Brooklyn Law Review Volume 78|Issue 4 Article 13 2013 The Importance of Being Earned: How Abatement After Death Collaterally Harms Insurers, Families, and Society at Large Sabrina Margret Bierer Follow this and additional works at:https://brooklynworks.brooklaw.edu/blr Recommended Citation Sabrina M. Bierer,The Importance of Being Earned: How Abatement After Death Collaterally Harms Insurers, Families, and Society at Large, 78 Brook.L.Rev.(2013). Available at:https://brooklynworks.brooklaw.edu/blr/vol78/iss4/13 This Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. The Importance of Being Earned HOW ABATEMENT AFTER DEATH COLLATERALLY HARMS INSURERS, FAMILIES, AND SOCIETY AT LARGE INTRODUCTION Imagine a nine-year-old girl murdered, her father forced to amputate his leg, and the family faced with nearly one-and- a-half million dollars in medical expenses. Now imagine that the person who caused this harm was convicted and ordered to pay restitution to the family, but—without any legal review— the court vacated the conviction and the restitution order. These are the facts of People v. Schaefer.1 With unreviewed vacations (or abatements) of convictions come many immediate and ancillary consequences that affect victims and third parties alike. Courts often issue restitution orders with criminal convictions to compensate victims for their losses. In many jurisdictions, when a court abates a conviction it also abates the corresponding restitution order, which denies the victim his interest in compensation. These immediately noticeable effects, however, are not the only problems caused by abatement. Essentially, when a conviction abates, all proof of the conviction and its consequences legally disappear,2 which affects the victim in subsequent civil suits and ripples the harm to collateral third parties. The absence of a criminal conviction creates unnecessary obstacles to meeting the burden of proof in a civil case. This can also create unpredictable results for insurance settlements related to the criminal conviction. Even though a defendant has been convicted beyond a reasonable doubt, and even though in most jurisdictions insurance does not pay for the wrong-doing of criminals and allows the insurer to seek indemnification from the wrongdoer through subrogation, abatement creates the possibility that insurers will have to pay 1 People v. Schaefer, 146 Cal. Rptr. 3d 497 (2012). 2 See infra Part I.C. 1699 1700 BROOKLYN LAW REVIEW [Vol. 78:4 for the consequences of an insured criminal or that the insurance company’s ability to seek indemnification through subrogation will be diminished, which takes money out of the pockets of others insured by the company. Because there is limited legal guidance on what courts should do when a criminal dies before exhausting his right to appeal, the possibility of vacating punishment without review lurks behind every criminal conviction.3 This includes—but is not limited to—murder,4 fraud,5 and arson convictions.6 Currently, only one jurisdiction in the United States has enacted legislation to address this problem.7 There are three basic options of what to do when a criminal dies before exhausting his right to appeal: (1) abate the conviction; (2) stay the proceedings (essentially, refuse to abate or review the conviction outright); and (3) allow for substitutive appeal. Historically, a large majority of courts abate the conviction ab initio when a defendant dies before exhausting his right to appeal.8 Abatement ab initio9 acts to erase all 3 See infra Part I.A. 4 See, e.g., Schaefer, 146 Cal. Rptr. 3d at 501 (where the defendant was convicted of second degree murder and ordered to pay the victim restitution but died before appealing his conviction). 5 See, e.g., United States v. Lay, 456 F. Supp. 2d 869, 870, 875 (2006) (where the court abated former Enron Chief Executive Officer Kenneth Lay’s conviction of “conspiracy to commit securities and wire fraud” among others crimes, when defendant Lay died before exhausting his right to appeal). 6 See, e.g., United States v. Estate of Parsons, 367 F.3d 409, 411, 418 (5th Cir. 2004) (where defendant was convicted of arson (among other crimes) and ordered to pay restitution, and the court abated his conviction because he died before exhausting his right to appeal). 7 That jurisdiction is the State of Virginia. See Bevel v. Commonwealth, 717 S.E.2d 789, 794 (Va. 2011) (where the court notes in its analysis that “[i]t does not appear that abatement of a criminal case is addressed by statute in any jurisdiction in the United States” (citation omitted)); see also Tim A. Thomas, Abatement of State Criminal Case by Accused’s Death Pending Appeal of Conviction—Modern Cases, 80 A.L.R.4th 189 (1990). Further, while the right to appeal is not granted in the Constitution, all jurisdictions have made post-trial review “an integral part of the adjudicatory mechanism” and most states grant defendants at least one appeal of right. See Marc M. Arkin, Rethinking the Constitutional Right to A Criminal Appeal, 39 UCLA L. REV. 503, 576 (1992); see also infra Part IV.B (detailing the current status of abatement). Since the most recent update of the A.L.R., in February 2012, Virginia enacted a statute that adopted a procedure to follow when defendants die while their appeals are pending. See infra text accompanying notes 159-61. 