Access to Justice; Criminal Law; Constitutional Law; Wrongful Convictions; Remedies; Damages; Criminal Procedure; Fourteenth Amendment; Procedural Due Process; Due Process Clause; Supreme Court; Colorado; Exoneration Act


The end result in Nelson will satisfy nearly everyone’s sense of basic justice, at least insofar as the monetary refund is concerned. Still, the case is interesting not for its outcome but because the Court’s analysis touches on, but fails to fully engage with, subtle and difficult questions of constitutional law. This Article examines three important aspects of the case—outside of the procedural due process balancing question—that receive little, if any, attention in the Court’s opinion. Part I shows that the Court’s procedural due process analysis skips over the logical first step and doctrinally harder question of whether Nelson had a constitutionally protected property interest once Colorado took the money pursuant to her conviction. On this point, Justice Ginsburg seems to set aside the Court’s previously settled doctrine about the nature and source of property protected by the Due Process Clause. Instead, the Court opts for an ad hoc definition of property, perhaps because application of the settled doctrine may have allowed Colorado to keep the money, a result which seven Justices very much wanted to avoid. Part II argues that the Court could have and should have taken a different analytical pathway toward the outcome it reached. In particular, Part II describes a rationale for reversal that would have resulted in return of the money without sowing confusion in Fourteenth Amendment doctrine. This analysis hinges on the rules governing Supreme Court review of state court judgments. Ordinarily, the Court will not examine the state law grounds for a state court’s decision in such cases. An exception to this rule exists, however, for cases in which the relied-upon state law undermines federal rights and lacks fair support in prior state law. The Supreme Court could readily have found that the Colorado court’s interpretation of the Exoneration Act met the requirements of this exception, thus allowing the Court to reverse the lower court’s judgment without relying upon a new and controversial notion of the meaning of property. Part III turns to the Court’s distinction between deprivations of property and liberty. Nelson holds that “[t]o 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.” Some of Justice Ginsburg’s reasoning strongly suggests that there is no due process right to obtain redress for the lost liberty. Yet the Fourteenth Amendment seems to draw no such distinction between liberty and property. It guarantees “due process” when the state deprives a person of “life, liberty, or property.” Part III asks whether there are grounds upon which a backward-looking money-damages remedy can be justified for the deprivation of property alone, or whether the liberty/property distinction is simply an arbitrary one.


Law; Criminal Law; Criminal Procedure; Supreme Court of the United States; Constitutional Law; Fourteenth Amendment; Legal Remedies