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It looks like Justice Thomas wanted to write a dissent because "But both opinions bypass the most important question in these cases: whether petitioners can sho

It looks like Justice Thomas wanted to write a dissent because "But both opinions bypass the most important question in these cases: whether petitioners can show a substantive entitlement to a return of the money they paid pursuant to criminal convictions that were later reversed or vacated.". It starts on page 25 of the PDF. It is deep in procedure. It ends with the summary: No one disputes that if petitioners had never been convicted, Colorado could not have required them to pay the money at issue. And no one disputes that Colorado cannot require petitioners to pay any additional costs, fees, or restitution now that their convictions have been invalidated. It does not follow, however, that petitioners have a property right in the money they paid pursuant to their then-valid convictions, which now belongs to the State and the victims under Colorado law. The Court today announces that petitioners have a right to an automatic refund because the State has “no legal right” to that money. Ante, at 8, n. 11. But, intuitive and rhetorical appeal aside, it does not seriously attempt to ground that 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. I respectfully dissent. I'm personally glad it went the way it did, but I'm really not a law type to figure out if it went that way in a good way.

BookmarkSaver 10y ago
"The law doesn't say that they should get their money back explicitly, therefore the state is free to rob citizens blind while they have the chance with absolutely no repercussions". God I hate this judicial philosophy. If legislation was perfect we wouldn't need judges. Every gap in the legal code that some lawyers can concoct is not valid grounds for exploitation.
- bkeroack 10y ago
  > Every gap in the legal code that some lawyers can concoct is not valid grounds for exploitation. Yes it is, by definition. Advocate for better legislation, rather than expect lawyers to pinky-swear not to use whatever loopholes they find. An analogy might be: "Every bug or unescaped input in my application is not valid grounds for attackers to pwn my server! How dare they!"
  - specialist 10y ago
    What games (rulesets) cannot be broken? Where the spirit of the game cannot be violated by a strict intepretation of the rules. Tic tac toe? Rock, paper, scissors? Are you suggesting the law, any law, can ever be made so simple? https://en.wikipedia.org/wiki/Nomic https://en.wikipedia.org/wiki/Nomic
  - MereInterest 10y ago
    I'd put it a different way. It is the job of a program to be free from faults, as much as possible. It is the job of a firewall to protect programs from being exploited, as much as possible, when there are faults. It is the job of legislators to write laws that are as free from faults as possible. It is the job of judges to protect the people from unavoidable faults in legislation.
  - selfsimilar 10y ago
    Lawyers and judges are not just hardware interpreting and 'running' the 'code' of law. Law needs to be flexible to handle all manner of unsanitized inputs, and judges need to have leeway to (attempt to) serve justice and the spirit of the law. Laws that are sufficiently written to explicitly close every loop-hole or guard against all malicious 'input', would be monstrosities that no one human could ever truly know. The US tax code strikes me as something that has gone in that direction.
    - scryder 10y ago
      >Law ... monstrocities We already have that, though, and "sufficienty written" is a very dangerous standard. The easiest way to guard against "all" malicious input is write a vague law without clauses that demand mens reas, which means that regardless of whether or not you knowingly broke the law, by violating its provisions, you automatically did. The leeway to "serve justice" also tends to be the leeway to condemn justice or to interpret law in ways it was never designed to account for. The lawcomic, written by a lawyer, has a good section about the kind of overcriminalization you're discussing: http://lawcomic.net/guide/?p=1031 http://lawcomic.net/guide/?p=1031
a3n 10y ago
Thomas' opinion would seem to point to a "great" way for small municipalities and courts to raise money. Just pull people over for no reason whatsoever, give them a ticket for "enforcement goal of the week," and collect the fines as most people will pay it. If anyone eventually disputes and wins, the local govt still gets to keep the money, since they at some point in time "justly" stood guilty. Or arrest and convict people of jaywalking, or any other made up charge. As long as you have a judge that will go along with this (the communities in and near Ferguson MO are an example), it's a "great" way to collect money. Just convict them, no matter what. As civil forfeiture is increasingly scrutinized, it will not surprise me if streamlined convictions and 1 day "time served" sentences become common along lonely stretches of Interstate 80. "There, we fixed it."