8 See State v. Carlin, 249 P.3d 752, 760 & n.45 (Alaska 2011); see also Timothy A. Razel, Note, Dying to Get Away with It: How the Abatement Doctrine Thwarts Justice—And What Should Be Done Instead, 75 FORDHAM L. REV. 2193, 2196 (2007). 9 Ab initio means “[f]rom the beginning.” BLACK’S LAW DICTIONARY 5 (9th ed. 2009). 2013] THE IMPORTANCE OF BEING EARNED 1701 evidence the conviction ever existed.10 When a conviction is abated ab initio, the appellate court “dismiss[es] the appeal as moot . . . and remand[s] the case to the [trial court] to vacate the judgment and dismiss the indictment.”11 For the purpose of this note, the phrase strict abatement ab initio means that all aspects of the conviction—including restitution orders and any proceedings leading up to the conviction—are erased when the defendant dies. Some jurisdictions apply looser forms of abatement ab initio where only the conviction and the proceedings leading up to the conviction are abated but the restitution order is not abated (or other slight variations of the abatement ab initio doctrine). This is detailed infra in the Appendix, Table 2. Jurisdictions that apply the abatement doctrine do so because they view the presumption of innocence to endure until a final review of the case, and they believe that anything short of abatement would unjustly harm the defendant’s family by forcing them to pay for the wrongs of the deceased defendant.12 While abatement accounts for the interests of the defendant’s family, it ignores the interests of the victims, their families, and collateral third parties.13 Simply staying the proceedings and refusing to abate a conviction is not an adequate solution to the unfairness the abatement doctrine creates. In a minority of jurisdictions in the United States, the presumption of innocence is erased at the moment of conviction. This is detailed infra in the Appendix, Table 3. The presumption then becomes that the conviction was proper and the defendant is guilty unless proven otherwise through appeals.14 Jurisdictions that view the presumption of innocence this way stay the proceedings (refuse to abate)15 when a defendant dies and do not allow the filing or the continuance of any appeals; any prosecutorial proceedings that were initiated before the defendant’s death abate.16 This practice is as unfair as abating convictions because instead of 10 See Durham v. United States, 401 U.S. 481, 483 (1971), overruled in part by Dove v. United States, 423 U.S. 325 (1976); State v. Devin, 142 P.3d 599 (Wash. 2006); see also Razel, supra note 8, at 2196. 11 United States v. Koblan, 478 F.3d 1324, 1325 (11th Cir. 2007). 12 See United States v. Estate of Parsons, 367 F.3d 409, 413 (5th Cir. 2004). 13 See infra Parts II & III. 14 Gollott v. State, 646 So. 2d 1297, 1300 (Miss. 1994); see also State v. Carlin, 249 P.3d 752, 762 (Alaska 2011) (noting that to rely on the presumption of guilt violates defendants’ rights); infra Part I.B. 15 To stay means “the postponement or halting of a proceeding, judgment, or the like.” BLACK’S LAW DICTIONARY 1548 (9th ed. 2009). 16 See, e.g., Estate of Parsons, 367 F.3d at 413. 1702 BROOKLYN LAW REVIEW [Vol. 78:4 harming victims, this practice denies defendants their right to legal review, forces their families to pay untested restitution orders, and—like abatement—ignores possible harmful effects to third parties.17 For the most part, a third doctrine—substitution—can solve all these problems by allowing interested third parties to substitute for the defendant in the appeal after his death. This doctrine, currently recognized in ten states, affords defendants their right to post-trial review, gives defendants’ families the opportunity to appeal the conviction and thus the restitution orders without unjustly forcing them to pay compensation to anyone, and mitigates the problems caused to third parties in subsequent civil proceedings.18 This is detailed infra in the Appendix, Table 4. Substitution also ensures that victims maintain the possibility of receiving restitution, allows the record to legally reflect the conviction’s existence for subsequent civil proceedings (like insurance payments), and mimics what might have happened if the defendant lived to see his appeal through.19 This note argues for the application and codification of the substitution