do not address the risk faced by a 
 

 

 

 

Cite as: 581 U. S. ____ (2017) 3 

Syllabus 

defendant whose conviction has been overturned that she will not recover funds taken from her based solely on a conviction no longer valid. Pp. 8–10.

(3) Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right. The 

State has identified no equitable considerations favoring its position,

nor indicated any way in which the Exoneration Act embodies such 

considerations. P. 10. 

362 P. 3d 1070 (first judgment) and 364 P. 3d 866 (second judgment), 

reversed and remanded. 

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

ALITO, J., filed an opinion concurring in the judgment. THOMAS, J., filed 

a dissenting opinion. GORSUCH, J., took no part in the consideration or 

decision of the cases. 
 

 

_________________ 

_________________ 

Cite as: 581 U. S. ____ (2017) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 15–1256 

SHANNON NELSON, PETITIONER v. COLORADO 

LOUIS A. MADDEN, PETITIONER v. COLORADO 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

COLORADO
 

[April 19, 2017]

 JUSTICE GINSBURG delivered the opinion of the Court. 

When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to 

refund fees, court costs, and restitution exacted from the 

defendant upon, and as a consequence of, the conviction? 

Our answer is yes. Absent conviction of a crime, one is 

presumed innocent. Under the Colorado law before us in 

these cases, however, the State retains conviction-related 

assessments unless and until the prevailing defendant 

institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. This scheme, we 

hold, offends the Fourteenth Amendment’s guarantee of 

due process. 

I 

A 

Two cases are before us for review. Petitioner Shannon 

Nelson, in 2006, was convicted by a Colorado jury of five 

counts—two felonies and three misdemeanors—arising 

from the alleged sexual and physical abuse of her four

children. 362 P. 3d 1070, 1071 (Colo. 2015); App. 25–26. 
 

 

2 NELSON v. COLORADO 

Opinion of the Court 

The trial court imposed a prison sentence of 20 years to

life and ordered Nelson to pay court costs, fees, and restitution totaling $8,192.50. 362 P. 3d, at 1071. On appeal,

Nelson’s conviction was reversed for trial error. Ibid. On 

retrial, a new jury acquitted Nelson of all charges. Ibid. 

Petitioner Louis Alonzo Madden, in 2005, was convicted 

by a Colorado jury of attempting to patronize a prostituted

child and attempted third-degree sexual assault by force. 

See 364 P. 3d 866, 867 (Colo. 2015). The trial court imposed an indeterminate prison sentence and ordered

Madden to pay costs, fees, and restitution totaling

$4,413.00. Ibid. The Colorado Supreme Court reversed

one of Madden’s convictions on direct review, and a postconviction court vacated the other. Ibid. The State elected 

not to appeal or retry the case. Ibid. 

Between Nelson’s conviction and acquittal, the Colorado 

Department of Corrections withheld $702.10 from her 

inmate account, $287.50 of which went to costs and fees1 

and $414.60 to restitution. See 362 P. 3d, at 1071, and 

n. 1. Following Madden’s conviction, Madden paid Colorado $1,977.75, $1,220 of which went to costs and fees2 

and $757.75 to restitution. See 364 P. 3d, at 867. The sole 

legal basis for these assessments was the fact of Nelson’s

and Madden’s convictions.3 Absent those convictions, 

—————— 

1Of the $287.50 for costs and fees, $125 went to the victim compensation fund and $162.50 to the victims and witnesses assistance and law 

enforcement fund (VAST fund). See 362 P. 3d 1070, 1071, n. 1 (Colo. 

2015). 2Of the $1,220 for costs and fees, $125 went to the victim compensation fund and $1,095 to the VAST fund ($1,000 of which was for the

special advocate surcharge). See App. 79; 364 P. 3d 866, 869 (Colo. 

2015). 3See Colo. Rev. Stat. §24–4.1–119(1)(a) (2005) (levying victimcompensation-fund fees for “each criminal action resulting in a conviction or in a deferred judgment and sentence”); §24–4.2–104(1)(a)(1)(I) 

(2005) (same, for VAST fund fees); §24–4.2–104(1)(a)(1)(II) (same, for

special advocate surcharge); §18–1.3–603(1) (2005) (with one exception, 
 

Cite as: 581 U. S. ____ (2017) 3 

Opinion of the Court 

Colorado would have no legal right to exact and retain

petitioners’ funds.

Their convictions invalidated, both petitioners moved for

return of the amounts Colorado had taken from them. In 

Nelson’s case, the trial court denied the motion outright.

362 P. 3d, at 1071. In Madden’s case, the postconviction

court allowed the refund of costs and fees, but not restitution. 364 P. 3d, at 867–868. 

The same Colorado Court of Appeals panel heard both 

cases and concluded that Nelson and Madden were entitled to seek refunds of all they had paid, including

amounts allocated to restitution. See People v. Nelson, 

369 P. 3d 625, 628–629 (2013); People v. Madden, 2013 

WL 1760869, *1 (Apr. 25, 2013). Costs, fees, and restitution, the court held, must be “tied to a valid conviction,” 

369 P. 3d, at 627–628, absent which a court must “retur[n]

the defendant to the status quo ante,” 2013 WL 1760869,

at *2. 

The Colorado Supreme Court reversed in both cases. A 

court must have statutory authority to issue a refund, that

court stated. 362 P. 3d, at 1077; 364 P. 3d, at 868. Colorado’s Compensation for Certain Exonerated Persons 

statute (Exoneration Act or Act), Colo. Rev. Stat. §§13–65–

101, 13–65–102, 13–65–103 (2016), passed in 2013, “provides the proper procedure for seeking a refund,” the court

ruled. 362 P. 3d, at 1075, 1077. As no other statute addresses refunds, the court concluded that the Exoneration 

Act is the “exclusive process for exonerated defendants 

—————— 

“[e]very order of conviction . . . shall include consideration of restitution”). See also 362 P. 3d, at 1073 (“[T]he State pays the cost of criminal cases when a defendant is acquitted.” (citing Colo. Rev. Stat. §16–

18–101(1) (2015))). Under Colorado law, a restitution order tied to a 

criminal conviction is rendered as a separate civil judgment. See §18–
 

1.3–603(4)(a) (2005). If the conviction is reversed, any restitution order 

dependent on that conviction is simultaneously vacated. See People v. 

