1 (Slip Opinion) OCTOBER TERM, 2016

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 conv icted by a Colorado jury of two

felonies and three misdemeanors ar ising 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 re

versed 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. Af

ter one of Madden’s convictions was reversed on direct review and the other vacated on postconviction re view, the State elected not to ap

peal or retry the case.

The Colorado Department of Corrections withheld $702.10 from
Nelson’s inmate account between he r 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 pe titioners 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 resti

tution. The Colorado Court of Appe als concluded that both petition

ers were entitled to seek refunds of all they had paid, but the Colora

do Supreme Court reversed. It reasoned that Colorado’s Compensation for Certain Exonerat ed 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 proc ess problem under the Act, which permits Colorado to retain conviction-related assessments unless and until the prevailing defendant instit utes a discrete civil proceeding and proves her innocence by clear and convincing evidence.

Held : The Exoneration Act’s scheme does not comport with the Four

teenth Amendment’s guarantee of due process. Pp. 5–11.

(a) The procedural due proc ess 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 proper ty after a conviction has been re

versed or vacated, with no prospect of reprosecution. Pp. 5–6.

(b) The three consider ations 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 Madde n’s convictions were in place when the funds were taken, for on ce those convictions were erased, the presumption of innoce nce was restored. See, e.g. , Johnson v. Mis

sissippi , 486 U. S. 578, 585. And Colorado may not presume a per

son, adjudged guilty of no crime, nonetheless guilty enough for mone

tary exactions. Pp. 6–8. (2) Colorado’s scheme creates an unacceptable risk of the errone

ous deprivation of defendants’ prop erty. The Exoneration Act condi

tions refund on defendants’ proof of innocence by clear and convinc

ing evidence, but defendants in pe titioners’ position are presumed innocent. Moreover, the Act provides no remedy for assessments tied
to invalid misdemeanor convictions. And when, as here, the recoup

ment amount sought is not large, the cost of mounting a claim under the Act and retaining counsel to pu rsue it would be prohibitive.

Colorado argues that an Act th at 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 compensa

tion for its temporary deprivation. Just as restoration of liberty on reversal of a conviction is not comp ensation, neither is the return of money taken by the State on accoun t of the conviction. Other proce

dures cited by Colorado—the need for probable cause to support crim

inal charges, the jury-trial right, and the State’s burden to prove guilt beyond a reasonable doubt—do not address the risk faced by a3 Cite as: 581 U. S. ____ (2017)

Syllabus

defendant whose conviction has been overturned that she will not re

cover funds taken from her based solely on a conviction no longer val

id. Pp. 8–10.

(3) Colorado has no interest in withholding from Nelson and Mad

den money to which the State currentl y has zero claim of right. The State has identified no equitable co nsiderations favoring its position, nor indicated any way in which th e Exoneration Act embodies such
considerations. P. 10.
362 P. 3d 1070 (first judgment) and 364 P. 3d 866 (second judgment),

reversed and remanded.

G INSBURG

, J., delivered the opinion of the Court, in which R OBERTS

, C. J., and K ENNEDY , B REYER , S OTOMAYOR

, and K AGAN , JJ., joined.
A LITO

, J., filed an opinion concurring in the judgment. T HOMAS , J., filed a dissenting opinion. G ORSUCH

, J., took no part in the consideration or
decision of the cases._________________

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

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, Wash

ington, 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]

J USTICE G INSBURG delivered the opinion of the Court.
When a criminal conviction is invalidated by a review

ing 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 inno

cence 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 resti

tution totaling $ 8,192.50 . 362 P. 3d, at 1071. On appeal,
Nelson’s conviction was re versed 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 attempti ng to patronize a prostituted child and attempted third-degree sexual assault by force. See 364 P. 3d 866, 867 (Colo. 2015). The trial court im

posed an indeterminate prison sentence and ordered Madden to pay costs, fees, and restitution totaling $ 4,413.00

. Ibid. The Colorado Supreme Court reversedone 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 fees 1 and $414.60 to restitution. See 362 P. 3d, at 1071, and

n. 1. Following Madden’s conviction, Madden paid Colo

rado $ 1,977.75 , $1,220 of which went to costs and fees 2 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,

——————

1 Of the $287.50 for costs and fees, $1 25 went to the victim compensa

tion fund and $162.50 to the victims and witnesses assistance and law enforcement fund (VAST fund). S ee 362 P. 3d 1070, 1071, n. 1 (Colo. 2015).

