FFoorrddhhaamm LLaaww RReevviieeww Volume 75 Issue 4 Article 7 2007 DDyyiinngg TToo GGeett AAwwaayy WWiitthh IItt:: HHooww tthhee AAbbaatteemmeenntt DDooccttrriinnee TThhwwaarrttss JJuussttiiccee----AAnndd WWhhaatt SShhoouulldd BBee DDoonnee IInnsstteeaadd Timothy A. Razel Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn 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 (2007). Available at: https://ir.lawnet.fordham.edu/flr/vol75/iss4/7 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. DDyyiinngg TToo GGeett AAwwaayy WWiitthh IItt:: HHooww tthhee AAbbaatteemmeenntt DDooccttrriinnee TThhwwaarrttss JJuussttiiccee----AAnndd WWhhaatt SShhoouulldd BBee DDoonnee IInnsstteeaadd CCoovveerr PPaaggee FFoooottnnoottee J.D. Candidate, Fordham University School of Law, 2008. I would like to thank my good friend Adam S. Wilcox for inspiring me to write about this topic. Thank you also to Professor Daniel Richman, my advisor, as well as my parents Barb and Tony and my sister Melissa for always being there for me. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol75/iss4/7 DYING TO GET AWAY WITH IT: HOW THE ABATEMENT DOCTRINE THWARTS JUSTICE- AND WHAT SHOULD BE DONE INSTEAD Timothy A. Razel* INTRODUCTION In December 2001, Ken Horton left the headquarters of Enron Corporation, personal items in hand, for the final time.1 Like many of the thousands of newly laid-off employees who left the bankrupt company at that time, he felt "betrayed by ... [the] company he loved."'2 One of Horton's regrets about his overall positive Enron experience was his investment strategy.3 "'If I had to do it all over again, I would work at Enron again,' he said. 'I just would have invested a little differently.-' 4 Due to the spectacular collapse of Enron in 2001, Horton incurred a six- figure loss from his retirement account, which was loaded with Enron 5 stock. Thanks to a scheme concocted by Kenneth L. Lay, Chief Executive Officer of Enron, and other company executives, Enron's stock had been kept artificially high between 1998 and early 2001.6 Enron executives accomplished this feat by using various accounting tricks to conceal over $7 billion in losses.7 However, on October 22, 2001, the scheme began to crumble as Enron admitted it was under inquiry by the Securities and Exchange Commission (SEC) for possible conflicts of interest related to * J.D. Candidate, Fordham University School of Law, 2008. I would like to thank my good friend Adam S. Wilcox for inspiring me to write about this topic. Thank you also to Professor Daniel Richman, my advisor, as well as my parents Barb and Tony and my sister Melissa for always being there for me. 1. Frank Ahrens, From the Ex-employees: Revenge, Shock, Sadness, Wash. Post, May 26, 2006, at D1. 2. Id. 3. See id. 4. Id. 5. Id. 6. See Superseding Indictment 21, United States v. Causey, 2004 WL 1553217 (S.D. Tex. 2004) (Cr. No. H-04-25). According to the Superseding Indictment, Lay and others engaged in various tactics including fraudulently overvaluing assets, making "false and misleading statements" about the company's true financial condition, and hiding losses in two subsidiary companies, Enron Broadband Services and Enron Energy Services. Id. 28. 7. Id. 24, 28. 2193 2194 FORDHAM LAW REVIEW [Vol. 75 two partnerships,8 which the conspirators used to hide losses.9 After credit rating agencies downgraded Enron's rating, top Enron officials announced that they had overstated their income for the previous three-and-a-half years by $586 million.' 0 Enron finally crashed when a merger agreement with a rival failed and its rating was reduced to "junk status."11 On December 2, 2001, Enron filed for Chapter 11 bankruptcy and its stock was rendered worthless. 