- aetherson 10y ago
  If you can "just" convict people of anything no matter what, we probably have bigger problems. Not that I particularly agree with Thomas, but assuming that it's trivially easy to convict anyone you want of a criminal offense is quite a big leap. (And it doesn't just require a compliant judge -- people could always ask for jury trials).
  - a3n 10y ago
    We do have bigger problems. > The Justice Department's report said Brockmeyer approved the creation of additional fees, "many of which are widely considered abusive and may be unlawful, including several that the City has repealed during the pendency of our investigation. These include a $50 fee charged each time a person has a pending municipal arrest warrant cleared." > Just about every branch of Ferguson government -- police, Municipal Court, City Hall -- participated in "unlawful" targeting of African-American residents for tickets and fines, the Justice Department concluded. http://www.cnn.com/2015/03/09/us/ferguson-missouri-courts/index.html http://www.cnn.com/2015/03/09/us/ferguson-missouri-courts/in... It looks like it was trivially easy to come up with any scheme they wanted to collect money from people too vulnerable and poor to fight it. If the Michael Brown shooting hadn't happened, the area wouldn't have received the scrutiny it did, and my assumption is that the scheme would still be ongoing. I'm sure this happens elsewhere; the smaller the community and the more chummy the players, the easier it would be.
bkeroack 10y ago
> "...whether petitioners can show a substantive entitlement to a return of the money they paid pursuant to criminal convictions that were later reversed or vacated." In other words, the petitioners can't prove that they have a legal right to a refund. Apparently there is no Colorado law saying that if your conviction is overturned, the state will refund those fees. That would be a fairly easy legislative fix, rather than inventing the right from thin air via this majority SCOTUS decision.
- MaxfordAndSons 10y ago
  > That would be a fairly easy legislative fix, rather than inventing the right from thin air via this majority SCOTUS decision. Sure, but there's probably no incentive for legislatures to implement this fix. The loophole enriches their constituent law enforcement organizations, while also relaxing their budgetary needs. And most private citizens probably aren't going to care much either way, especially since the loophole can be framed as pro-law and order. So if the law as written is encouraging abusive behavior from law enforcement, and the legislative incentives are misaligned to prevent the easy fix, how else could it get fixed?
  - bkeroack 10y ago
    > Sure, but there's probably no incentive for legislatures to implement this fix The incentive is the same as the incentive for them to do anything: democratic process and popular pressure. If this is such a no-brainer it should have wide support among Colorado voters. This is much better than having unelected federal judges thousands of miles away declare the issue by fiat. > The loophole enriches their constituent law enforcement organizations A. It's not a "loophole", it's simply the lack of any explicit law directing refunds. B. I'm not familiar with Colorado state finances, but I seriously doubt that refunds from vacated convictions would have any significant budgetary impact at all. > ...if the law as written is encouraging abusive behavior from law enforcement Again, this isn't "abusive behavior". It's simply lack of a law authorizing what the petitioners demand. I wouldn't be surprised if it was simply that nobody thought to write and pass the law, given the relative rarity of vacated convictions.
AnimalMuppet 10y ago
If I understand correctly (and IANAL), that dissent does not leave room for civil asset forfeiture.
clarkmoody 10y ago
A similar situation to consider: drug law repeal. Let's assume some drug law is relaxed in the future. Do all prisoners currently serving sentences get released automatically? I don't think so, since they were convicted and sentenced under current law. I believe it would take an additional act of the legislature to release those prisoners. (This Supreme Court ruling seems to make this step unnecessary in the case of money+overturned conviction) And let's not forget that they won't get anything for the years and opportunity lost while in prison for things that are no longer crimes.
- pishpash 10y ago
  You seem to be confused about an overturn based on appeal vs. ex post facto application of law.
dtrizzle 10y ago
Thomas’s dissent is not about whether as a policy matter, someone should receive their money back. I suspect everyone thinks the Petitioners’ should get refunds. Rather, it’s about whether the Due Process Clause of the Fourteenth Amendment provides that right. In his view, based on previous precedent, it does not. As a matter of previous precedent, the majorities approach is somewhat legally strained based on the Due Process Clause. But as a matter of policy, the majority's decision seems correct.