2 Of the $1,220 for costs and fees, $125 went to the victim compensa

tion fund and $1,095 to the VAST fund ($1,000 of which was for the special advocate surcharge). See A pp. 79; 364 P. 3d 866, 869 (Colo. 2015).

3 See Colo. Rev. Stat. §24–4.1–119(1)(a) (2005) (levying victim

compensation-fund fees for “each crim inal action resulting in a convic

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

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 restitu

tion. 364 P. 3d, at 867–868. The same Colorado Court of Appeals panel heard both
cases and concluded that Nelson and Madden were enti

tled 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 restitu

tion, 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. Colo

rado’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, “pro

vides the proper procedure for seeking a refund,” the court ruled. 362 P. 3d, at 1075, 1077. As no other statute ad

dresses refunds, the court concluded that the Exoneration Act is the “exclusive process for exonerated defendants

—————— “[e]very order of conviction . . . sh all include consideration of restitu

tion”). See also 362 P. 3d, at 1073 (“[T]he State pays the cost of crimi

nal cases when a defendant is acquit ted.” (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 Mad

den ). Due process therefore requires some mechanism “for the return of a defendant’s money,” Justice Hood main

tained, 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 “tocompensate 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

——————

4 While 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.

5 Prior to the Exoneration Act, th e Colorado Supreme Court recog

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

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 peti tioner must show, by clear and convincing evidence, her actual innocence of the of

fense of conviction. §§13–65–101(1), 13–65–102(1). A successful petitioner may recoup, in addition to compensa

tion 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 legislatio n, as just recounted, a de

fendant 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 du e process. Accordingly, we reverse the judgment of the Supreme Court of Colorado.

II
The familiar procedural due pr ocess 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 princi

ple of justice. Medina “provide[s] the appropriate frame

work 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

——————

6 Compensation 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 offe nder registry; compensation for child support payments due during incarc eration; tuition waivers at state institutions of higher education fo r the exonerated person and for any children conceived or legally adop ted 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 eviden ce qualifying as admissible. 7 These cases, in contrast, concern the continuing depriva

tion 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) (R OBERTS

, 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 regain

ing the money they paid to Colorado. Colorado urges, however, that the funds belong to the State because Nel

son’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 inno

cence was restored. See, e.g. , Johnson v. Mississippi , 486
U. S. 578, 585 (1988) (After a “conviction has been re

versed, unless and until [the defendant] should be retried,

——————

7 See 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 in competence to stand trial).7 Cite as: 581 U. S. ____ (2017)

Opinion of the Court

he must be presumed inno cent of that charge.”). 8 “[A]xiomatic and elementary,” the presumption of inno

cence “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 inconse

quential. 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 restitu

tion. Now suppose the trial court enters judgment on a guilty verdict, ordering cost, fee, and restitution payments

——————

8 Citing Bell v. Wolfish , 441 U. S. 520 (1979), Colorado asserts that “[t]he presumption of innocence a pplies 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 de tainee 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 “detai n[ing a defendant] to ensure his presence at trial . . . so long as [t he] conditions and restrictions [of his detention] do not amount to puni shment, or otherwise violate the
Constitution.” Id. , at 536–537.

9 Were 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.

10 Colorado invites a distinction be tween convictions merely “void

able,” 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 disse nt, however, “reversal is reversal,” regardless of the reason, “[a]nd an inva lid 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 defend

ant? “[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 th e 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

——————

11 The dissent echoes Colorado’s argument. If Nelson and Madden prevailed at trial, the di ssent agrees, no costs, f ees, or restitution could
be exacted. See post , at 6. But if they prevailed on appellate inspec

tion, 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 convic

tions, does the Exoneration Act affo rd 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 compensa

tion 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 re versal 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 depri

vation of property. Id. , at 31; see id. , at 31–35. But Colo

rado misperceives the risk at issue. The risk here involved is not the risk of wrongful or invalid conviction any crimi

nal defendant may face. It is, instead, the risk faced by a
defendant whose conviction has already been overturned

——————

12 A successful petitioner under the Exoneration Act can recover rea

sonable 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 justexplained, the Exoneration Act is not an adequate remedy for the property depriv ation 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 be

cause 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 subse

quently invalidated.

