Legal Perspective: Doctrine of abatement ab initio

The doctrine of abatement ab initio is a common law creation which operates to extinguish all criminal proceedings initiated against defendant from indictment through conviction, where the
defendant dies pending appeal.

The reason for such a doctrine is twofold: 1) unfair to maintain conviction against a deceased Defendant, where conviction is untested by appellate review, and 2) the primary purpose of criminal proceedings is to punish behaviour and correct behaviour and warm others not to engage in similar behaviour. With Defendant death, the state can't really punish or correct anymore.

Aaron Hernandez entering a courtroom.
2017/NY Post photo

The first part of the reasoning for the doctrine is rooted in Blackstone, which is quoted in the Sports Illustrated article by University of New Hampshire Law Professor Michael McCann, as it is better that 10 guilty go free, than one innocent be punished. This same quote was refashioned by Benjamin Franklin to be 100 guilty go free, than one innocent be punished. The idea is that without a conviction being reviewed by an appellate court, even the narrowest or margins for innocence are untested.

The second part of the reason is the idea that if the person for whom punishment and correction is sought no longer is alive, then the state's interest in penal justice ceases too.

The doctrine dates back to the 19th Century, earlier references being matters of bankruptcy and debt collection, rather than the voiding of a criminal case. The first US Supreme Court case fully addressing the issue was List v. Pennsylvania (1888) 131 U.S. 396. In List, the Court ordered abatement and dismissal of the writ of error. The reasoning was that it was a criminal case. Courts' focus in the 19th and early 20th Centuries was on punishing crime and upholding due process, thus abatement ab initio flows very logically. Later, victims became more of a concern for courts.

 A Texas Court of Appeals in the 1879 case of March v. State, held that a criminal proceeding were still pending when an appeal was being taken. Because defendant died before opinion of appeals court was announced, the court declared that the prosecution abated in toto. March v. State (1879) 5 Tex. Ct. App. 450.

In 1892, the Illinois Supreme Court took the view that, "[a] judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist." O'Sullivan v. People (1892) 32 N.E. 192.

Interestingly, some states never developed the doctrine of abatement ab initio, Connecticut is one example. In 1971 the issue came before the state supreme court and the court refused to render opinion, citing that the issue was "neither briefed, nor argued before." State v. Raffone, 285 A.2d 323, 325-26 (Conn. 1971).

The doctrine in the US derived from the issue of whether the obligation to pay penal fines abated with death of the defendant. In the 1907 case of US v. Pomeroy, the Second Circuit Court of Appeals noted there was little precedent for the court, but the judges did reason on policy grounds, stating that the purpose of the criminal is to punish the defendant and not the relic and issues. Court held that defendant's penal monetary obligation abated along with the judgement against defendant and thus the estate was not liable. United States v. Pomeroy, 152 F. 279, 280 (C.C.S.D.N.Y. 1907), rev'd sub. nom., United States v. N.Y. Cent. & H.R.R. Co., 164 F. 324 (2d Cir. 1908).

Throughout the 20th Century the doctrine developed along the lines of Pomeroy. The idea being that the personal representative, estate, spouse and children of deceased defendant should not bear the obligation. Boyd v. State, 108 P. 431 (Okla. Crim. App. 1910); also see: Blackwell v. State, 113 N.E. 723, 723 (Ind. 1916) and People v. Alexander, 281 P. 697, 697 (Cal. Ct. App. 1929).

In the US, "there has never been a constitutional right to appeal a criminal conviction. The ability to review a conviction is essential to protecting due process and ensuring that 'the innocent will
not be punished'." Timothy A. Razel, Dying To Get Away With It: How the Abatement Doctrine Thwarts Justice--And What Should Be Done Instead, 75 Fordham L. Rev. 2193, 2202 (2007).

By the late 20th Century and early 21st Century, the rights of victims emerged as worthy of preserving. 1 Wayne R. LaFave et al., Criminal Procedure § 1.4(k) (2d ed. 2000).

In 1982, President Ronald Reagan commissioned a task force on victim's rights that recommended amending the Sixth Amendment of the US Constitution to ensure victim's right to be "heard" in all phases of criminal proceedings. President's Task Force on Victims of Crime, Final Report 114 (1982). Amending the constitution didn't go anywhere, but proponents were able to convince Congress to pass the Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248 (codified in scattered sections of 18 U.S.C. (2000)).