12 As a result of this scheme, Ken Lay netted approximately $217 million in income from sales of artificially inflated Enron stock, as well as $19 million in salary.13 Also as a result of this scheme, unwitting former Enron employee Adam Plager lost his 401 (k) plan, which, like Horton's retirement account, had been buoyed by seemingly invincible Enron stock.14 Plager and Horton were merely two of "thousands of employees and millions of stockholders" who had lost big money from this scheme.15 The Justice Department brought various fraud-related charges against Lay.16 He was found guilty on May 25, 2006, of all ten counts of the indictment.17 When he heard about the guilty verdicts, Horton told the Washington Post he was "in such an excellent mood."'18 He was right to be happy. Even though sentencing had not yet occurred (it was scheduled for October 23),19 it was likely that the sentence would include restitution of "tens of millions of dollars" unlawfully obtained by Lay to victims like Plager and Horton.20 That would be the justice that Lay's victims believed they deserved. 8. Timeline of Enron's Collapse, Wash. Post, Sept. 30, 2004, http://www.washingtonpost.com/wp-dyn/articles/A25624-2002JanI 0.html. 9. Superseding Indictment, supra note 6, 28-33. 10. Id. 26. 11. Id. 12. Id.; Timeline of Enron's Collapse, supra note 8. 13. Superseding Indictment, supra note 6, 16. 14. Ahrens, supra note 1. The stock had reached the height of $90 per share in August 2000. Id. 15. United States' Opposition to the Motion of the Estate of Lay to Vacate His Conviction and Dismiss the Indictment at 1, United States v. Skilling, Cr. No. H-04-25 (S.D. Tex. Sept. 6, 2006) [hereinafter Opposition to the Motion to Vacate], available at http://lawprofessors.typepad.com/whitecollarcrime-blog/files/govemment-abatement-motio n-response.pdf. 16. See United States v. Lay, 456 F. Supp. 2d 869, 870 (S.D. Tex. 2006) (granting motion to abate). The charges included conspiracy to commit securities and wire fraud, wire fraud involving false and misleading statements in employee meetings, securities fraud involving presentations to securities analysts and rating agency representatives, bank fraud, and making false statements to banks. Id. 17. Opposition to the Motion to Vacate, supra note 15, at 1. 18. Ahrens, supra note 1 (internal quotation marks omitted). 19. See Tom Fowler, Lay Case: It's Not Over: ProsecutorsS eek a New Law to Keep His Conviction Alive, Despite His Death, Houston Chron., Sept. 7, 2006, at AI. 20. See Opposition to the Motion to Vacate, supra note 15, at 1. A victim is entitled to restitution if he or she is harmed by the commission of a federal crime under the Mandatory Victims Restitution Act of 1996 (MVRA), Pub. L. No. 104-132, §§ 201-211, 110 Stat. 1214, 2007] HOW THE ABATEMENT DOCTRINE THWARTS JUSTICE 2195 However, that justice was about to be put in grave jeopardy. On July 5, 2006, Ken Lay died of a heart attack.21 His lawyers then moved to invoke a Fifth Circuit precedent that calls for the vacation of the conviction of any defendant who dies before having an opportunity to pursue an appeal.22 The doctrine is called abatement ab initio, or simply "abatement. '23 Its effect is to stop all proceedings ab initio (from the beginning) and render the defendant as if he or she had never been charged.24 Since judgment had not yet been entered, and sentencing had not yet occurred, Lay had no opportunity to appeal.25 Arguing that "the Lay Estate should not be unjustly enriched with the proceeds of fraud," the government opposed the motion.26 It acknowledged that victims or the government could file a civil action against the estate to have such proceeds disgorged, but that would require the plaintiffs to prove the entire case all over again (albeit at a lower burden of proof) and spend years in litigation.27 The government requested that the court delay ruling on the motion until October 23, the date of sentencing, so it could convince Congress to pass a law which would retroactively preserve Lay's conviction.28 No one came forward to sponsor the legislation, which was sent to then-Speaker of the House of Representatives Dennis Hastert and Vice President Dick 29 Cheney. With no action from Congress, on October 17, 2006, Judge Sim Lake rendered an order abating Lay's conviction.30 Judge Lake acknowledged that the "Fifth Circuit Court of Appeals has adopted the abatement rule," and thus he was compelled to abate the proceedings against Lay.31 In its opposition to the abatement order, the government pointed out that many states have begun to question their previous use of the doctrine, with some recently overturning precedent and choosing an alternative doctrine.32 1227-41 (codified in scattered sections of 18 U.S.C. (2000)). For further discussion, see infra notes 151-58 and accompanying text. 21. Purva Patel & My-Thuan Tran, No Sponsorf or ProposedL ay Bill, Houston Chron., Sept. 8, 2006, at D1. 