The U.S. Supreme Court building. (Andrew Harrer/Bloomberg)

Virtually everywhere in America, the Supreme Court was told Monday, a criminal defendant who has paid fines and other penalties as a consequence of being convicted gets the money back if the verdict is overturned.

The exception is Colorado, where a freed defendant must file suit and prove his innocence by clear and convincing evidence in order to request a refund.

But perhaps not for long.

Practically every member of the court who spoke at Monday’s oral argument seemed to find something to question about Colorado’s procedure, which a lawyer for two defendants said stood the normal burden of proof on its head.

The process is “tantamount to charging people money for the privilege of trying them unlawfully,” said Stuart Banner, a UCLA law professor.

Such was the barrage of questions for Colorado Solicitor General Frederick Yarger that Justice Stephen G. Breyer at one point apologized. “I mean, you — I grant you have a tough side of this argument,” Breyer said. “It doesn’t seem very fair.”

Yarger stood his ground, saying that because the fines were valid at the time they were levied, the funds belong to the state. And the state has discretion on how to refund them — or whether to refund them at all.

Justice Elena Kagan told Yarger to put aside the legalities and describe “just in common-sensical terms, why is this the state’s money?”

Chief Justice John G. Roberts Jr. said that under Colorado’s reasoning, the state could mandate that “everybody who is convicted owes the state $10,000” and that no one gets the money back, even if the conviction is overturned.

Breyer came up with a scenario in which a corporate defendant is found guilty and fined $15 million. He could appeal, Breyer said, but the state could say: “If you win, we’re not going to give you the money back.”

“Now, there’s something wrong with that,” Breyer said, to laughter. “I’m trying to put my finger on it.”

Banner was representing Shannon Nelson and Louis Alonzo Madden, who were separately charged and convicted of sexual assaults. Nelson paid about $700 in penalties before her conviction was overturned on appeal. At a later trial, she was acquitted of the alleged crimes against her children.

Madden paid about $4,000 after his conviction. It was overturned, and prosecutors decided not to try him again.

But both were turned down when they sought refunds. Their cases eventually reached the Colorado Supreme Court, which ruled that the only way for them to get the money back was to file through the state’s Exoneration Act.

The law was intended to help those who had been wrongfully convicted and imprisoned for years. It requires those who appeal to prove their actual innocence by clear and convincing evidence.

Yarger noted that there is no requirement that states compensate those who are wrongly convicted for the time they spend in jail. The same is true for fines and penalties, he said.

“The assumption is that the deprivation of both the liberty and the property at the time of conviction is lawful, and that the property passes into public funds,” he said.

But Roberts said Yarger was conflating compensation with refunds.

“You can’t give them back whatever time they’ve spent in jail,” the chief justice said. “You just can’t do it. But you can give them the money back.”

Under questioning from Kagan, Yarger noted that if the court disagrees with Colorado’s assertion, the state could not make it difficult for those whose convictions were overturned to be reimbursed. Probably, he said, it should be as simple as filing a motion with a lower court and proving how much money they have turned over.

The case is Nelson v. Colorado.