Scearce, 87 P. 3d 228, 234–235 (Colo. App. 2003). 
 

4 NELSON v. COLORADO 

Opinion of the Court 

seeking a refund of costs, fees, and restitution.” Id., at 

1078.4 Because neither Nelson nor Madden had filed a 

claim under the Act, the court further determined, their 

trial courts lacked authority to order a refund. Id., at 

1075, 1078; 364 P. 3d, at 867.5 There was no due process 

problem, the court continued, because the Act “provides 

sufficient process for defendants to seek refunds of costs,

fees, and restitution that they paid in connection with

their conviction.” 362 P. 3d, at 1078. 

Justice Hood dissented in both cases. Because neither 

petitioner has been validly convicted, he explained, each

must be presumed innocent. Id., at 1079 (Nelson); 364

P. 3d, at 870 (adopting his reasoning from Nelson in Madden). Due process therefore requires some mechanism “for 

the return of a defendant’s money,” Justice Hood maintained, 362 P. 3d, at 1080; as the Exoneration Act required 

petitioners to prove their innocence, the Act, he concluded,

did not supply the remedy due process demands, id., at 

1081. We granted certiorari. 579 U. S. ___ (2016). 

B 

The Exoneration Act provides a civil claim for relief “to

compensate an innocent person who was wrongly convicted.” 362 P. 3d, at 1075. Recovery under the Act is available only to a defendant who has served all or part of a 

term of incarceration pursuant to a felony conviction, and 

whose conviction has been overturned for reasons other 

—————— 

4While these cases were pending in this Court, Colorado passed new 

legislation to provide “[r]eimbursement of amounts paid following a

vacated conviction.” See Colo. House Bill 17–1071 (quoting language

for Colo. Rev. Stat. §18–1.3–703, the new provision). That legislation

takes effect September 1, 2017, and has no effect on the cases before us. 5Prior to the Exoneration Act, the Colorado Supreme Court recognized the competence of courts, upon reversal of a conviction, to order 

the refund of monetary exactions imposed on a defendant solely by 

reason of the conviction. Toland v. Strohl, 147 Colo. 577, 586, 364 P. 2d 

588, 593 (1961). 
 

Cite as: 581 U. S. ____ (2017) 5 

Opinion of the Court 

than insufficiency of evidence or legal error unrelated to

actual innocence. See §13–65–102. To succeed on an 

Exoneration Act claim, a petitioner must show, by clear 

and convincing evidence, her actual innocence of the offense of conviction. §§13–65–101(1), 13–65–102(1). A 

successful petitioner may recoup, in addition to compensation for time served,6 “any fine, penalty, court costs, or 

restitution . . . paid . . . as a result of his or her wrongful 

conviction.” Id., at 1075 (quoting §13–65–103(2)(e)(V)). 

Under Colorado’s legislation, as just recounted, a defendant must prove her innocence by clear and convincing

evidence to obtain the refund of costs, fees, and restitution 

paid pursuant to an invalid conviction. That scheme, we 

hold, does not comport with due process. Accordingly, we

reverse the judgment of the Supreme Court of Colorado. 

II 

The familiar procedural due process inspection instructed

by Mathews v. Eldridge, 424 U. S. 319 (1976), governs 

these cases. Colorado argues that we should instead apply 

the standard from Medina v. California, 505 U. S. 437, 

445 (1992), and inquire whether Nelson and Madden were

exposed to a procedure offensive to a fundamental principle of justice. Medina “provide[s] the appropriate framework for assessing the validity of state procedural rules” 

that “are part of the criminal process.” Id., at 443. Such 

rules concern, for example, the allocation of burdens of 

—————— 

6Compensation under the Exoneration Act includes $70,000 per year

of incarceration for the wrongful conviction; additional sums per year 

served while the defendant is under a sentence of death, or placed on

parole or probation or on a sex offender registry; compensation for child 

support payments due during incarceration; tuition waivers at state 

institutions of higher education for the exonerated person and for any 

children conceived or legally adopted before the incarceration; and 

reasonable attorney’s fees for bringing an Exoneration Act claim. §13–

65–103(2), (3) (2016). 
 

 

 

6 NELSON v. COLORADO 

Opinion of the Court 

proof and the type of evidence qualifying as admissible.7 

These cases, in contrast, concern the continuing deprivation of property after a conviction has been reversed or 

vacated, with no prospect of reprosecution. See Kaley v. 

United States, 571 U. S. ___, ___, n. 4 (2014) (ROBERTS, 

C. J., dissenting) (slip op., at 10–11, n. 4) (explaining the 

different offices of Mathews and Medina). Because no 

further criminal process is implicated, Mathews “provides 

the relevant inquiry.” 571 U. S., at ___ (slip op., at 11, 

n. 4). 

III

 Under the Mathews balancing test, a court evaluates

(A) the private interest affected; (B) the risk of erroneous

deprivation of that interest through the procedures used; 

and (C) the governmental interest at stake. 424 U. S., at 

335. All three considerations weigh decisively against 

Colorado’s scheme. 

A 

Nelson and Madden have an obvious interest in regaining the money they paid to Colorado. Colorado urges,

however, that the funds belong to the State because Nelson’s and Madden’s convictions were in place when the

funds were taken. Tr. of Oral Arg. 29–31. But once those 

convictions were erased, the presumption of their innocence was restored. See, e.g., Johnson v. Mississippi, 486 

U. S. 578, 585 (1988) (After a “conviction has been reversed, unless and until [the defendant] should be retried, 

—————— 

7See Cooper v. Oklahoma, 517 U. S. 348, 356–362 (1996) (standard of

proof to establish incompetence to stand trial); Dowling v. United 

States, 493 U. S. 342, 343–344, 352 (1990) (admissibility of testimony

about a prior crime of which the defendant was acquitted); Patterson v. 

