Moments before he took his own life in a Massachusetts prison this past April, former NFL star Aaron Hernandez was a convicted murderer. The moment life passed from his body in that maximum security cell, he became an innocent man.
That’s the law. It is known as “the doctrine of abatement ab initio.” This doctrine is recognized by virtually every federal court of appeals and every state supreme court in this country.
Death While Appealing Case Leads to Dismissal
The doctrine provides that when a convicted defendant dies while an appeal of his or her conviction is still pending, their conviction becomes null and void; in a word, the conviction abates and the underlying indictment must be dismissed.
Under this doctrine, the estate of the defendant is automatically relieved of any obligation to pay fines imposed as part of the defendant’s sentence.
But what about a case where a defendant has already paid the fine? Can the defendant’s estate recover the money already paid by defendant?”
The Second Circuit Court of Appeals tackled this novel question in United States v. Libous on May 30, 2017. These facts of the case are these, as spelled out by the court:
In July 2015, former New York State Senator Thomas W. Libous was convicted by a federal jury for making false statements to the FBI. A federal judge imposed a two-year sentence on the former legislator and ordered him to pay a $50,000 fine and a mandatory $100 special assessment.
At the sentencing hearing, a doctor told the court that Libous had less than a year to live. Libous’ attorney requested that the court stay the sentence pending appeal. Not moved by Libous’ imminent death, the judge refused to stay the sentence. The defendant paid the exorbitant fine and the $100 special assessment. He was then hauled off to prison.
Libous’ attorney initiated the appeals’ process, but before it could really get underway, Libous died of prostate cancer in May 2016.
Frances Libous, the executrix of the Libous estate, filed a motion to have the former senator’s appeal withdrawn and asked the Second Circuit to vacate the judgment of conviction. The executrix also asked the appeals court to remand the case back to the district court with instructions that Libous’ indictment be dismissed and to order the lower court to refund the $50,000 fine and $100 special assessment.
Death of Defendant While Conviction on Appeal Leads to Abatement of Prosecution
The law is this: when the death of a defendant occurs while his conviction is still on appeal, “all proceedings had in the prosecution from its inception” must be abated. It is as though the defendant never put a foot in the courthouse. Under the doctrine of abatement ab initio, it is as though the defendant was never indicted or convicted.
While the Second Circuit pointed out that this doctrine is an “obscure” one, it nonetheless serves to basic purposes:
“First, the interests of justice ordinarily require that a defendant not stand convicted without resolution of an appeal” and, “second, to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served” if the defendant dies before his appeal is finalized.
Government Argues to Keep Fine Paid
The Government did not oppose the vacation of Libous’ conviction or the dismissal of the indictment brought against him. The Government also said it would have no problem with the abatement of an “unpaid fine” but added it opposed the executrix’s “request for the return of the $50,000 fine imposed on Libous at sentencing, arguing that the policies underlying abatement do not support the abatement of a paid fine.”
Fortunately, the Second Circuit rejected this argument. The court said that “in the eyes of the criminal court,” Libous stands as if he had never been indicted or convicted; that he “is no longer a wrongdoer.” The appeals court informed the Government that “there is no legal basis on which the state can retain a fine exacted from Libous as punishment for an offense he is now presumed not to have committed.”
The doctrine of abatement ab initio is clear: unpaid fines must be vacated and paid fines must be returned.
The doctrine, however, is not as clear when it comes to crime victims’ restitution orders. The courts have sent mixed signals on how the restitution orders must be handled when a defendant dies before his or her appeal is finalized.
Enron Restitution Still on Appeal
In 2006, a federal district court in Houston abated $44 million in restitution the Government was seeking for Enron victims after the company’s CEO Kenneth Lay died of a heart attack pending sentencing while the Third and Fourth Circuit Courts of Appeals that same year refused to vacate restitution orders.
The Supreme Court will ultimately have to resolve the restitution conflict under the doctrine of abatement.