22. See Fowler, supra note 19. For an example of the relevant case law, see United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004) (en banc). 23. See Estate of Parsons, 367 F.3d at 413; Opposition to the Motion to Vacate, supra note 15, at 3. 24. See Estate of Parsons, 367 F.3d at 413. 25. United States v. Lay, 456 F. Supp. 2d 869, 874 (S.D. Tex. 2006). Technically, because judgment had not yet been entered, there was no conviction to appeal. See id. However, the rule may be invoked after a guilty verdict regardless of whether judgment had yet been entered. Id. (citing United States v. Asset, 990 F.2d 208, 211 (5th Cir. 1993)); see also United States v. Oberlin, 718 F.2d 894, 896 (9th Cir. 1983). 26. Opposition to the Motion to Vacate, supra note 15, at 2. 27. Id. at 4. 28. Id. at 2. For details about the legislation, see id. at 4-7. For the text, see id. attachment A. 29. Patel & Tran, supra note 21. 30. Lay, 456 F. Supp. 2d at 875. 31. Id. 32. Opposition to the Motion to Vacate, supra note 15, at 4 (noting several examples). 2196 FORDHAML AW REVIEW [Vol. 75 The purpose of this Note is to examine the transition from the nearly universal use of abatement to the many methods modem courts use to dispose of cases such as Lay's. This Note also advocates for the adoption of the approach that produces the fairest result. Part I discusses the traditional doctrine of abatement and provides a historical overview that tracks the development of the law regarding abatement. This includes a discussion about the changes in the rationale behind criminal law that accompanied the change in policy. It then articulates the various competing interests that the doctrine of abatement affects. Part II provides an analysis of each of the five alternative abatement doctrines (as set out by the Maryland Supreme Court in Surland v. State33). It discusses the arguments for and against each method in light of the various interests at stake. Part III recommends a new approach, one that properly balances all of the interests involved. This new approach recognizes that not all cases are the same-there are variable interests of differing intensities in each. Part III also includes a discussion of other advantages to the new approach, as well as its disadvantages. I. THE DOCTRINE OF ABATEMENT A. The TraditionalD octrine 1. What Is Abatement? Abatement is the dismissal or discontinuance of a legal proceeding "for a reason unrelated to the merits of the claim."34 It is available in both the civil context35 and the criminal context.36 Traditionally, the death of a criminal defendant following conviction, but before an appeal can be made, is a ground for abatement.37 The effect of abatement is to discontinue all proceedings ab initio-dismiss the appeal as moot, overturn the conviction, and dismiss the indictment.38 Essentially, the defendant is left as if he or she had never been charged.39 33. 895 A.2d 1034 (Md. 2006). 34. Black's Law Dictionary 1 (2d Pocket ed. 2001). 35. See 1 Am. Jur. 2d Abatement, Survival, and Revival § 1 (2006) (In the civil context, abatement is a mechanism by which the defendant can stop a suit against him either permanently or temporarily because of some procedural defect). 36. See supra notes 22-25 and accompanying text. 37. See, e.g., Commonwealth v. Eisen, 334 N.E.2d 14, 14 (Mass. 1975). 38. United States v. Schuster, 778 F.2d 1132, 1133 (5th Cir. 1985); see also supra notes 22-25 and accompanying text. 39. See United States v. Schumann, 861 F.2d 1234, 1237 (11 th Cir. 1988); Rosanna Cavallaro, Better Off Dead: Abatement, Innocence and the Evolving Right of Appeal, 73 U. Colo. L. Rev. 943, 951 (2002). 