New York, 432 U. S. 197, 198, 201–202 (1977) (burden of proving 

affirmative defense); Medina v. California, 505 U. S. 437, 443–446, 457 

(1992) (burden of proving incompetence to stand trial). 
 

 

Cite as: 581 U. S. ____ (2017) 7 

Opinion of the Court 

he must be presumed innocent of that charge.”).8 

“[A]xiomatic and elementary,” the presumption of innocence “lies at the foundation of our criminal law.” Coffin v. 

United States, 156 U. S. 432, 453 (1895).9 Colorado may

not retain funds taken from Nelson and Madden solely 

because of their now-invalidated convictions, see supra, at 

2–3, and n. 3, for Colorado may not presume a person,

adjudged guilty of no crime, nonetheless guilty enough for 

monetary exactions.10 

That petitioners prevailed on subsequent review rather

than in the first instance, moreover, should be inconsequential. Suppose a trial judge grants a motion to set 

aside a guilty verdict for want of sufficient evidence. In 

that event, the defendant pays no costs, fees, or restitution. Now suppose the trial court enters judgment on a

guilty verdict, ordering cost, fee, and restitution payments 

—————— 

8Citing Bell v. Wolfish, 441 U. S. 520 (1979), Colorado asserts that

“[t]he presumption of innocence applies only at criminal trials” and

thus has no application here. Brief for Respondent 40, n. 19. Colorado 

misapprehends Wolfish. Our opinion in that case recognized that

“under the Due Process Clause,” a detainee who “has not been adjudged

guilty of any crime” may not be punished. 441 U. S., at 535–536; see 

id., at 535–540. Wolfish held only that the presumption does not 

prevent the government from “detain[ing a defendant] to ensure his 

presence at trial . . . so long as [the] conditions and restrictions [of his 

detention] do not amount to punishment, or otherwise violate the

Constitution.” Id., at 536–537. 9Were Medina applicable, Colorado’s Exoneration Act scheme would

similarly fail due process measurement. Under Medina, a criminal 

procedure violates due process if “it offends some principle of justice so

rooted in the traditions and conscience of our people as to be ranked as 

fundamental.” 505 U. S., at 445 (quoting Patterson, 432 U. S., at 202). 

The presumption of innocence unquestionably fits that bill. 10Colorado invites a distinction between convictions merely “voidable,” rather than “void,” and urges that the invalidated convictions here

fall in the voidable category. See Brief for Respondent 32–33, and 

n. 11. As Justice Hood noted in dissent, however, “reversal is reversal,” 

regardless of the reason, “[a]nd an invalid conviction is no conviction at 

all.” 362 P. 3d, at 1080. 
 

 

 

8 NELSON v. COLORADO 

Opinion of the Court 

by reason of the conviction, but the appeals court upsets

the conviction for evidentiary insufficiency. By what right

does the State retain the amount paid out by the defendant? “[I]t should make no difference that the reviewing

court, rather than the trial court, determined the evidence 

to be insufficient.” Burks v. United States, 437 U. S. 1, 11 

(1978). The vulnerability of the State’s argument that it 

can keep the amounts exacted so long as it prevailed in 

the court of first instance is more apparent still if we 

assume a case in which the sole penalty is a fine. On 

Colorado’s reasoning, an appeal would leave the defendant 

emptyhanded; regardless of the outcome of an appeal, the 

State would have no refund obligation. See Tr. of Oral 

Arg. 41, 44.11 

B 

Is there a risk of erroneous deprivation of defendants’ 

interest in return of their funds if, as Colorado urges, the

Exoneration Act is the exclusive remedy? Indeed yes, for 

the Act conditions refund on defendants’ proof of innocence 

by clear and convincing evidence. §13–65–101(1)(a). But 

to get their money back, defendants should not be saddled

with any proof burden. Instead, as explained supra, at 6– 

7, they are entitled to be presumed innocent.

Furthermore, as Justice Hood noted in dissent, the Act 

—————— 

11The dissent echoes Colorado’s argument. If Nelson and Madden 

prevailed at trial, the dissent agrees, no costs, fees, or restitution could 

be exacted. See post, at 6. But if they prevailed on appellate inspection, the State gets to keep their money. See ibid. Under Colorado law, 

as the dissent reads the Colorado Supreme Court’s opinion, “moneys

lawfully exacted pursuant to a valid conviction become public funds

(or[, in the case of restitution,] the victims’ money).” Post, at 3–4. Shut 

from the dissent’s sights, however, the convictions pursuant to which

the State took petitioners’ money were invalid, hence the State had no 

legal right to retain their money. Given the invalidity of the convictions, does the Exoneration Act afford sufficient process to enable the 

State to retain the money? Surely, it does not. 
Cite as: 581 U. S. ____ (2017) 9 

Opinion of the Court 

provides no remedy at all for any assessments tied to

invalid misdemeanor convictions (Nelson had three). 362 

P. 3d, at 1081, n. 1; see §13–65–102(1)(a). And when 

amounts a defendant seeks to recoup are not large, as is

true in Nelson’s and Madden’s cases, see supra, at 2, the 

cost of mounting a claim under the Exoneration Act and 

retaining a lawyer to pursue it would be prohibitive.12 

Colorado argued on brief that if the Exoneration Act 

provides sufficient process to compensate a defendant for

the loss of her liberty, the Act should also suffice “when a 

defendant seeks compensation for the less significant 

deprivation of monetary assessments paid pursuant to a

conviction that is later overturned.” Brief for Respondent

40. The comparison is inapt. Nelson and Madden seek 

restoration of funds they paid to the State, not compensation for temporary deprivation of those funds. Petitioners 

seek only their money back, not interest on those funds for 

the period the funds were in the State’s custody. Just as 

the restoration of liberty on reversal of a conviction is not 

compensation, neither is the return of money taken by the 

State on account of the conviction. 

Colorado also suggests that “numerous pre- and postdeprivation procedures”—including the need for probable

cause to support criminal charges, the jury-trial right, and

the State’s burden to prove guilt beyond a reasonable 

doubt—adequately minimize the risk of erroneous deprivation of property. Id., at 31; see id., at 31–35. But Colorado misperceives the risk at issue. The risk here involved 

is not the risk of wrongful or invalid conviction any criminal defendant may face. It is, instead, the risk faced by a 

defendant whose conviction has already been overturned 

—————— 

12A 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. 
 