doctrine because of the important and resounding primary and collateral effects felt by victims, insurers, families, and society at large when they are forced to pay for (or denied payment from) an unreviewed conviction. Part I of this note describes the practices courts most commonly follow in the case of a defendant’s death before exhausting his right to appeal, and comments on the different positions courts take regarding abatement of restitution orders. Part II discusses problems that arise when a defendant dies while his appeal is pending and the trial process is stopped prematurely, including the harms it causes defendants, primary victims, and governments. For the purpose of this note, the term primary victims refers to the people who were directly victimized by the criminal act; primary victims include the person who was murdered, the person who was raped, the person who was robbed, etc. Part III of this note discusses the harm premature adjudication may impose on collateral victims, and specifically analyzes the effect of abatement on insurance companies and society at large. For the purpose of this note, the term collateral victims refers to all parties who are secondarily harmed by the 17 See infra Parts II & III. 18 See infra Part V. 19 See infra Part V. 2013] THE IMPORTANCE OF BEING EARNED 1703 judicial proceedings. Collateral victims are the defendant’s estate, the victim’s family, insurance companies, etc. Part IV discusses the current state of legislation regarding victims’ rights, the lack of abatement legislation (and its effect on victims’ rights statutes) and provides a state-by-state, circuit- by-circuit overview of each jurisdictions’ current abatement practices. Part V offers a model substitution statute and illustrates that allowing an interested third party to substitute in the appellate proceedings is the only practice that adequately balances the interests of all parties involved. Ultimately, this note advocates for legislatures to codify, and courts to adopt, the practice of substitution when a defendant dies while his appeal is pending. I. ABATEMENT IN AMERICA In order to understand the fundamental differences between abatement ab initio, substitution, and refusing to abate it is simplest to compare the effects with an example. The following hypothetical was created for the purpose of this note.20 A. Hypothetical Case and Potential Results Fred and Wilma, a married couple, have life and homeowner’s insurance. One day their house catches fire and Wilma dies in the fire. The police investigate and determine this was both arson and murder. A neighbor, Barney, is arrested and convicted of both crimes. He is sentenced to thirty years in prison and to pay restitution to Fred for Wilma’s life and the house. Barney appeals his conviction but dies shortly after the appeal is filed. 1. Hypothetical Results of Abatment If Barney and Fred live in a jurisdiction that practices abatement ab initio, Barney (or, rather, his estate) is in luck.21 If the court were presented with his appeal, it would simply dismiss the appeal and abate the conviction. In most jurisdictions, even if Barney did not initiate the appeal the court would abate his conviction. Barney would be presumed innocent 20 The facts herein are loosely based on multiple cases and their results in different jurisdictions all discussed elsewhere in this note. 21 Because Barney is dead, it is actually his estate that will benefit. 1704 BROOKLYN LAW REVIEW [Vol. 78:4 because he did not exhaust his right to appeal and a person is innocent until proven guilty—not just at trial, but by also failing on all appellate attempts. The record would reflect that no conviction ever occurred and no subsequent criminal action could be brought against Barney for these crimes because Barney is dead. Barney’s estate would not be required to pay the restitution order for Wilma’s life or Fred’s home. Because it is possible that his conviction was in error, this result would be fair to Barney and his estate. Because Fred and Wilma had house and life insurance, Fred will be able to file a claim with his insurance company to recover for his monetary losses. But this means that the cost of repairs shifts to Fred’s insurer, who will be forced to compensate Fred for the harm allegedly caused by Barney. Theoretically, the insurance company could step into Fred’s shoes as subrogee and pursue Barney’s estate for indemnification of their expenses, but it could not use proof of Barney’s conviction to shift liability (because no conviction exists). Without a conviction, if the insurance company wants to be indemnified it will have a more difficult time proving that Barney was responsible for the crime and it will cost more for the insurance company to meet its burden of proof (where a conviction would essentially speak for itself). If the indemnification suit is unsuccessful then the insurance company (and the clients who pay premiums to that insurance company) lose even more money than just the compensation to the victim. 