2007] HOW THE ABATEMENT DOCTRINE THWARTS JUSTICE 2197 These effects of abatement have some significant legal consequences. Since the conviction no longer exists, it cannot be used in a civil suit related to the criminal activity.40 Any uncollected fines generally cannot be collected from the estate.41 Restitution is a more controversial issue-some courts that use abatement eliminate restitution and others preserve restitution orders.42 However, any restitution already paid by the defendant 43 may not be recovered. Abatement is generally not used except in cases where defendants die awaiting direct appeal. If the defendant dies appealing the denial of a petition for habeas corpus,44 or during other collateral proceedings,45 the proceedings will usually be dismissed but the conviction will remain intact. The United States Supreme Court will dismiss a petition for certiorari which is pending when the defendant dies.46 Likewise, it will even dismiss a petition for certiorari that has been granted.47 Courts are split on the issue of whether the cause of death is relevant. Some courts view the defendant's death by suicide as a decision to intentionally forego "the appeals procedure which he knew would have been available to him."'48 Thus, they will not invoke abatement and instead let the conviction stand.49 Other courts maintain that suicide is irrelevant.50 One cannot "waive" the abatement doctrine by killing oneself.51 Further, such a distinction unjustifiably forces the courts to conduct "an exhaustive examination of the circumstances of death."'52 2. Sources of Authority for Abatement Doctrine Where do courts get the authority to abate convictions? In the federal judicial system it is not mandated by the Constitution or federal statute.53 40. United States v. Pauline, 625 F.2d 684, 684 (5th Cir. 1980). 41. Id. However, any fines already paid into the court are not refundable; this is analogous to time served in prison, which similarly cannot be refunded. United States v. Zizzo, 120 F.3d 1338, 1346-47 (7th Cir. 1997). 42. Compare, e.g., United States v. Dudley, 739 F.2d 175, 178 (4th Cir. 1984) (determining that restitution is preserved), with United States v. Logal, 106 F.3d 1547, 1552 (1 th Cir. 1997) (determining that restitution is eliminated). 43. United States v. Asset, 990 F.2d 208, 214 (5th Cir. 1993), abrogated on other grounds by United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004). 44. See, e.g., Jackson v. State, 559 So. 2d 320, 321 (Fla. Dist. Ct. App. 1990). 45. See, e.g., Commonwealth v. De La Zerda, 619 N.E.2d 617, 618-19 (Mass. 1993) (reviewing an appeal of denial of motion for new trial); Keeny v. State, 575 S.W.2d 850, 850-51 (Mo. Ct. App. 1978) (en banc) (reviewing an appeal of denial of writ of error coram nobis). 46. See Dove v. United States, 423 U.S. 325, 325 (1976) (per curiam). 47. See, e.g., United States v. Green, 507 U.S. 545, 545 (1993) (mem.). 48. United States v. Chin, 633 F. Supp. 624, 627 (E.D. Va. 1986). 49. See, e.g., id. at 628. 50. See, e.g., United States v. Oberlin, 718 F.2d 894, 896 (9th Cir. 1983). 51. Id. 52. State v. McDonald, 405 N.W.2d 771, 773-74 (Wis. Ct. App. 1987) (Sundby, J., concurring), aff'd in part, rev'd in part, State v. McDonald, 424 N.W.2d 411 (Wis. 1988). 53. United States v. Rorie, 58 M.J. 399, 405-06 (C.A.A.F. 2003). 2198 FORDHAML AW REVIEW [Vol. 75 The U.S. Supreme Court has not held that abatement is required in the federal system but rather has "allowed the scope of the abatement to be determined by the lower federal courts."'54 It merely instructs that the lower court dispose of the case "as law and justice require."55 Thus, abatement in the federal system is a "matter of policy" for each court.56 In state courts, similarly, abatement is not constitutionally or statutorily compelled but is rather a matter of common law.57 Some state legislatures, however, have created legislative policy that has influenced the development of the abatement doctrine in those states.58 B. The Development of the Abatement Doctrine 1. Origins The origins of the abatement doctrine are unclear. There is little historical writing about the doctrine before the nineteenth century. Beginning in the late nineteenth century, the earliest American cases dealing with the question generally treated abatement as the obvious course of action when a defendant died. In List