10 NELSON v. COLORADO 

Opinion of the Court 

that she will not recover funds taken from her solely on

the basis of a conviction no longer valid. None of the 

above-stated procedures addresses that risk, and, as just 

explained, the Exoneration Act is not an adequate remedy for the property deprivation Nelson and Madden 

experienced.13 

C 

Colorado has no interest in withholding from Nelson 

and Madden money to which the State currently has zero

claim of right. “Equitable [c]onsiderations,” Colorado 

suggests, may bear on whether a State may withhold 

funds from criminal defendants after their convictions 

are overturned. Brief for Respondent 20–22. Colorado, 

however, has identified no such consideration relevant 

to petitioners’ cases, nor has the State indicated any

way in which the Exoneration Act embodies “equitable 

considerations.” 

IV 

Colorado’s scheme fails due process measurement because defendants’ interest in regaining their funds is high, 

the risk of erroneous deprivation of those funds under the 

Exoneration Act is unacceptable, and the State has shown

no countervailing interests in retaining the amounts in

question. To comport with due process, a State may not 

impose anything more than minimal procedures on the 

refund of exactions dependent upon a conviction subsequently invalidated. 

—————— 

13Colorado additionally argues that defendants can request a stay of 

sentence pending appeal, thereby reducing the risk of erroneous deprivation. See Brief for Respondent 32; §§16–12–103, 18–1.3–702(1)(a) 

(2016). But the State acknowledged at oral argument that few defendants can meet the requirements a stay pending appeal entails. Tr. of 

Oral Arg. 33–34. And even when a stay is available, a trial court “may

require the defendant to deposit the whole or any part of the . . . costs.” 

Colo. App. Rule 8.1(a)(3) (2016). 
 

Cite as: 581 U. S. ____ (2017) 11 

Opinion of the Court 

* * * 

The judgments of the Colorado Supreme Court are

reversed, and the cases are remanded for further proceedings not inconsistent with this opinion. 

It is so ordered.

 JUSTICE GORSUCH took no part in the consideration or 

decision of these cases. 
_________________ 

_________________ 

Cite as: 581 U. S. ____ (2017) 1 

ALITO, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 15–1256 

SHANNON NELSON, PETITIONER v. COLORADO 

LOUIS A. MADDEN, PETITIONER v. COLORADO 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

COLORADO 

[April 19, 2017] 

JUSTICE ALITO, concurring in the judgment. 

I agree that the judgments of the Colorado Supreme

Court must be reversed, but I reach that conclusion by a

different route. 

I 

The proper framework for analyzing these cases is provided by Medina v. California, 505 U. S. 437 (1992). Medina applies when we are called upon to “asses[s] the

validity of state procedural rules which . . . are part of the 

criminal process,” id., at 443, and that is precisely the 

situation here. These cases concern Colorado’s rules for 

determining whether a defendant can obtain a refund of 

money that he or she was required to pay pursuant to a

judgment of conviction that is later reversed. In holding

that these payments must be refunded, the Court relies on

a feature of the criminal law, the presumption of innocence. And since the Court demands that refunds occur 

either automatically or at least without imposing anything

more than “minimal” procedures, see ante, at 10, it appears that they must generally occur as part of the criminal case. For these reasons, the refund obligation is surely

“part of the criminal process” and thus falls squarely 

within the scope of Medina. The only authority cited by

the Court in support of its contrary conclusion is a footnote 
 

 

 

 

2 NELSON v. COLORADO 

ALITO, J., concurring in judgment 

in a dissent. See ante, at 6 (citing Kaley v. United States, 

571 U. S. ___, ___, n. 4 (2014) (opinion of ROBERTS, C. J.) 

(slip op., at 10–11, n. 4)). Under Medina, a state rule of 

criminal procedure not governed by a specific rule set out 

in the Bill of Rights violates the Due Process Clause of the

Fourteenth Amendment only if it offends a fundamental 

and deeply rooted principle of justice. 505 U. S., at 445. 

And “[h]istorical practice is probative of whether a procedural rule can be characterized as fundamental.” Id., at 

446. Indeed, petitioners invite us to measure the Colorado 

scheme against traditional practice, reminding us that our 

“‘first due process cases’” recognized that “‘traditional 

practice provides a touchstone for constitutional analysis,’” Brief for Petitioners 26 (quoting Honda Motor Co. v. 

Oberg, 512 U. S. 415, 430 (1994)). Petitioners then go on

to argue at some length that “[t]he traditional rule has 

always been that when a judgment is reversed, a person 

who paid money pursuant to that judgment is entitled to

receive the money back.” Brief for Petitioners 26; see id., 

at 26–30. See also Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 4–14 (discussing 

traditional practice).

The Court, by contrast, turns its back on historical

practice, preferring to balance the competing interests 

according to its own lights. The Court applies the balancing test set out in Mathews v. Eldridge, 424 U. S. 319 

(1976), a modern invention “first conceived” to decide what

procedures the government must observe before depriving 

persons of novel forms of property such as welfare or 

Social Security disability benefits. Dusenbery v. United 

States, 534 U. S. 161, 167 (2002). Because these interests 

had not previously been regarded as “property,” the Court

could not draw on historical practice for guidance. 

Mathews has subsequently been used more widely in civil

cases, but we should pause before applying its balancing 

test in matters of state criminal procedure. “[T]he States 
 

 

 

Cite as: 581 U. S. ____ (2017) 3 

ALITO, J., concurring in judgment 

have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of 

common-law tradition.” Medina, supra, at 445–446. 

Applying the Mathews balancing test to established rules

of criminal practice and procedure may result in “undue 

interference with both considered legislative judgments 

and the careful balance that the Constitution strikes 

between liberty and order.” Medina, supra, at 443. Where 

long practice has struck a particular balance between the 

competing interests of the State and those charged with 

crimes, we should not lightly disturb that determination.