——————

13 Colorado additionally argues that defendants can request a stay of sentence pending appeal, thereby reducing the risk of erroneous depri

vation. See Brief for Respondent 32; §§16–12–103, 18–1.3–702(1)(a) (2016). But the State acknowledged at oral argument that few defend

ants can meet the requirements a st ay 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 whol e or any part of the . . . costs.” Colo. App. Rule 8.1(a)(3) (2016).11 Cite as: 581 U. S. ____ (2017)

Opinion of the Court

* * *
The judgments of the Colorado Supreme Court are reversed, and the cases are remanded for further proceed

ings not inconsistent with this opinion.

It is so ordered.

J USTICE G ORSUCH took no part in the consideration or
decision of these cases._________________

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

A LITO

, 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]

J USTICE A LITO , 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 pro

vided by Medina v. California , 505 U. S. 437 (1992). Me

dina 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 inno

cence. And since the Court demands that refunds occur either automatically or at le ast without imposing anything more than “minimal” procedures, see ante , at 10, it ap

pears that they must generally occur as part of the crimi

nal 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 footnote2 NELSON v. COLORADO

A LITO

, J., concurring in judgment

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

, 571 U. S. ___, ___, n. 4 (2014) (opinion of R OBERTS

, 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 proce

dural 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 touchsto ne for constitutional analy

sis,’ ” 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 Crim

inal 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 balanc

ing test set out in Mathews v. Eldridge , 424 U. S. 319 (1976), a modern invention “first conceived” to decide what procedures the government mu st 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 States3 Cite as: 581 U. S. ____ (2017)

A LITO

, J., concurring in judgment

have considerable expertise in matters of criminal proce

dure 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 fr amework 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., North

western 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. Th e Court’s discussion of the issue, which is dictum, is substantially in complete. The Court suggests that
Medina would support its judgment be cause the presumption of inno

cence 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 restor ed. Notably, the Court cites not a single case applying the presum ption of innocence in the refund context. At the same time, the Court ignores cases that bear directly on the question in these cases and t hus must be part of a proper Medina inquiry. See infra , at this page and 4–5.4 NELSON v. COLORADO

A LITO

, 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, de

fendants could recover fines and monetary penalties as

sessed 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 Proceed

ing, 26 A. L. R. 1523, 1532, §VI(a) (1923) (“When a judg

ment 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 recove ry, 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 discre

tion.’ ” 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 neces

sarily a matter of right”); Annot., 26 A. L. R., at 1532, §VI(a) (Restitution for fines upon reversal of a conviction5 Cite as: 581 U. S. ____ (2017)

A LITO

, J., concurring in judgment

“is not a matter of strict legal right, but rather one for the
exercise of the court’s discre tion”). The central question courts have asked is whether “the possessor will give offense to equity and good cons cience if permitted to retain [the successful appellant’s money].” Atlantic Coast Line

, supra , at 309. This history supports the Court’s rejection of the Colo

rado Exoneration Act’s procedures. The Act places a heavy burden of proof on defendants, provides no oppor

tunity for a refund for defendants (like Nelson) whose misdemeanor convictions are reversed, and excludes de

fendants whose convictions are reversed for reasons unre

lated to innocence. Brief for Respondent 8, 35, n. 18. These stringent requirements all but guarantee that most
defendants whose convictions are reversed have no realis

tic 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 pre

vents 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 Exon

eration 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

A LITO

, J., concurring in judgment

III
Although long-established pr actice 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 pre

sumption of their innocence and that “Colorado may not presume a person, adjudged guilty of no crime, nonethe

less 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 convic

tion? 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 loss es that result from convic

tion and imprisonment, such as attorney’s fees, lost in

come, and damage to reputation. The Court cannot con

vincingly 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 compensa

tion for the economic consequences of a reversed convic

tion very differently from the refund of fines and other payments made by a defendant pursuant to a criminal judgment. Statutes providing compensation for time

——————

2 The Court’s position is also at odds with other principles of our pro

cedural due process jurisprudence. It is well settled, for example, that a plaintiff who is deprived of proper ty with inadequate process is not entitled to be compensated if the defendant can prove the deprivation “would have occurred even if [the pl aintiff] 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.7 Cite as: 581 U. S. ____ (2017)