v. Pennsylvania,59 the Supreme Court acknowledged that the defendant had died and ordered abatement and dismissal of the writ of error. Its sole rationale was that "it appear[s] ... that this is a criminal case."60 In an 1879 case, March v. State,61 the Texas Court of Appeals held that a criminal proceeding was still "pending" while an appeal was being taken.62 Because the defendant had died before the 54. Durham v. United States, 401 U.S. 481, 482 (1971) (per curiam), overruled on other grounds by Dove v. United States, 423 U.S. 325 (1976) (per curiam); see also Crooker v. United States, 325 F.2d 318, 320 (8th Cir. 1963) ("These statements [from various Supreme Court cases on abatement] would seem to intend no implication on what the scope of the abatement was which had occurred, but to leave that matter entirely to the lower courts ..." ). 55. Durham, 401 U.S. at 482 (internal quotation marks omitted); e.g., Singer v. United States, 323 U.S. 338, 346 (1945). In state cases, the Court will simply dismiss the proceeding without instruction. See, e.g., Gersewitz v. New York, 326 U.S. 687, 687 (1945) (mem.), cited in Durham, 401 U.S. at 482. 56. Rorie, 58 M.J. at 405. This policy can of course be changed by statute, which the Justice Department has recently tried to convince Congress to do, with little success. See supra notes 28-29 and accompanying text. 57. See, e.g., Wheat v. State, 907 So. 2d 461, 463 (Ala. 2005) (per curiam) (discussing whether the court's ability to reject the abatement doctrine is barred by stare decisis); People v. Robinson, 719 N.E.2d 662, 664 (Ill. 1999) (rejecting an opportunity to discard the doctrine because abatement "has been the law ...f or over twenty years"). 58. See, e.g., State v. Salazar, 945 P.2d 996, 1003 (N.M. 1997) (citing a New Mexico statute that allows for substitution of a party to pursue the appeal of a dead defendant); State v. Makaila, 897 P.2d 967, 972 (Haw. 1995) (per curiam) (construing Hawaii Rules of Appellate Procedure, Rule 43(a), to allow for substitution of a party to pursue the appeal). 59. 131 U.S. 396, 396 (1888) (mem.). 60. Id. 61. 5 Tex. Ct. App. 450 (1879). 62. Id. at 453 ("We are of opinion that.., the case is pending so long as the question of the guilt or innocence of the accused remains undetermined ...".). 2007] HOW THE ABATEMENT DOCTRINE THWARTS JUSTICE 2199 appeal was decided, the court declared, without citation to authority, that "the prosecution abate[d] in toto" because the proceeding was still pending.63 In O'Sullivan v. People,64 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."'65 The court thus refused to 66 punish the dead defendant. Interestingly, some states have never used abatement. Connecticut is one state that decided against abatement.67 In 1971, the Connecticut Supreme Court was first presented with the issue, and declined to decide whether to adopt abatement, because arguments for the rule were "neither briefed nor argued before [it].''68 It decided that the appeal was to be "dismissed as moot."'69 Later cases continued to dismiss appeals as moot, without abating the conviction, citing the 1971 case as authority.70 Georgia has also never used abatement. In Taylor v. State,71 decided in 1911, the court noted that "the plaintiff in error has departed this life, prior to the decision of the case."'72 It went on to say, "It is ordered that the writ of error be and the same is hereby dismissed. '73 A later case justified dismissal of the appeal on the grounds that "[any further action against the defendant could not proceed even if the case be reversed on appeal. '74 Therefore, not every court considered abatement the natural course of action, but they all recognized that an appeal could not proceed, and that simply dismissing the case was proper. The main early issue regarding the doctrine focused on whether the obligation to pay criminal fines abated upon death. In United States v. Pomeroy,75 a 1907 federal case, the circuit court noted that there was "little authority" to guide it on this question. It decided the problem on policy grounds-stating that the point of criminal law is to punish the defendant, and not his heirs and next of kin.76 Thus, the court declared that the 63. Id. at 456. 