For these reasons, Medina’s historical inquiry, not 

Mathews, provides the proper framework for use in these 

cases.1 

II

 Under Medina, the Colorado scheme at issue violates 

due process. American law has long recognized that when

an individual is obligated by a civil judgment to pay money 

to the opposing party and that judgment is later reversed, 

the money should generally be repaid. See, e.g., Northwestern Fuel Co. v. Brock, 139 U. S. 216, 219 (1891) (“The 

right of restitution of what one has lost by the enforcement 

of a judgment subsequently reversed has been recognized 

in the law of England from a very early period . . . ”); Bank 

—————— 

1 In a footnote, the Court briefly opines on how a Medina analysis 

would come out in these cases. The Court’s discussion of the issue, 

which is dictum, is substantially incomplete. The Court suggests that 

Medina would support its judgment because the presumption of innocence is deeply rooted and fundamental. Ante, at 7, n. 9. It is true, of 

course, that this presumption is restored when a conviction is reversed.

But that says very little about the question at hand: namely, what must 

happen once that presumption is restored. Notably, the Court cites not

a single case applying the presumption of innocence in the refund 

context. At the same time, the Court ignores cases that bear directly on 

the question in these cases and thus must be part of a proper Medina 

inquiry. See infra, at this page and 4–5. 
 

 

4 NELSON v. COLORADO 

ALITO, J., concurring in judgment 

of United States v. Bank of Washington, 6 Pet. 8, 17 (1832)

(“On the reversal of an erroneous judgment, the law raises 

an obligation in the party to the record, who has received

the benefit of the erroneous judgment, to make restitution

to the other party for what he has lost”). This was “a 

remedy well known at common law,” memorialized as “a

part of the judgment of reversal which directed ‘that the 

defendant be restored to all things which he has lost on

occasion of the judgment aforesaid.’” 2 Ruling Case Law 

§248, p. 297 (W. McKinney and B. Rich eds. 1914); Duncan 

v. Kirkpatrick, 13 Serg. & Rawle 292, 294 (Pa. 1825). 

As both parties acknowledge, this practice carried over

to criminal cases. When a conviction was reversed, defendants could recover fines and monetary penalties assessed as part of the conviction. Brief for Respondent 20–

21, and n. 7; Reply Brief 7–8, 11; see, e.g., Annot., Right To

Recover Back Fine or Penalty Paid in Criminal Proceeding, 26 A. L. R. 1523, 1532, §VI(a) (1923) (“When a judgment imposing a fine, which is paid, is vacated or reversed

on appeal, the court may order restitution of the amount

paid . . . ”); 25 C. J. §39, p. 1165 (W. Mack, W. Hale, & D.

Kiser eds. 1921) (“Where a fine illegally imposed has been 

paid, on reversal of the judgment a writ of restitution may 

issue against the parties who received the fine”). 

The rule regarding recovery, however, “even though

general in its application, [was] not without exceptions.” 

Atlantic Coast Line R. Co. v. Florida, 295 U. S. 301, 309 

(1935) (Cardozo, J.). The remedy was “equitable in origin

and function,” and return of the money was “‘not of mere

right,’” but “‘rest[ed] in the exercise of a sound discretion.’” Id., at 309, 310 (quoting Gould v. McFall, 118 Pa. 

455, 456 (1888)). This was true in both civil and criminal 

cases. See, e.g., 25 C. J., at 1165 (noting that “restitution

[of fines paid on a conviction later reversed] is not necessarily a matter of right”); Annot., 26 A. L. R., at 1532,

§VI(a) (Restitution for fines upon reversal of a conviction 
 

 

Cite as: 581 U. S. ____ (2017) 5 

ALITO, J., concurring in judgment 

“is not a matter of strict legal right, but rather one for the 

exercise of the court’s discretion”). The central question

courts have asked is whether “the possessor will give 

offense to equity and good conscience if permitted to retain 

[the successful appellant’s money].” Atlantic Coast Line, 

supra, at 309. 

This history supports the Court’s rejection of the Colorado Exoneration Act’s procedures. The Act places a

heavy burden of proof on defendants, provides no opportunity for a refund for defendants (like Nelson) whose

misdemeanor convictions are reversed, and excludes defendants whose convictions are reversed for reasons unrelated to innocence. Brief for Respondent 8, 35, n. 18.

These stringent requirements all but guarantee that most 

defendants whose convictions are reversed have no realistic opportunity to prove they are deserving of refunds.

Colorado has abandoned historical procedures that were

more generous to successful appellants and incorporated a 

court’s case-specific equitable judgment. Instead, Colorado 

has adopted a system that is harsh, inflexible, and prevents most defendants whose convictions are reversed 

from demonstrating entitlement to a refund. Indeed, the 

Colorado General Assembly made financial projections

based on the assumption that only one person every five

years would qualify for a financial award under the Exoneration Act. Colorado Legislative Council Staff Fiscal

Note, State and Local Revised Fiscal Impact, HB 13–1230,

p. 2 (Apr. 22, 2013), online at http://leg.colorado.gov (as 

last visited Apr. 17, 2017). Accordingly, the Exoneration 

Act does not satisfy due process requirements. See Cooper 

v. Oklahoma, 517 U. S. 348, 356 (1996) (A state rule of 

criminal procedure may violate due process where “a rule

significantly more favorable to the defendant has had a

long and consistent application”). 
 

 

6 NELSON v. COLORADO 

ALITO, J., concurring in judgment
 

III
 

Although long-established practice supports the Court’s

judgment, the Court rests its decision on different 

grounds. In its Mathews analysis, the Court reasons that

the reversal of petitioners’ convictions restored the presumption of their innocence and that “Colorado may not

presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.” Ante, at 7. 

The implication of this brief statement is that under 

Mathews, reversal restores the defendant to the status quo 

ante, see ante, at 3. But the Court does not confront the 

obvious implications of this reasoning. 

For example, if the status quo ante must be restored, 

why shouldn’t the defendant be compensated for all the

adverse economic consequences of the wrongful conviction?2 After all, in most cases, the fines and payments

that a convicted defendant must pay to the court are

minor in comparison to the losses that result from conviction and imprisonment, such as attorney’s fees, lost income, and damage to reputation. The Court cannot convincingly explain why Mathews’ amorphous balancing test 

stops short of requiring a full return to the status quo ante 

when a conviction is reversed. But Medina does. 