2. Hypothetical Results of Staying the Proceedings If Barney and Fred live in a jurisdiction that refuses to abate convictions, it is Fred who is in luck (legally, that is). Following Barney’s conviction, Barney would be presumed guilty and his death would simply result in the dismissal of his appeal as moot without any change to his conviction. Fred would receive payment from Barney’s estate to compensate for the loss of his wife and home. This is fair to Fred because Barney was, in fact, convicted for the crimes against Fred and his family. Unfortunately for Barney (or his estate), this means that his conviction receives no review. If his conviction were in error, this can never be proven. Barney’s estate would be forced to pay the restitution orders to Fred even if Barney was innocent. 2013] THE IMPORTANCE OF BEING EARNED 1705 3. Hypothetical Results of Substitution If Barney and Fred live in a jurisdiction that allows substitution for posthumous appeals, everyone is in luck (at least as far as judicial fairness is concerned). Barney’s estate (or any other eligible third party)22 would be permitted to step into Barney’s shoes for the purposes of the appeal if they choose. Even if Barney did not file the appeal before he died, an eligible third party could choose to bring the appeal. The court would review the appeal as if Barney were still alive. If the court were to determine that there was no miscarriage of justice in Barney’s conviction, then Barney’s conviction and restitution order would stand and Barney’s estate would pay restitution to Fred. On the other hand, if the court determines there was a miscarriage of justice in Barney’s conviction, then the court would abate Barney’s conviction. Barney’s estate would not be burdened with paying a restitution order that was issued in error. B. The Development of the Abatement Doctrine The abatement doctrine is born from state and federal common law, and the lack of statutory codification leaves modern courts questioning their jurisdictional practices and continually changing their positions on abatement.23 The dilemma forces courts to consider whether justice is better served if courts stay proceedings or abate convictions.24 The varying interests of parties involved in litigations have called courts to question the 22 Note that the term eligible could vary from state to state. See the proposed substitution statute set forth in Part V.B. of this note for suggested eligibility guidelines. 23 See, e.g., State v. Carlin, 249 P.3d 752, 754 (Alaska 2011) (overruling Hartwell v. State, 423 P.2d 282 (Alaska 1967) and holding that substitution must be permitted after the defendant’s death “[b]ecause of changed conditions, including increased recognition of the rights of crime victims and rejection of abatement by some state courts”); State v. Makaila, 897 P.2d 967 (Haw.), opinion after reinstatement of appeal, 927 P.2d 419 (Haw. 1995) (overruling State v. Gomes, 554 P.2d 235 (Haw. 1976), and holding that substitution must be permitted because “it seem[ed] unreasonable automatically to follow the abatement ab initio rule and pretend that the defendant was never indicted, tried, and found guilty”); State v. Korsen, 111 P.3d 130, 135 (Idaho 2005) (overruling State v. Stotter, 175 P.2d (Idaho 1946), and staying the proceedings because abatement ab initio failed to recognize victims’ rights); State v. Benn, 274 P.3d 47, 49-50 (Mont. 2012) (overruling State v. Holland, 955 P.2d 164 (Mont. 1998), and staying the proceedings because abatement ab initio failed to recognize victims’ rights); State v. Devin, 142 P.3d 599 (Wash. 2006) (overruling State v. Furth, 144 P. 907 (Wash. 1914), because abatement ab initio “conflict[ed] with modern laws that compensate crime victims for their suffering”). 24 See infra note 162; see also Joseph Sauder, Note, How a Criminal Defendant’s Death Pending Direct Appeal Affects the Victim’s Right to Restitution Under the Abatement Ab Initio Doctrine, 71 TEMP. L. REV. 347, 360 (1998). 