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.
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.
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 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.