The American legal system has long treated compensation for the economic consequences of a reversed conviction very differently from the refund of fines and other

payments made by a defendant pursuant to a criminal 

judgment. Statutes providing compensation for time 

—————— 

2The Court’s position is also at odds with other principles of our procedural due process jurisprudence. It is well settled, for example, that

a plaintiff who is deprived of property with inadequate process is not

entitled to be compensated if the defendant can prove the deprivation

“would have occurred even if [the plaintiff] had been given due process.” 

Thompson v. District of Columbia, 832 F. 3d 339, 346 (CADC 2016); see 

Carey v. Piphus, 435 U. S. 247, 260, 263 (1978). This principle is in 

obvious tension with the Court’s holding. 
 

Cite as: 581 U. S. ____ (2017) 7 

ALITO, J., concurring in judgment 

wrongfully spent in prison are a 20th-century innovation: 

By 1970, only the Federal Government and four States

had passed such laws. King, Compensation of Persons 

Erroneously Confined by the State, 118 U. Pa. L. Rev.

1091, 1109 (1970); United States v. Keegan, 71 F. Supp.

623, 626 (SDNY 1947) (“[T]here seems to have been no

legislation by our Government on this subject” until 1938).

Many other jurisdictions have done so since, but under 

most such laws, compensation is not automatic. Instead, 

the defendant bears the burden of proving actual innocence (and, sometimes, more). King, supra, at 1110 (“The 

burden of proving innocence in the compensation proceeding has from the start been placed upon the claimant”);

see also Kahn, Presumed Guilty Until Proven Innocent:

The Burden of Proof in Wrongful Conviction Claims Under 

State Compensation Statutes, 44 U. Mich. J. L. Reform

123, 145 (2010) (Most U. S. compensation statutes “require that claimants prove their innocence either by a

preponderance of the evidence or by clear and convincing

evidence” (footnote omitted)). In construing the federal 

statute, courts have held that a compensation proceeding 

“is not . . . a criminal trial” and that the burden of proof 

can be placed on the petitioner. United States v. Brunner, 

200 F. 2d 276, 279 (CA6 1952). As noted, Colorado and 

many other States have similar statutes designed narrowly

to compensate those few persons who can demonstrate

that they are truly innocent. The Court apparently

acknowledges that these statutes pose no constitutional 

difficulty. That is the correct conclusion, but it is best 

justified by reference to history and tradition. 

IV 

The Court’s disregard of historical practice is particularly damaging when it comes to the question of restitution. 

The Court flatly declares that the State is “obliged to

refund . . . restitution” in just the same way as fees and 
 

 

 

8 NELSON v. COLORADO 

ALITO, J., concurring in judgment 

court costs. Ante, at 1. This conclusion is not supported 

by historical practice, and it overlooks important differences between restitution, which is paid to the victims of

an offense, and fines and other payments that are kept by

the State. 

Although restitution may be included in a criminal 

judgment, it has many attributes of a civil judgment in

favor of the victim. This is clear under Colorado law. 

Although the obligation to pay restitution is included in

the defendant’s sentence, restitution results in a final civil 

judgment against the defendant in favor of the State and 

the victim. Colo. Rev. Stat. §18–1.3–603(4)(a)(I) (2016). 

Entitlement to restitution need not be established beyond

a reasonable doubt or in accordance with standard rules 

of evidence or criminal procedure. People v. Pagan, 165 

P. 3d 724, 729 (Colo. App. 2006); Colo. Rev. Stat. §§18–

1.3–603(2)–(3). And the judgment may be enforced either 

by the State or the victim. §§16–18.5–106(2), §§16–18.5– 

107(1)–(4).

The Court ignores the distinctive attributes of restitution, but they merit attention. Because a restitution order 

is much like a civil judgment, the reversal of the defendant’s criminal conviction does not necessarily undermine 

the basis for restitution. Suppose that a victim successfully

sues a criminal defendant civilly and introduces the defendant’s criminal conviction on the underlying conduct as

(potentially preclusive) evidence establishing an essential 

element of a civil claim. See, e.g., 2 K. Broun, McCormick 

on Evidence §298, 473–477 (7th ed. 2013) (discussing the 

admissibility, and potential preclusive effect, of a criminal

conviction in subsequent civil litigation). And suppose

that the defendant’s criminal conviction is later reversed 

for a trial error that did not (and could not) infect the later 

civil proceeding: for example, the admission of evidence 

barred by the exclusionary rule or a Confrontation Clause 

violation. It would be unprecedented to suggest that due 
 

 

 

 

Cite as: 581 U. S. ____ (2017) 9 

ALITO, J., concurring in judgment 

process requires unwinding the civil judgment simply 

because it rests in part on a criminal conviction that has

since been reversed. And a very similar scenario could

unfold with respect to a Colorado restitution judgment.

The only salient difference would be that, in the Colorado

case, the civil judgment would have been obtained as part

of the criminal proceeding itself. It is not clear (and the

Court certainly does not explain) why that formal distinction should make a substantive difference.3 

It is especially startling to insist that a State must

provide a refund after enforcing a restitution judgment on

the victims’ behalf in reliance on a final judgment that is

then vacated on collateral review. Faced with this fact 

pattern, the Ninth Circuit declined to require reimbursement, reasoning that the Government was a mere “escrow 

agent” executing a then-valid final judgment in favor of a

third party. United States v. Hayes, 385 F. 3d 1226, 1230 

(2004).

The Court regrettably mentions none of this. Its treatment of restitution is not grounded in any historical analysis, and—save for a brief footnote, ante, at 2–3, n. 3—the 

Court does not account for the distinctive civil status of 

restitution under Colorado law (or the laws of the many 

other affected jurisdictions that provide this remedy to

crime victims). 

