Russell Hebets May 9, 2017

In a 7-1 opinion in March of this year, the court ruled that the current scheme in Colorado for exonerated defendants is unconstitutional and that it specifically violated 14th Amendment due process.

Nelson v. Colorado challenged a Colorado law which stated that if a convicted person was exonerated on appeal (or some other type of post-conviction relief) they still had to prove their innocence in a civil proceeding in order to collect compensation for their expenses. In most states, exoneration leads to a refund of any payments a convicted person had to make related to their conviction.


The petitioners in the case were a woman and a man who were each convicted in separate cases on assault charges. In both cases their convictions were reversed on appeal. At this point, each had paid some restitution and a variety of fees related to their conviction. This included expenses such as the Victim Compensation fund, a Law Enforcement fund, docket fees, drug test fees, and genetic testing for sex offenders’ fees. In both cases, the defendants asked the trial court for refunds of the costs they had paid, and in both cases they were denied and told they had to prove their innocence in a civil proceeding. They both appealed.

The Colorado Court invoked a law known as the Exoneration Act, which states that in order to receive compensation for an overturned conviction, you have to prove innocence. However, this law was intended to compensate people who had been wrongly convicted, not just for what they paid in, but for the time they lost in their lives for being incarcerated.Originally this law, unique to Colorado, was praised for finally giving the wrongly incarcerated their due. But the question that emerged here was whether or not the law applied to refunding a person’s costs when they are exonerated and not seeking any additional compensation. The law also seemed to undercut a basic premise of the 14th Amendment which is that the burden of proving your innocence is not on you.

House Bill 1071

While the Supreme Court was looking at this case, a bill was moving through the Colorado House that would resolve this issue in the state. House Bill 1071, which was signed by Governor Hickenlooper in March, approved refunding exonerated defendants their costs without a civil proceeding. The bill had bipartisan support and the approval of the Colorado Sheriff’s Association. Regardless of how the highest court ruled, the Colorado legislature was addressing the issue.

However, now that the highest court in the land has weighed in, we have a clear guideline for how to compensate those exonerated which reinforces the constitutional right to due process. If one is really innocent until proven guilty then an exonerated person should not have to keep proving their innocence. Seven of the justices agreed with the ruling and Justice Ginsburg delivered the opinion. Justice Alito filed a concurring opinion, meaning he agreed but for different reasons, and Justice Thomas dissented. Justice Gorsuch, the newly appointed court member from Colorado took no part in the decision.