64. 32 N.E. 192 (Il1l8.9 2) (per curiam). 65. Id. at 193; Tim E. Staggs, Note, Legacy of a Scandal: How John Geoghan's Death May Serve as an Impetus to Bring Abatement Ab Initio in Line with the Victims' Rights Movement, 38 Ind. L. Rev. 507, 515 (2005). 66. See O'Sullivan, 32 N.E. at 194. 67. See State v. Raffone, 285 A.2d 323, 325-26 (Conn. 1971). 68. Id. at 326. 69. Id. 70. See, e.g., State v. Trantolo, 549 A.2d 1074, 1074 (Conn. 1988) (per curiam); State v. Grasso, 374 A.2d 239, 241 (Conn. 1977) (citing Raffone as authority for dismissing the appeal as moot). In Trantolo, one justice argued for the adoption of the abatement doctrine, complaining that Grasso and Raffone had been mistakenly adopted as legal authority on the question. See Trantolo, 549 A.2d at 1074-75 (Healey, J., dissenting). 71. 72 S.E. 898 (Ga. 1911) (per curiam). 72. Id. at 898. 73. Id. 74. State v. Dodelin, 319 S.E.2d 911, 911 (Ga. Ct. App. 1984). 75. 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). 76. Id. at 282. 2200 FORDHAM LAW REVIEW [Vol. 75 defendant's fine had abated along with the judgment, and the estate was not liable for it.77 State courts generally agreed with the result in Pomeroy.78 According to the court in Boyd v. State,79 "The personal representative of the deceased is not responsible for the alleged violation of the law," and thus he or she cannot be required to pay on the decedent's behalf.80 A concurring Illinois court opinion reasoned that, unlike in a civil suit where the plaintiff has a property right in the judgment, there is no property right to uphold in a criminal fine.81 2. Criminal Law Rationales in the Nineteenth and Early Twentieth Centuries Before the mid-nineteenth century in England (as well as in early American colonial times), victims were required to apprehend and prosecute criminals who had wronged them if they wanted the criminals to be punished.82 Victims would have to initiate proceedings, called "appeals" or "indictments," before a judge provided by the king.83 The victim could extract compensation from the criminal as well as punishment.84 Unfortunately, the victim had to bear all the costs of prosecution.85 Due to this limitation, justice was not consistently enforced--especially in less- 86 affluent communities. This system of private prosecutions came to be considered "elitist, inefficient, . . .vindictive[,]" and "partisan. '87 As the American colonies 77. Id. at 283; accord United States v. Dunne, 173 F. 254, 258 (9th Cir. 1909). The Second Circuit reversed the Pomeroy court's decision on the grounds that the motion by the estate was a "civil suit ...[ by the] estate to relieve it from the payment of the judgment." N.Y Cent. & H.R.R. Co., 164 F. at 325. It reasoned that the matter of the estate's liability was separate from the matter of "guilt or innocence," and thus the court, as essentially presiding over a civil matter, did not have authority to abate the judgment. Id. 78. See Blackwell v. State, 113 N.E. 723, 723 (Ind. 1916) ("The weight of authority seems to be to the effect that a fine imposed as a punishment for an offense cannot be enforced after the death of the defendant as a claim against his estate."); see also Boyd v. State, 108 P. 431, 431 (Okla. Crim. App. 1910); People v. Alexander, 281 P. 697, 697 (Cal. Ct. App. 1929). 79. 108 P. 431. 80. Id. at 431. 81. O'Sullivan v. People, 32 N.E. 192, 192-93 (Ill. 1892). 82. Jennie L. Cassie, Note, Passingt he Victims' Rights Amendment: A Nation 's March Toward a More Perfect Union, 24 New Eng. J. on Crim. & Civ. Confinement 647, 649-50 (1998). This system was called the "private prosecutorial system." Id. at 650. 83. Juan Cardenas, The Crime Victim in the ProsecutorialP rocess, 9 Harv. J.L. & Pub. Pol'y 357, 360 (1986). Alternatively, if the victim felt feisty, he could choose to fight the criminal in "battle" and whoever won would be considered the winner of the trial. Id. Needless to say, this option was rarely used, but it was legal in England until 1819. Id. at 360 n.14. 84. Cassie, supra note 82, at 649. 85. Id. at 650. 86. Id. at 651-52. 87. Cardenas, supra note 83, at 369.