Nor does the Court consider how restitution’s unique 

characteristics might affect the balance that it strikes 

under Mathews. Ante, at 10. The Court summarily rejects 

—————— 

3The Court cites one intermediate appellate case for the proposition 

that when a conviction is reversed, any restitution order dependent on

that conviction is simultaneously vacated. Ante, at 2–3, n. 3 (citing 

People v. Scearce, 87 P. 3d 228 (Colo. App. 2003)). Scearce did not 

discuss whether any payments had been made to victims or—if so—

whether they would be recoverable from the State. More important, 

Scearce is hardly the last word on the question whether due process 

invariably requires the refund of restitution. 
 

 

10 NELSON v. COLORADO 

ALITO, J., concurring in judgment 

the proposition that “‘equitable considerations’” might

militate against a blanket rule requiring the refund of 

money paid as restitution, see ibid., but why is this so?

What if the evidence amply establishes that the defendant 

injured the victims to whom restitution was paid but the 

defendant’s conviction is reversed on a ground that would 

be inapplicable in a civil suit? In that situation, is it true, 

as the Court proclaims, that the State would have “no 

interest” in withholding a refund? Would the Court reach 

that conclusion if state law mandated a refund from the 

recipients of the restitution? And if the States and the 

Federal Government are always required to foot the bill

themselves, would that risk discourage them from seeking 

restitution—or at least from providing funds to victims

until the conclusion of appellate review? 

It was unnecessary for the Court to issue a sweeping

pronouncement on restitution. But if the Court had to 

address this subject to dispose of these cases, it should

have acknowledged that—at least in some circumstances—

refunds of restitution payments made under later reversed

judgments are not constitutionally required. 

* * * 

For these reasons, I concur only in the judgment. 
_________________ 

_________________ 

Cite as: 581 U. S. ____ (2017) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 15–1256 

SHANNON NELSON, PETITIONER v. COLORADO 

LOUIS A. MADDEN, PETITIONER v. COLORADO 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

COLORADO 

[April 19, 2017] 

JUSTICE THOMAS, dissenting. 

The majority and concurring opinions debate whether 

the procedural due process framework of Mathews v. 

Eldridge, 424 U. S. 319 (1976), or that of Medina v. California, 505 U. S. 437 (1992), governs the question before 

us. But both opinions bypass the most important question 

in these cases: whether petitioners can show a substantive 

entitlement to a return of the money they paid pursuant to

criminal convictions that were later reversed or vacated. 

The Court assumes, without reference to either state or 

federal law, that defendants whose convictions have been 

reversed have a substantive right to any money exacted on 

the basis of those convictions. By doing so, the Court

assumes away the real issue in these cases. As the parties 

have agreed, the existence of Colorado’s obligation to

provide particular procedures depends on whether petitioners have a substantive entitlement to the money.

Colorado concedes that “if [petitioners] have a present 

entitlement” to the money—that is, if “it is their property”—“then due process requires [the State to accord] them

some procedure to get it back.” Tr. of Oral Arg. 52. And 

Colorado acknowledges that the procedural hurdles it

could impose before returning the money “would be fairly

minimal,” id., at 51, because petitioners would need to 
 

 

2 NELSON v. COLORADO 

THOMAS, J., dissenting 

prove only that their convictions had been reversed and 

that they had paid a certain sum of money, see ibid. 

Similarly, petitioners concede that if defendants in their

position do not have a substantive right to recover the

money—that is, if the money belongs to the State—then

Colorado need not “provide any procedure to give it back.” 

Id., at 53. If defendants in their position have no entitlement to the money they paid pursuant to their reversed 

convictions, there would be nothing to adjudicate. In light

of these concessions, I can see no justification for the 

Court’s decision to address the procedures for adjudicating

a substantive entitlement while failing to determine 

whether a substantive entitlement exists in the first place. 

In my view, petitioners have not demonstrated that 

defendants whose convictions have been reversed possess

a substantive entitlement, under either state law or the 

Constitution, to recover money they paid to the State 

pursuant to their convictions. Accordingly, I cannot agree

with the Court’s decision to reverse the judgments of the 

Colorado Supreme Court. 

I 

The Fourteenth Amendment provides that no State

shall “deprive any person of life, liberty, or property, without due process of law.” U. S. Const., Amdt. 14, §1 (emphasis added).1 To show that Colorado has violated the 

—————— 

1As I have previously observed, the Due Process Clause may have

originally been understood to require only “that our Government . . . 

proceed according to the ‘law of the land’—that is, according to written 

constitutional and statutory provisions”—before depriving someone of 

life, liberty, or property. Johnson v. United States, 576 U. S. ___, ___ 

(2015) (THOMAS, J., concurring in judgment) (slip op., at 17) (quoting 

Hamdi v. Rumsfeld, 542 U. S. 507, 589 (2004) (THOMAS, J., dissenting)). 

Because Colorado does not advance that argument, and because it is

unnecessary to resolve the issue in these cases. I assume that the Due 

Process Clause requires some baseline procedures regardless of the

provisions of Colorado law. 
 

Cite as: 581 U. S. ____ (2017) 3 

THOMAS, J., dissenting 

Constitution’s procedural guarantees, as relevant here, 

petitioners must first establish that they have been deprived of a protected property interest. See Castle Rock v. 

Gonzales, 545 U. S. 748, 756 (2005) (“The procedural 

component of the Due Process Clause does not protect 

everything that might be described as a benefit: To have a

property interest in a benefit, a person clearly must have 

. . . a legitimate claim of entitlement to it” (internal quotation marks omitted)). “Because the Constitution protects

rather than creates property interests, the existence of a 

property interest is determined by reference to ‘existing 

rules or understandings that stem from an independent 

source such as state law.’” Phillips v. Washington Legal 

Foundation, 524 U. S. 156, 164 (1998) (quoting Board of 

Regents of State Colleges v. Roth, 408 U. S. 564, 577 

(1972)). Petitioners undoubtedly have an “interest in 

regaining the money they paid to Colorado.” Ante, at 6. 

But to succeed on their procedural due process claim,

petitioners must first point to a recognized property interest in that money, under state or federal law, within the

meaning of the Fourteenth Amendment. 

A 

The parties dispute whether, under Colorado law, the

petitioners or the State have a property interest in the

money paid by petitioners pursuant to their convictions. 

