Supreme Court’s Presumption-of-Innocence Decision Should Inspire Asset-Forfeiture Reformers

supreme courtIn a US Supreme Court term filled with cases that “only a lawyer could love,” the justices did issue at least one decision in October Term 2016—Nelson v. Colorado—that any TV crime-drama viewer can understand. The decision turned on the bedrock principle that the accused is innocent until proven guilty. While Justice Ginsburg’s opinion applies directly to a Colorado law, it could prove highly influential in the ongoing debate over civil-asset forfeiture, a controversial law-enforcement practice.

The case involved Colorado’s Exoneration Act, which created a civil claim for wrongly convicted persons to pursue compensation from the state. The law only allowed compensation for those who are “actually innocent” of a felony, and the plaintiff had to establish that innocence with “clear and convincing evidence.” Two separate defendants in Colorado—one whose conviction was reversed on appeal and the other whose reversed conviction was retried unsuccessfully by the state—paid court costs, fees, and restitution totaling several thousand dollars in the course of those proceedings. A state appeals court held that the defendants were entitled to recover their property through a civil claim.

The state appealed and the Colorado Supreme Court reversed both defendants’ claims. The court reasoned that the defendants could only pursue their claims under the Exoneration Act. Because the defendants did not file for recovery under the Act, Colorado courts had no jurisdiction to hear their claims. One Colorado Supreme Court justice dissented on the ground that the Exoneration Act, by forcing individuals who are presumed innocent to establish they are not guilty in a civil proceeding, treads on due process.

The US Supreme Court reached the same conclusion, reversing the Colorado Supreme Court. The Nelson defendants merited the presumption that they were innocent because their “convictions were erased.” And because their presumption of innocence was restored, they “should not be saddled with any burden of proof,” let alone one demanding clear-and-convincing evidence. Justice Ginsburg succinctly summarized the Court’s holding:

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.

Justice Ginsburg explained that the risk of erroneous deprivation of defendants’ funds was high because the cost of mounting an Exoneration Act challenge could easily exceed the value of the property held by the state. She also added that the Act provided no recourse for those wrongfully convicted of misdemeanor offenses (one of the Nelson defendants was convicted of three misdemeanors).

As the counsel of record for an amicus brief filed in Nelson emphasized in a Volokh Conspiracy post he wrote last fall, the “tricky part” of the case was that Colorado was demanding clear-and-convincing proof of actual innocence in a civil proceeding. Criminal defendants weren’t being forced to prove their innocence in a criminal proceeding, which would be clearly unconstitutional. The Court’s decision in fact established that reversing the presumption of innocence in a civil proceeding does offend due process.

That conclusion could have far-reaching implications for law enforcement’s seizure of personal property in the course of a criminal investigation. Civil-asset-forfeiture laws allow government to take the property of those who are merely under suspicion of a crime. Such laws in effect presume the guilt of individuals whose assets are seized. People whom the state never charged with a crime must prove their innocence to secure return of their homes, vehicles, financial assets, and other property. Just like the exonerated defendants in Nelson then, civil-asset-forfeiture claimants stand before the court in the position of men and women who are presumed innocent.

At a minimum, the Supreme Court’s Nelson decision should embolden innocent victims of civil-asset-forfeiture laws to push back more vigorously against government abuses. The ruling could ultimately inspire constitutional challenges to state laws that erect procedural obstacle courses that one must traverse to simply get one’s stuff back.

Also published by Forbes.com on WLF’s contributor page.

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