BookmarkSaver 10y ago

"The law doesn't say that they should get their money back explicitly, therefore the state is free to rob citizens blind while they have the chance with absolutely no repercussions". God I hate this judicial philosophy. If legislation was perfect we wouldn't need judges. Every gap in the legal code that some lawyers can concoct is not valid grounds for exploitation.

bkeroack 10y ago
> Every gap in the legal code that some lawyers can concoct is not valid grounds for exploitation. Yes it is, by definition. Advocate for better legislation, rather than expect lawyers to pinky-swear not to use whatever loopholes they find. An analogy might be: "Every bug or unescaped input in my application is not valid grounds for attackers to pwn my server! How dare they!"
- specialist 10y ago
  What games (rulesets) cannot be broken? Where the spirit of the game cannot be violated by a strict intepretation of the rules. Tic tac toe? Rock, paper, scissors? Are you suggesting the law, any law, can ever be made so simple? https://en.wikipedia.org/wiki/Nomic https://en.wikipedia.org/wiki/Nomic
- MereInterest 10y ago
  I'd put it a different way. It is the job of a program to be free from faults, as much as possible. It is the job of a firewall to protect programs from being exploited, as much as possible, when there are faults. It is the job of legislators to write laws that are as free from faults as possible. It is the job of judges to protect the people from unavoidable faults in legislation.
- selfsimilar 10y ago
  Lawyers and judges are not just hardware interpreting and 'running' the 'code' of law. Law needs to be flexible to handle all manner of unsanitized inputs, and judges need to have leeway to (attempt to) serve justice and the spirit of the law. Laws that are sufficiently written to explicitly close every loop-hole or guard against all malicious 'input', would be monstrosities that no one human could ever truly know. The US tax code strikes me as something that has gone in that direction.
  - scryder 10y ago
    >Law ... monstrocities We already have that, though, and "sufficienty written" is a very dangerous standard. The easiest way to guard against "all" malicious input is write a vague law without clauses that demand mens reas, which means that regardless of whether or not you knowingly broke the law, by violating its provisions, you automatically did. The leeway to "serve justice" also tends to be the leeway to condemn justice or to interpret law in ways it was never designed to account for. The lawcomic, written by a lawyer, has a good section about the kind of overcriminalization you're discussing: http://lawcomic.net/guide/?p=1031 http://lawcomic.net/guide/?p=1031

a3n 10y ago

Thomas' opinion would seem to point to a "great" way for small municipalities and courts to raise money. Just pull people over for no reason whatsoever, give them a ticket for "enforcement goal of the week," and collect the fines as most people will pay it. If anyone eventually disputes and wins, the local govt still gets to keep the money, since they at some point in time "justly" stood guilty. Or arrest and convict people of jaywalking, or any other made up charge. As long as you have a judge that will go along with this (the communities in and near Ferguson MO are an example), it's a "great" way to collect money. Just convict them, no matter what. As civil forfeiture is increasingly scrutinized, it will not surprise me if streamlined convictions and 1 day "time served" sentences become common along lonely stretches of Interstate 80. "There, we fixed it."

