Liberty, Property, Liberals, and Conservatives

By Sherry Colb

In my column for this week, I analyze the U.S. Supreme Court case of Nelson v. Colorado.  The case itself is about a defendant's claim that after her conviction was reversed, she suffered a violation of her procedural due process rights when the trial court refused to order the State to refund the money (in the form of costs and fees) that was taken from her pursuant to the conviction.  I propose in my column that we can best understand what is at stake in the case by thinking about the difference between compensating a wrongfully convicted defendant for time spent in prison, on the one hand, and releasing the wrongfully convicted defendant, on the other.  In this post, I want to focus on how we might think differently about liberty and property in the context of erroneous convictions.

In Nelson, the issue before the Court is how to deal with property--money that used to belong to the defendant but that was taken from her to cover costs and fees that are charged only to defendants if and when they have been convicted.  The State of Colorado claims that once the money is validly taken from the defendant after a conviction, the money becomes the property of the State, and the State can decide whether and through what procedures the defendant may regain custody of that property.  The defendant claims that once the conviction is invalidated, the money reverts to being her property and the State accordingly owes the defendant a simple procedure through which she may bring a motion and regain custody of that property.  In my column, I side with the defendant and suggest that she is entitled to her money back just as she is entitled (and received) her liberty back.  I propose an analogy between her money and her liberty to explain the competing characterizations of the money by Nelson and by the State of Colorado.

At one point in oral argument, Justice Breyer draws a strong analogy between deprivations of money and deprivations of liberty by posing a hypothetical example involving a corporation, where the only kind of punishment available is monetary, since a corporation may not be incarcerated.  The analogy is useful and informative, I think.  But how far does it go?  In reading the transcript of oral argument, I have the impression that the liberal justices plus perhaps Chief Justice Roberts and Justice Kennedy may be sympathetic to the defendant's position.  The liberals may be predictably pro-criminal-defendant but what explains the conservatives?  One possibility (though I acknowledge that this is just a guess) is that because property is at stake, the conservatives are more sympathetic than they might be if it were the defendant's liberty on the line.

Of course, the conservative Justices value liberty, not just property, but liberty tends to arise in cases in which a criminal defendant has likely committed serious harm for which she seeks to avoid punishment.  Property, in contrast, arises in all sorts of contexts, many having nothing to do with criminality, and the conservatives care a great deal about property in such contexts, particularly in the Takings Clause area.  Interestingly, at one point during oral argument in Nelson, Chief Justice Roberts asked the Colorado Solicitor General why the regime in place in Colorado is not a violation of the Takings Clause.  I cannot help but wonder whether the conservative Justices are overlooking the fact that the case involves a criminal defendant (and one alleged to have sexually abused her own children, no less) and thinking about it as a property case, where the government is claiming a right to keep property that rightfully belongs to a private individual.

It is in the context of property and the distribution of wealth where liberals and conservatives tend to part ways.  Liberals believe that while people are entitled to their property, there ought to be redistribution of financial resources from the most well-to-do to those who are in poverty.  Liberals thus do not consider the fact that someone owns a particular amount of wealth sacred in the way that conservatives do, and liberals are accordingly more willing to separate a private individual from some of his wealth and to do so through the government.  Conservatives view the government with suspicion when it is trying to take money from private people or to regulate how people might spend their money (for example, in political contributions).  Liberals are more trusting of government in this arena.

Traditionally, though, conservatives become more trusting of government when it comes to criminalizing conduct and dealing with criminal defendants.  Conservatives are especially comfortable with government when it is being punitive with a person who appears very likely to be guilty of a crime.  A convict, for example, who is claiming that his trial was unfair (but unfair in a way that does not make him likely to be innocent) will have a difficult time garnering the sympathy of traditional conservatives in most cases.  This is a generalization, of course, but it does--in general--hold true.

Yet in Nelson, we have a case in which a criminal defendant who allegedly committed sexual abuse of her children claims a right to have her money returned to her by the State of Colorado.  She is not seeking liberty (because she is already free) and so she is possibly not triggering the worry of conservatives that guilty people might go free.  She is instead seeking to get back money that used to be hers and that would continue to be hers were it not for a conviction that has since been invalidated. To compound the positive conservative triggers, the government is claiming not only that it has provided enough process to the defendant (by giving her a proceeding at which she can prove her innocence by clear and convincing evidence in order to get back her money) but that it could, if it wished, just keep her money for itself and rely on state sovereign immunity to avoid being sued for its recovery.  This seems like a confiscation of property by the government from an individual, something that makes conservatives angry.

Because this case has elements of both criminal procedure cases, which trigger liberals' sympathy, and property confiscation cases, which trigger conservatives' sympathy, I think Nelson has a good chance of succeeding in the U.S. Supreme Court.  And this is in many ways strange, because--as both conservatives and liberals would agree--it is far worse to incarcerate someone who does not belong in prison than it is to take about $700 away from that person when she is entitled to keep the money.