A LITO

, 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 inno

cence (and, sometimes, more). King , supra , at 1110 (“The burden of proving innocence in the compensation proceed

ing 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 “re

quire 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 t hat 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 simila r statutes designed narrowly to compensate those few persons who can demonstrate that they are truly innocent. The Court apparently acknowledges that these statut es 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 particu

larly 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 and8 NELSON v. COLORADO

A LITO

, J., concurring in judgment

court costs. Ante , at 1. This conclusion is not supported by historical practice, and it overlooks important differ

ences 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 restit ution need not be established beyond
a reasonable doubt or in acco rdance 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 restitu

tion, but they merit attention. Because a restitution order is much like a civil judgment, the reversal of the defend

ant’s criminal conviction does not necessarily undermine the basis for restitution. Suppose that a victim successfully sues a criminal defendant civilly and introduces the de

fendant’s criminal conviction on the underlying conduct as (potentially preclusive) eviden ce 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 due9 Cite as: 581 U. S. ____ (2017)

A LITO

, 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 Colo rado 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 explai n) why that formal distinc

tion 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 dec lined to require reimburse

ment, 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 treat

ment of restitution is not gr ounded in any historical anal

ysis, 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

——————

3 The Court cites one intermediate a ppellate 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

A LITO

, 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 re fund? 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._________________

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

T HOMAS

, 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]

J USTICE T HOMAS , dissenting.
The majority and concurring opinions debate whether the procedural due pr ocess framework of Mathews v. Eldridge , 424 U. S. 319 (1976), or that of Medina v. Cali

fornia , 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 ri ght 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 peti

tioners have a substantive entitlement to the money. Colorado concedes that “if [petitioners] have a presententitlement” 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 to2 NELSON v. COLORADO

T HOMAS

, 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 entitle

ment 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 mone y 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 , with

out due process of law.” U. S. Const., Amdt. 14, §1 (em

phasis added). 1 To show that Colorado has violated the

——————

1 As I have previously observed, the Due Process Clause may have originally been understood to requir e only “that our Government . . . proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provis ions”—before depriving someone of life, liberty, or property. Johnson v. United States , 576 U. S. ___, ___ (2015) (T HOMAS , J., concurring in judgment) (slip op., at 17) (quoting
Hamdi v. Rumsfeld , 542 U. S. 507, 589 (2004) (T HOMAS , 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 base line procedures regardless of the provisions of Colorado law.3 Cite as: 581 U. S. ____ (2017)

T HOMAS

, J., dissenting

Constitution’s procedural guarantees, as relevant here, petitioners must first establish that they have been de

prived 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 quota

tion marks omitted)). “Because the Constitution protects rather than creates property interests, the existence of a property interest is determin ed 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 inter

est 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 convi ctions, 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 hold

ings in these cases is that moneys lawfully exacted pursu

ant to a valid conviction become public funds (or the vic

-4 NELSON v. COLORADO

T HOMAS

, 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 Co lorado 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.

——————

2 More specifically, the Exoneration Act entitles an exonerated de

fendant to compensation if he was convicted of a felony, was incarcer

ated, and, among other requirements , can prove by clear and convinc

ing evidence that he is “actually i nnocent,” meaning th at his “conviction
was the result of a misca rriage of justice” or that he is factually inno

cent. Colo. Rev. Stat. §§13–65–101(1)(a), 13–65–102(1)(a) (2016); see5 Cite as: 581 U. S. ____ (2017)

T HOMAS

, J., dissenting

§§13–65–101, 13–65–102 (2016). It is the Exoneration Act alone which defines the scope of the substantive entitle

ment. This Court has interpreted the Due Process Clause to require that the States pr ovide certain procedures, such as notice and a hearing, by which an individual can prove a substantive entitlement to (or defend against a depriva

tion of ) property. But the Claus e, 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 invali

dated. 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 restitu

tion 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, peti tioners’ asserted right to an automatic refund must arise, if at all, from the Due Pro

cess 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 co mpensation under the Act.” Ibid.6 NELSON v. COLORADO

T HOMAS

, J., dissenting

811 (2010) (T HOMAS , 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 disa

vow 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 pr operty 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. Colo

rado 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 con

victed, 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 an

nounces 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 conclu

sion 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.