Hacker News Reader

IANAL either, but it sounds like Thomas is saying that the Colorado Exoneration Act was carefully written to specifically cover cases like this in that it enumerated the rights and entitlements of those exonerated who follow that process, and the court's majority opinion "does not seriously attempt to ground [their opposite] 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."

This is an archetypally typical Thomas opinion, melding both a very literal and narrow reading of the Constitution and laws with a strong preference towards states' rights.

Meanwhile, Alito's concurring (with the majority) opinion is a fascinating read in its own right, building on similar rationales to those of Thomas while using a comparative, devil's advocate approach to illustrate absurdities in both the laws and the interpretation of the majority, yet reaching a pragmatic conclusion that happens to concur with the majority in its final judgment.

The escrow loss problem is a probabilistic game though, and one I'd be willing to bet that someone enterprising could offer insurance for; whether it's loans using it as capital, or actual insurance.

This is the correct answer. Exposure to future potential liabilities is a problem already solved by insurance.

Think about it this way, it's like malpractice insurance for doctors. So there should be malpractice insurance for states/courts - if a conviction is later overturned and the state is liable for the return of property, it gets paid out by insurance.

> In the rest of the dissent, Thomas discusses the due process that was available under Colorado's Exoneration Act and indicated that this law did not automatically entitle convicted persons to an automatic refund of any fees associated with their convictions, partially because state law ordered that money to be dispensed via victim compensation funds.

> This highlights a potential chilling effect of this ruling. As states are now on the perpetual hook for any monies that may be confiscated from someone who is eventually exonerated (and in the case of white-collar crime, this could be millions of dollars), and since you can't know that someone won't be exonerated in the future, states who are interested in keeping their budgets balanced will be incentivized to hold such money in escrow instead of dispensing it for victim's relief.

It seems that Thomas's dissent finds its basis in that the defendants should have followed the due process set forth in the Exoneration Act to have a substantive entitlement to the money, on the other hand in Alito's concurring opinion he quite explicitly disagrees and posits that the Exoneration Act violates due process:

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”).

It's almost as if Thomas is saying, "If we reject the CO SC's ruling (which is what SCOTUS did) then we must also say the Exoneration Act is invalid". Which I think makes sense, even though SCOTUS didn't go that far.

IANAL

He recently spoke out against civil asset forfeitures, so I wonder about the angle he took in his dissent. I'm trying to square that with this and think I just don't understand the laws to see the what it points to. I think there is a civil asset forfeiture case on the schedule, so I guess we will see then.

Justice Thomas is essentially arguing that the 14th Amendment (the "no depriving any person of life, liberty, or property, without due process of law" one) is the wrong reason to give the person a refund of their fees after an overturned conviction.

Reading the dissent, it basically says: when the person was convicted, they paid their fine, and at that point the fine money is now property of the state. The overturning of the original conviction doesn't, however, mean that the fine money also reverts ownership - he claims it is still in ownership by the state so the person cannot claim it is their property being deprived without due process under the 14th amendment.

He proposes that the "correct" way to get the money back is by invoking this other thing called "The Exoneration Act," NOT the 14th. The problem is the Exoneration Act isn't a law that says the state HAS to return funds, it's more of a specific appeal process for people to apply to get funds back. In other words, he recognizes there is no state law in Colorado that requires refunding these fees (nor does he offer a viable Federal one), but he claims there is a process available, at least.

In that sense, his dissent isn't really about him believing these people are NOT owed a refund in the moral sense of what is just, he's simply arguing that the court should not establish that refunds of costs/fines in cases where convictions are overturned is guaranteed by the 14th Amendment. It's kind of a pedantic dissent. And I still don't agree with him :)

Is the null process an available process? Why should anyone appreciate this kind of fatuous pedantry?

IANAL

The intent behind Thomas's particular brands of "fatuous pedantry" (more commonly called textualism or originalism) are preserving a maximum amount of power to the people through their representative governments.

If the people of Colorado did not see fit to provide such recourse to their exonerated ex-convicts, Thomas believes that the Constitution does not require them to do so. The Constitution merely requires equal protection under the law, and there is no law that is being applied unequally in this case; everyone is equally entitled to seek relief under the Colorado statute, which presumably represents the will of Coloradans as expressed through their state government. If Colorodans do not like this, they can enact change through their government.

When the Supreme Court acts and rules a law either valid or invalid, it's an unelected branch of the federal government imposing its will on the people. This is especially sensitive when the will is being imposed on the states. The Constitution was carefully designed to limit the reach of federal power and allow more authority to more local governments. Disputes over the extent of state's rights are no trivial matter -- they've caused our only civil war thus far.

Anyway, I've found that a great deal of judicial activity is based on highly technical issues that many would consider "fatuous pedantry". IMO it is totally reasonable to suggest a basic modernization/overhaul in our legal system. Until then, however, my experience is that "fatuous pedantry" and "law" go together so often they may as well be synonymous.

> IANAL

You're doing a thoroughly good job of playing one on HN. Thank you for a very informative analysis.

Thanks, I appreciate the kind words, and I'm glad that someone finds my take informative.

As a sibling commenter points out, it's easy to sound credible by throwing words around without really understanding the nuances. It's always nerve-wracking when someone may take you a little too seriously. I've learned I need to put two disclaimers on my "playing lawyer" posts because just one wasn't enough to avoid the ire of some people who I assume are real lawyers. ;)

And to be honest, if I were a real lawyer, I would still probably want to "IANAL" disclaim most of these speculative/navel-gazing posts anyway.

> And to be honest, if I were a real lawyer, I would still probably want to "IANAL" disclaim most of these speculative/navel-gazing posts anyway.

For that, I've seen the disclaimer "I am a lawyer, but I am not your lawyer."

IANTTE (That Type of Expert) - means, everything I say about the subject could be 100% incorrect and sound 100% accurate

:)

> dispensing it for victim's relief.

IANAL either but wouldn't the victim's relief come from a civil trial, not a criminal one?

I believe there are already processes in place that can be undertaken to delay payment on appeal. Why should criminal penalties be awarded, subject to immediate payment and then have to go through another court proceeding where the plaintiff has to prove their innocence again to get it back?

> IANAL either but wouldn't the victim's relief come from a civil trial, not a criminal one?

Many jurisdictions have victim compensation as part of criminal process, which makes some sense as an economy of justice measure, since the burden of proof against the defendant is higher in criminal trial than it would be at a civil trial (so, in principle, the defendant isn't losing any protection) and it prevents the victim from having to go through the whole process of civil litigation.