1706 BROOKLYN LAW REVIEW [Vol. 78:4 purpose of criminal law, and the different answers to this question have shaped the current legal landscape of abatement.25 In recent years, when faced with the issue, courts have been vocal about their reluctance to adhere to past precedent but have nonetheless adhered because of a lack of statutory guidance to do otherwise.26 An increased awareness of victims’ rights has started to show an impact on the approach courts use when faced with this problem. In the past decades, five state courts abolished the dated practice of abatement ab initio by overruling long-standing precedent that requires courts to apply the doctrine.27 Most courts, however, still choose to uphold the doctrine of abatement ab initio absent legislation ordering otherwise.28 C. Abatement Ab Initio Abatement ab initio was the first procedure to develop in the event a defendant died before exhausting his right to appeal and is the most widely used procedure today.29 Abatement ab initio acts to completely erase “not only the appeal but also all proceedings had in the prosecution from its inception.”30 When courts strictly follow abatement ab initio, they vacate all penal, compensatory, and restitutionary aspects of punishments.31 Abatement ab initio emerged in the early 1900s, from United States v. Pomeroy.32 In Pomeroy, the defendant was convicted of violating the Interstate Commerce Act and sentenced to pay a fine as part of his criminal punishment.33 The defendant died before satisfying the restitution order and his executrix moved to abate the conviction.34 The court abated both the conviction and the fine, reasoning that “the object of 25 See infra note 162. 26 See supra note 23. 27 See infra note 153 and accompanying text. 28 See, e.g., Bevel v. Commonwealth, 717 S.E.2d 789, 795 (Va. 2011). 29 See id. at 793. Though courts recently have begun to stray from abatement, it is still the most widely used practice today. For a comprehensive list of states that strictly apply abatement ab initio see infra Appendix, Table 1. For a detailed list of states that apply other forms of abatement, see infra Appendix, Table 2. 30 Durham v. United States, 401 U.S. 481, 483 (1971), overruled in part by Dove v. United States, 423 U.S. 325 (1976). 31 United States v. Morton, 635 F.2d 723, 726 (8th Cir. 1980). 32 United States v. Pomeroy, 152 F. 279 (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). 33 Id. at 280. 34 Id. 2013] THE IMPORTANCE OF BEING EARNED 1707 criminal punishment is to punish the criminal, and not to punish his family.”35 In the years following the Pomeroy decision, nearly all state and federal courts confronted with this issue adopted the practice of strict abatement ab initio,36 as did the Supreme Court half a century later in Durham v. United States.37 To the extent that abatement applied to writs of certiorari, however, the Court overruled Durham five years later in Dove v. United States.38 In Dove, the defendant petitioned the Court for writ of certiorari and the Court dismissed his petition because the defendant died before the petition went before the Court. In the years following the Dove decision, “the federal circuit courts have concluded that Dove did not abrogate the abatement doctrine entirely for criminal cases, but only for those cases that had concluded their initial appeals.”39 Courts that continue to practice abatement ab initio do so because it protects defendants’ rights40 and protects defendants’ families from punishment.41 Today, twelve states, the District of Columbia, and seven circuit courts apply strict abatement ab initio.42 Six other states and three other circuit courts currently apply some other form of the abatement doctrine when a defendant dies while his appeal is pending.43 35 Id. at 282. But see infra note 162. 36 See Razel, supra note 8 at 2199-2203. 37 401 U.S. 481, 483 (1971) (where the Court convicted the defendant for possession of a counterfeit bill and the defendant died while his appeal was pending), overruled by Dove v. United States, 423 U.S. 325 (1976). The Supreme Court’s decision to adopt abatement ab initio turned on the lower federal courts’ overwhelming unity in following Pomeroy. Id. 38 423 U.S. 325. 39 Bevel v. Commonwealth, 717 S.E.2d 789, 793 (Va. 2011). Note that the right to appeal criminal convictions is not a right that is embedded in our Constitution, but a right that has developed in each jurisdiction over the years. See Arkin, supra note 7, at 576. 40 See United States v. Estate of Parsons, 367 F.3d 409, 415 (5th Cir. 2004). 41 See Crooker v. United States, 325 F.2d 318, 321 (8th Cir. 1963). Some jurisdictions, though, take a strictly procedural approach and claim convictions must abate because the court no longer has jurisdiction over a deceased party. See, e.g., State v. Griffin, 592 P.2d 372, 373 (Ariz. 1979). This rationale is flawed, and ignores the rights of primary and collateral victims and forces their claims to fall silent. A court “obtains personal jurisdiction over a criminal defendant by the service of a summons and complaint or by arrest. Once personal jurisdiction is obtained over a party, it will generally not be lost as a result of subsequent events.” State v. Carlin, 249 P.3d 752, 763 (Alaska 2011); accord FED. R. APP. P. 43; FED. R. APP. P. 12.1 (dictating that the “[c]ourt of appeals . . . retains jurisdiction unless it expressly dismisses the appeal”). 42 See infra Appendix, Table 1. 43 See infra Appendix, Table 2.