Originally uploaded at SSRN.


This article examines the U.S. Supreme Court’s Nelson v. Colorado opinion, in which the Court addressed the novel issue of remedies for persons wrongly convicted of crimes. Governments routinely deprive criminal defendants of both liberty and property upon conviction, and do so before giving them a chance to appeal their convictions and sentences. When a conviction is overturned, the state typically refunds fines and most other monetary exactions but seldom compensates for the loss of liberty. In Nelson, the Supreme Court addressed an unusual case in which the state did not return the money and that refusal was approved (purportedly on the authority of a Colorado statute) by the Colorado Supreme Court. With only Justice Thomas dissenting, the Supreme Court held that Nelson was entitled to a refund, as a matter of procedural due process, but seemed to approve of the liberty/property distinction. This article argues, first, that the Court’s procedural due process analysis skips over the logical first step of identifying Nelson’s constitutionally protected property interest: second, that the Court could have sidestepped that difficulty by focusing instead on the inadequacy of the state ground on which the Colorado Supreme Court based its ruling; and third, that property is distinguished from liberty in a more convincing way in Justice Alito’s opinion concurring in the judgment.