aetherson 10y ago
If you can "just" convict people of anything no matter what, we probably have bigger problems. Not that I particularly agree with Thomas, but assuming that it's trivially easy to convict anyone you want of a criminal offense is quite a big leap. (And it doesn't just require a compliant judge -- people could always ask for jury trials).
- a3n 10y ago
  We do have bigger problems. > The Justice Department's report said Brockmeyer approved the creation of additional fees, "many of which are widely considered abusive and may be unlawful, including several that the City has repealed during the pendency of our investigation. These include a $50 fee charged each time a person has a pending municipal arrest warrant cleared." > Just about every branch of Ferguson government -- police, Municipal Court, City Hall -- participated in "unlawful" targeting of African-American residents for tickets and fines, the Justice Department concluded. http://www.cnn.com/2015/03/09/us/ferguson-missouri-courts/index.html http://www.cnn.com/2015/03/09/us/ferguson-missouri-courts/in... It looks like it was trivially easy to come up with any scheme they wanted to collect money from people too vulnerable and poor to fight it. If the Michael Brown shooting hadn't happened, the area wouldn't have received the scrutiny it did, and my assumption is that the scheme would still be ongoing. I'm sure this happens elsewhere; the smaller the community and the more chummy the players, the easier it would be.

bkeroack 10y ago

> "...whether petitioners can show a substantive entitlement to a return of the money they paid pursuant to criminal convictions that were later reversed or vacated." In other words, the petitioners can't prove that they have a legal right to a refund. Apparently there is no Colorado law saying that if your conviction is overturned, the state will refund those fees. That would be a fairly easy legislative fix, rather than inventing the right from thin air via this majority SCOTUS decision.

MaxfordAndSons 10y ago
> That would be a fairly easy legislative fix, rather than inventing the right from thin air via this majority SCOTUS decision. Sure, but there's probably no incentive for legislatures to implement this fix. The loophole enriches their constituent law enforcement organizations, while also relaxing their budgetary needs. And most private citizens probably aren't going to care much either way, especially since the loophole can be framed as pro-law and order. So if the law as written is encouraging abusive behavior from law enforcement, and the legislative incentives are misaligned to prevent the easy fix, how else could it get fixed?
- bkeroack 10y ago
  > Sure, but there's probably no incentive for legislatures to implement this fix The incentive is the same as the incentive for them to do anything: democratic process and popular pressure. If this is such a no-brainer it should have wide support among Colorado voters. This is much better than having unelected federal judges thousands of miles away declare the issue by fiat. > The loophole enriches their constituent law enforcement organizations A. It's not a "loophole", it's simply the lack of any explicit law directing refunds. B. I'm not familiar with Colorado state finances, but I seriously doubt that refunds from vacated convictions would have any significant budgetary impact at all. > ...if the law as written is encouraging abusive behavior from law enforcement Again, this isn't "abusive behavior". It's simply lack of a law authorizing what the petitioners demand. I wouldn't be surprised if it was simply that nobody thought to write and pass the law, given the relative rarity of vacated convictions.

AnimalMuppet 10y ago

If I understand correctly (and IANAL), that dissent does not leave room for civil asset forfeiture.

clarkmoody 10y ago

A similar situation to consider: drug law repeal. Let's assume some drug law is relaxed in the future. Do all prisoners currently serving sentences get released automatically? I don't think so, since they were convicted and sentenced under current law. I believe it would take an additional act of the legislature to release those prisoners. (This Supreme Court ruling seems to make this step unnecessary in the case of money+overturned conviction) And let's not forget that they won't get anything for the years and opportunity lost while in prison for things that are no longer crimes.

pishpash 10y ago
You seem to be confused about an overturn based on appeal vs. ex post facto application of law.

dtrizzle 10y ago

Thomas’s dissent is not about whether as a policy matter, someone should receive their money back. I suspect everyone thinks the Petitioners’ should get refunds. Rather, it’s about whether the Due Process Clause of the Fourteenth Amendment provides that right. In his view, based on previous precedent, it does not. As a matter of previous precedent, the majorities approach is somewhat legally strained based on the Due Process Clause. But as a matter of policy, the majority's decision seems correct.