Today, the majority of courts, including most all of the federal circuits, allow abatement ab initio. A dozen states refuse to abate a jury conviction and therefore the conviction stands post-defendant death. Around seven states allow a substitute party to continue the appeal on behalf of the defendant, but not abating. The Third and Fourth Circuits abate all but restitution orders. Some states, such as Connecticut, just don't recognise the doctrine.

Victims have an interest in receiving compensation for loss due to crime perpetrated against them by the defendant. The doctrine can have devastating effects on the ability of victims (or their families) to recover damages in a civil action. If the record is not vacated, victims or their families in death cases, can use the criminal conviction in a later civil trial for damages.

Massachusetts has been the scene of three prominent abatement cases. The first is the case of  John Salvi who opened fire on an abortion clinic in 1994, killing two women and injuring five others. After Salvi's conviction, but before appeal, Salvi committed suicide. The court abated and one of the deceased victim's mother took the the pulpit and said it is as if the judiciary wiped Salvi's record clean for the history books. The Massachusetts legislature nearly passed a law the following session to abolish abatement in criminal matters.

The next case is that of Father John Geoghan, a priest who was convicting of sexually molesting children. Geoghan was murdered by a fellow inmate in his prison cell whilst awaiting an appeal. The court abated, rendering him innocent by operation of law. After the order, one lawyer quipped that abatement "revictimize the victims."

The last case is also one that is pending in Massachusetts. Former New England Patriots' Tight End Aaron Hernandez had been convicted, after a nine week jury trial, in April 2015 of murdering, in the first degree, Odin Lloyd. Hernandez was sentenced to life in prison. "On Apr. 19, just five days after being acquitted of two murders in Boston, Hernandez hung himself in his jail cell at the Souza-Baranowski Correctional Center in Shirley, Mass." Michael McCann, Examining the effects of a potential abatement in the aftermath of Aaron Hernandez's death, Sports Illustrated online ed. 2 May 2017.

According to McCann, the prosecution has asked that the court not abate in this case. Time will tell whether the Hernandez case could contribute to the growing trend towards abrogating abatement; or whether the court will follow stare decisis, whereby the court follows precedent.

The Reagan Centennial: tribute to one of America’s greatest presidents

Today (6 February 2011) marks the centennial of the birth of Ronald Wilson Reagan, a man who lived the American Dream from stardom on the silver screen to serving as governor of the most populace state and finally leader of the free world. Reagan was also the last American President to hale from a non-Ivey League background. He was born in Tampico, Illinois to an alcoholic father, Jack, and supportive mother, Nelle, who were relatively poor, and struggled at times to put food on the table. Reagan had a particularly strong faith in the goodness of people, which stemmed from the optimistic faith of his mother. Reagan’s first job was as a lifeguard on Illinois’ Rock River and chalked up 77 rescues from 1926 to 1933. In 1932, he graduated with a B.A. degree in economics and sociology from Eureka College (Illinois). During college, Reagan gained a love for politics which lead to him being elected student-body president. He also was captain of the swim team and a member of the football team.

Having graduated in the middle of the Great Depression, Reagan struggled to find a job, but eventually landed one in Davenport, Iowa, working for a radio station. His main tasks were to re-create broadcasts of Chicago Cubs baseball games from telegraph scripts. In 1937 Reagan first travelled to California to cover the Cubs’ spring training. While in California, Reagan launched his acting career by landing a role in the film, Love is on the Air, also that same year he enlisted in the US Army Reserves as a private. By the end of the year Reagan was commissioned a second lieutenant. In 1942 Reagan was ordered to active duty, unfortunately his terrible eyesight limited his service. He was reassigned to the Army Air Force Public Relations division and subsequently to the 1st Motion Picture Division. By the end of the Second World War, Reagan’s unit had produced nearly 400 military training and promotional films.

By 1940, Reagan had acted in 19 films, including Dark Victory and a role in the film, Knute Rockne, All American, in which he acquired the lifelong nickname of “The Gipper”; having played the coach, George “The Gipper” Gipp. In 1940 Reagan was in the film Santa Fe Trail, which ensured his success as an actor, also that same year he married actress Jane Wyman and together they had two children, Maureen (1941-2007) and Christine (who died as an infant) and adopted a third, Michael (born 1945). Reagan’s personal favorite was his 1942 film, Kings Row in which his starred as a double amputee and declared, “Where is the rest of me?” This quote also served as the title of his 1965 autobiography. Reagan hired his mother to answer fan mail and she would sign his name to photographs and letters – a habit which he was later criticized. Unfortunately Reagan’s stardom was knocked down when he was ordered to active duty by the army in 1942.

