>Part of Thomas's dissent seems based in the fact that Nelson and Madden had been convicted, so at that point in time the state was entitled to those fees, and

>Part of Thomas's dissent seems based in the fact that Nelson and Madden had been convicted, so at that point in time the state was entitled to those fees, and that the fees went into the public pool. The later overturn of convictions didn't change the fact that the state was at one point entitled. I think it's an interesting argument. But I think you also have to consider why the money is considered to be "in the public pool", and whose interests are at stake when it is. It is clearly in the defendant's interest that the money is still considered a taking as long as he is alive. It is only in the state's interest in the event that the defendant is exonerated or in the case that the money must be tracked explicitly. It is an observational fact that some convicts will be exonerated. It seems therefore that the interest of the state must outweigh the interests of exonerated defendants in order for us to assume the money can be considered only as part of the public pool after it is taken. When we ask whether it is a compelling interest that the state be able to retain money from vacated convictions or that all convicted money be tracked, it seems that this would be the case only if the state's financial status were dependent on money obtained from criminal convictions. Such a state would seem to resemble pre-civilized governments and it is this assumption that I reject with due horror. The state must not be an organism dependent on judicial takings.