Petitioners contend that the money remains their property

under state law. Reply Brief 1–3; see also Tr. of Oral Arg. 

52–54. Colorado counters that when petitioners paid the 

money pursuant to their convictions, the costs and fees

became property of the State and the restitution became 

property of the victims. See id., at 28–30; Brief for 

Respondent 41.

The key premise of the Colorado Supreme Court’s holdings in these cases is that moneys lawfully exacted pursuant to a valid conviction become public funds (or the vic-
 

 

4 NELSON v. COLORADO 

THOMAS, J., dissenting 

tims’ money) under Colorado law. The Colorado Supreme

Court explained in petitioner Shannon Nelson’s case that 

“the trial court properly ordered [her] to pay costs, fees, 

and restitution pursuant to valid statutes” and that “the 

court correctly distributed th[ose] funds to victims and 

public funds, as ordered by the statutes.” 362 P. 3d 1070, 

1076 (2015) (emphasis added); accord, 364 P. 3d 866, 868–

870 (2016) (applying the same analysis to petitioner Louis

Madden’s case). The Colorado Supreme Court further

noted that, “[o]nce the state disburses restitution to the 

victims, the state no longer controls that money.” 362 

P. 3d, at 1077, n. 4. 

The Colorado Supreme Court explained that “Colorado’s

constitution protects” the Colorado Legislature’s “control 

over public money,” and thus a “court may authorize 

refunds from public funds only pursuant to statutory 

authority.” Id., at 1076–1077. The Exoneration Act, the 

Colorado Supreme Court held, provides the only statutory 

authority for refunding costs, fees, and restitution when a 

defendant’s conviction is overturned. Id., at 1077–1078. 

Because petitioners had not sought a refund under the 

Exoneration Act, “the trial court lacked the authority to

order a refund of Nelson’s costs, fees, and restitution.” Id., 

at 1078; 364 P. 3d, at 867. 

At no point in this litigation have petitioners attempted

to demonstrate that they satisfy the requirements of the

Exoneration Act. Under the Act, Colorado recognizes a

substantive entitlement to the kind of property at issue in

these cases only if, among other things, the defendant can

prove that he is “actually innocent.”2 Colo. Rev. Stat. 

—————— 

2More specifically, the Exoneration Act entitles an exonerated defendant to compensation if he was convicted of a felony, was incarcerated, and, among other requirements, can prove by clear and convincing evidence that he is “actually innocent,” meaning that his “conviction 

was the result of a miscarriage of justice” or that he is factually innocent. Colo. Rev. Stat. §§13–65–101(1)(a), 13–65–102(1)(a) (2016); see 
 

Cite as: 581 U. S. ____ (2017) 5 

THOMAS, J., dissenting 

§§13–65–101, 13–65–102 (2016). It is the Exoneration Act 

alone which defines the scope of the substantive entitlement. This Court has interpreted the Due Process Clause

to require that the States provide certain procedures, such

as notice and a hearing, by which an individual can prove 

a substantive entitlement to (or defend against a deprivation of) property. But the Clause, properly understood, 

has nothing to say about the existence or scope of the

substantive entitlement itself. See Part I–B, infra. If 

petitioners want this Court to rewrite the contours of 

the substantive entitlement contained in the Exoneration 

Act, they err in invoking procedural due process. See 

Reply Brief 1–2 (“Our argument sounds in procedural due 

process”).

The majority responds by asserting, without citing any

state law, that Colorado “had no legal right to retain

[petitioners’] money” once their convictions were invalidated. Ante, at 8, n. 11. If this were true as a matter of 

state law, then certain provisions of the Exoneration Act—

which require the State to return costs, fees, and restitution only in limited circumstances following a conviction’s

reversal—would be superfluous. Thus, to the extent the 

majority implicitly suggests that petitioners have a statelaw right to an automatic refund (a point about which the 

majority is entirely unclear), it is plainly incorrect. 

B 

Because defendants in petitioners’ position do not have

a substantive right to recover the money they paid to 

Colorado under state law, petitioners’ asserted right to an

automatic refund must arise, if at all, from the Due Process Clause itself. But the Due Process Clause confers no 

substantive rights. McDonald v. Chicago, 561 U. S. 742, 

—————— 

Nelson, 362 P. 3d, at 1075. “Insufficiency of the evidence or a legal 

error unrelated to the person’s actual innocence cannot support either

exoneration or subsequent compensation under the Act.” Ibid. 
 

 

 

6 NELSON v. COLORADO 

THOMAS, J., dissenting 

811 (2010) (THOMAS, J., concurring in part and concurring

in judgment) (“The notion that a constitutional provision 

that guarantees only ‘process’ before a person is deprived 

of life, liberty, or property could define the substance of 

those rights strains credulity for even the most casual user

of words”). And, in any event, petitioners appear to disavow any substantive due process right to a return of the 

funds they paid. See Reply Brief 1–2; Tr. of Oral Arg. 18– 

19. In the absence of any property right under state law 

(apart from the right provided by the Exoneration Act, 

which petitioners decline to invoke), Colorado’s refusal to

return the money is not a “depriv[ation]” of “property”

within the meaning of the Fourteenth Amendment. Colorado is therefore not required to provide any process at all 

for the return of that money. 

II 

No one disputes that if petitioners had never been convicted, Colorado could not have required them to pay the

money at issue. And no one disputes that Colorado cannot 

require petitioners to pay any additional costs, fees, or

restitution now that their convictions have been invalidated. It does not follow, however, that petitioners have 

a property right in the money they paid pursuant to their 

then-valid convictions, which now belongs to the State and 

the victims under Colorado law. The Court today announces that petitioners have a right to an automatic 

refund because the State has “no legal right” to that money. 

Ante, at 8, n. 11. But, intuitive and rhetorical appeal 

aside, it does not seriously attempt to ground that conclusion in state or federal law. If petitioners’ supposed right 

to an automatic refund arises under Colorado law, then 

the Colorado Supreme Court remains free on remand to

clarify whether that right in fact exists. If it arises under 

substantive due process, then the Court’s procedural due

process analysis misses the point. 

I respectfully dissent.