After World War II, Reagan was elected third-vice president of the Screen Actors Guild and subsequently elected president (1947-1952), leading the organization through the Red Scare of the House Committee on Un-American Activities. Reagan provided the FBI lists of the names of actors with communist leanings. Reagan held true to his principles of democracy, freedom and capitalism even as an actor in southern California. In 1949 Reagan and Wyman were divorced (Reagan is the only American President to have ever been a divorcee). In 1949, Reagan met actress Nancy Davis, whom had mistakenly appeared on a Hollywood Black List, the two were married on 4 March 1952. Together they had two children: Patti (born in 1952) and Ron (born 1958). Throughout the 1950s Reagan starred in the GE Theater, a series of television dramas, which earned him $125,000 per annum ($1.25 million per annum in 2011 USD). While working for GE, Reagan was paid to tour the company’s factories, giving a series of speeches, it was this experience which served him well for his future career as a politician. His acting career wound-up as the presenter on the TV show Death Valley Days (1964-65).

Reagan began his campaign for governor of California in 1965 and his “Time for Choosing” speech at the state convention ensured his nomination as the Republican candidate. In November 1966, Reagan defeated two-term incumbent Pat Brown and was sworn in on 3 January 1967. The UC Berkley protests resulted in Reagan showing decisive leadership in reigning in anarchy and restoring order to California. Reagan also inherited a terrible economic situation and froze hiring and raised taxes to balance the budget and pay off the debt. Reagan was re-elected in 1970. In 1974, Reagan opted not to seek a third term as governor, but to focus his attention on challenging President Gerald Ford for the Republican nomination in 1976. Jerry Brown, a Democrat, succeeded Reagan as governor; ironically, the same Jerry Brown was elected to succeed another actor turned politician, Gov. Arnold Schwarzenegger in January 2011. Ford narrowly defeated Reagan at the convention and then subsequently lost to the presidency to Georgia Governor Jimmy Carter. The terrible economy of the 1970s (inflation had reached 12.5 per cent and un-employment was close to 10 per cent) and the Iran Hostage situation lead Reagan to challenge and defeat Carter in the 1980 cycle. During the election, Reagan famously said, “A recession is when your neighbor loses his job. A depression is when you lose yours. And recovery is when Jimmy Carter loses his."

On 20 January 1981 Ronald Reagan was sworn-in as the 40th President of the United States of America. In his first inaugural address, he declared, "In this present crisis, government is not the solution to our problem; government is the problem." Hours after taking office, the remaining 52 hostages taking from the American Embassy in Tehran by militant students were released. Only 69 days after taking office, Reagan and three others were shot by John Hinckley, Jr. while he was leaving a speaking engagement at the Washington Hilton in Washington, D.C. The assassination attempt resulted in a punctured lung and Reagan joking with his doctors prior to surgery by saying, “I sure hope you guys are Republicans.” The event also resulted in Secretary of State Alexander Haig controversially declaring, “I am in charge here!” – forgetting that Vice President George H.W. Bush was acting president during Reagan’s recovery. Reagan famously quipped to his wife, “Honey, I forgot to duck!”

Reagan, dealing skillfully with Congress, obtained legislation to stimulate economic growth, curb inflation, decrease un-employment and strengthen America’s national defense. He embarked upon a course of cutting taxes and Government expenditures. Reagan pledged to end the Cold War and realized the US could out spend the Soviet Union and economically bring an end to communism. Federal defense spending resulted in a giant deficit, but by 1989 the Berlin had fallen and the Iron Curtain had collapsed. Reagan also took on the Air Traffic Controllers who had gone on strike, nearly shutting down the entire nation. From the Rose Garden, he told air traffic controllers that if they did not report for work within 48 they would forfeit their jobs and be terminated. On 5 August 1981, Reagan fired 11,345 air traffic controllers who failed to report to work and were thus in breach of the Labor–Management Relations Act 1947.

In 1984 Reagan easily won re-election, carrying every state except Minnesota, Democrat challenger Walter Mondale’s home state. The American prosperity was such, that citizens overwhelmingly answered the president’s question in the affirmative – “ask yourselves, are you better off today than you were four years ago?” In 1986 Reagan and Congress agreed to an overhaul of the income tax code, which eliminated many deductions and exempted millions of people with low incomes. By the end of the Reagan Administration, Americans were enjoying the longest peacetime prosperity without recession. By the end of the decade, inflation was at 4 per cent, un-employment was below 5 per cent and Reagan had managed to not only cut taxes across the board, but decreased the size of the Federal Government by 2 per cent per annum. Reigning in spending slowly continued though to the early 2000s. The economic policies of the Reagan Administration opened the doors for the tech boom of the 1990s.

A “war against international terrorism” was declared after evidence revealed Libya was involved in an attack on American soldiers in a West Berlin nightclub. During the Iran-Iraq War (1980-1988), Reagan ordered the Navy to escort oil tankers through the Persian Gulf ensuring the free movement of oil. Also a war on drugs was declared and Nancy Reagan lead a campaign aimed at American school children to “just say no” to drugs. In keeping with the Reagan Doctrine, he gave support to anti-Communist insurgencies in Central America, Asia, and Africa. The most famous gave rise to the Iran-Contra Affair of 1986, in which the US sought to improve Iranian relations by agreeing to supply arms to Iran. Israeli middlemen sold hi-tech arms in exchange for Iran negotiating with Lebanese Shia group, Hezbollah, to release six American hostages. Meanwhile, the proceeds from the arms sales were used to fund the Contras in Nicaragua, who were battling a communist regime. Congress has specifically outlawed such deals. The International Court of Justice (ICJ) in Nicaragua v United States (1986) held the US was in breach of their obligation to respect state sovereignty. In less than a week Reagan’s approval rating dropped from nearly 70 per cent to less than 46 per cent. Reagan’s critics dubbed him the “Teflon President”, as in a couple weeks his popularity rating was in the mid-60s again. Reagan was the “Great Communicator” and spoke frankly with the American people and the world.

Reagan’s foreign policy plan of “peace through strength”, which was the re-creation of President Teddy Roosevelt’s policy of “walk softly and carry a big stick” had fully developed after his second inauguration. In four dramatic meetings, between 1986 and 1988 in Geneva, Reykjavík, Washington, D.C., Moscow, with Soviet leader Mikhail Gorbachev, Reagan recognized the shift in mentality from adversary to conciliation and used diplomacy to negotiate the Intermediate-Range Nuclear Forces (INF) Treaty at the White House, which eliminated intermediate-range nuclear missiles. Reagan's personal mission was to achieve "a world free of nuclear weapons". The two leaders laid the framework for the Strategic Arms Reduction Treaty, or START I, which was recently renewed by President Obama and his Russian counterpart Dmitry Medvedev after ratifications in both the US Senate on 22 December 2010 and in the State Duma on 24 December 2010 and entered into force when the United States and Russia exchanged instruments of ratification on 5 February 2011 in Munich, Germany. On 12 June 1987, while speaking in front of the Berlin Wall's Brandenburg Gate, President Reagan declared, "General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization, come here to this gate! Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall!" The final sentence of this quote was taken out of the speech by the President’s speech writers and his advisors warned against such a bold statement, but after the cheers from the crowd, Reagan looked not to his notes or teleprompter, but to the crowd and uttered those now infamous words.

On 20 January 1989, the Reagans left office and retired to Bel Air, California a suburb of Los Angeles. Reagan, throughout his presidency enjoyed spending time at his ranch, “Rancho del Cielo”, near Santa Barbara. Reagan’s last speech was on 3 February 1994 in Washington, D.C. and his last official public appearance was at the funeral of the late President Richard Nixon. In August 1994, Reagan announced to the country he had been diagnosed with Alzheimer’s disease, an incurable neurological disorder which destroys brain cells and ultimately causes death. In 2001 the former president fell at his home and broke his hip. President Reagan passed away on 5 June 2004. His body was flown to Washington, D.C. to lie in state in the rotunda of the Nation’s Capitol.

A hallmark of Reagan was his witty sense of humor and his grandfatherly image of strength and wisdom. As a sound check prior to his weekly radio address in August 1984, Reagan made the following joke as a way to test the microphone: "My fellow Americans, I'm pleased to tell you today that I've signed legislation that will outlaw Russia forever. We begin bombing in five minutes." Ronald Reagan’s legacy continues to be influential on the development of the United States today. President Barak Obama’s Christmas 2010 reading list included two books: “President Reagan: The Role of a Lifetime” and “Governor Reagan: His Rise to Power”, by Lou Cannon.