Tag Archives: abatement ab initio

A Few More Short Takes – Update for December 14, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SPIRIT OF THE SEASON

The Romans had a saying, “De mortuis nil nisi bonum dicendum est,” or – as my sainted Latin teacher Emily Bernges would have translated, “Of the dead, nothing but good shall be said.”

This sentiment is enshrined in federal law as the “abatement ad initio” doctrine, which holds that a trial conviction is vacated when a defendant dies before he or she can exhaust the direct appeal process. The doctrine is followed by every federal court in the country.

In a Scrooge-worthy appeal in the 1st Circuit, however, the government argued last week that the Circuit should “break new ground by holding that a defendant’s conviction outlasts his death and does not get wiped away just because he died before his appeal could be heard,” according to Reuters.

grinch151213Former biotech chief executive Frank Reynolds was convicted of securities fraud in 2020 and sentenced to 84 months. He died a year ago with his appeal still pending. In its argument, the government admitted that every appellate circuit in America would vacate Frank’s conviction, but it argued that those courts’ opinions should not matter. Vacating the conviction and “restitution order when a defendant dies while his or her direct appeal is pending would flout [a] clear Congressional directive,” the government contends, that when a defendant subject to a restitution order dies “the individual’s estate will be held responsible for any unpaid balance of the restitution amount” under 18 USC § 3613(b).

At oral argument, one skeptical judge told the government that it needed “a pretty good argument to upset an apple cart that is going uniformly across the country without any sign of being a big problem.” Another member of the panel noted that the DOJ could always bring a civil case against a defendant’s estate for restitution.

United States v. Reynolds, Case No 20-1268 (1st Cir, argued Dec 4, 2023)

Reuters, Convictions should outlive defendants’ deaths, US tells appeals court (December 4, 2023)

CONSERVATIVE SUPPORT FOR CARES ACT HOME CONFINEES

The Senate has yet to take up S.J.Res. 47, the Republican effort to force 3,000 CARES Act home confinees back to prison. Last week, officials of the Conservative Political Action Coalition and the Faith and Freedom Coalition – wrote in The Hill that “the CARES Act’s home confinement provision slowed the virus, saved millions of taxpayer dollars, and maintained public safety. By all measures, it has been a success.”

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The authors challenged Republican arguments that CARES Act prisoners were committing new crimes and terrorizing communities. “Of the people moved to home confinement, 521 were returned to custody. This equates to a 4 percent recidivism rate, less than one-tenth of the BOP average. But looking at the numbers more closely, the CARES Act recidivism rate is much more impressive than that. Of the 521 returned to prison, 296 were sent back for positive drug or alcohol tests, 90 for leaving their homes, and 113 for technical violations. That means that only 22 people were re-incarcerated for committing new crimes.”

The recidivism rate for new crimes works out to 0.2%, about 1/200th of the BOP average.

The Hill, There’s no reason to send these 3,000 people in home confinement back to federal prison (December 3, 2023)

S.J.Res. 47, A joint resolution providing for congressional disapproval under… the rule submitted by the Department of Justice relating to “Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act“

JOBS FOR ALL!

A bipartisan group of Representatives last week introduced the BOP Direct-Hire Authority Act, H.R. ____ (no bill number yet) intended to alleviate BOP staffing shortages by letting the agency hire personnel directly instead of the standard federal employment process that goes through the federal Office of Personnel Management and takes up to six months.

understaffed220929Reps Glenn Grothman (R-WI) and Matt Cartwright (D-PA) are spearheading the effort to try to turn around staffing losses of 20% in the last 7 years. The bill is supported by 11 co-sponsors and the Council of Prison Locals C-33, the largest nationwide BOP employees union. union for BOP employees nationwide.

The bill would provide direct-hire authority for a BOP facility until it reaches a level of 96% staffing level.

H.R. ___(no bill number yet), BOP Direct Hire Authority Act

Press release, Grothman, Cartwright Introduce Bipartisan Bill to Address Staffing Shortage in Bureau of Prisons (December 6, 2023)

– Thomas L. Root

Dying to Get His Money Back – Update for June 2, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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DEATH TAKES A HOLIDAY

death170602Every few years, a notorious criminal defendant – think Aaron Hernandez or Enron’s Kenneth Lay – has the temerity to die before his appeals process is complete. When that happens, the common law doctrine of abatement ab initio is applied, and the indictment is dismissed.

What follows is a predictable hue and cry from the public that the deceased, having been found to be a scumbag, should not get a pass just because his appeals were not exhausted.

In federal court, when a convicted defendant dies while his directappeal as of right is pending, his death abates not only the appeal but also all prior proceedings as well. To effectuate this common law rule of abatement ab initio, appeals courts vacate the judgment and remand the case to the district court with instructions to dismiss the indictment. That’s the “ab initio” part: it’s not just the appeal that disappears, and the case is not simply dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never even been indicted. It’s ab initio, that is, “from the beginning.”

The doctrine of abatement arises from notions of due process: that the interests of justice ordinarily require that a defendant not stand convicted without resolution of the merits of an appeal. As one court put it, when “death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an integral part of our system for finally adjudicating his guilt or innocence.”

In 2015, Tom Libous, a long-time denizen of the ethical swamp that constitutes the New York State Senate, was convicted of making false statements to the FBI. He was already dying of prostate cancer when the Feds decided to pile on, and died in a hospice before his appeal was decided by the 2nd Circuit.

gvtsteal170602Consistent with abatement ab initio, the government agreed that his conviction should be vacated and the indictment dismissed. However, before Tom passed, he had paid a $50,000 fine and $100 special assessment. Proving once again that guys like Bernie Madoff are rank amateurs next to Uncle Sam, the government contended that while Tom’s corpse may be innocent, his next-of-kin were not entitled to get the money back. The government’s argument, reduced to its essence, was that the policies underlying abatement ab initio do not require the abatement of a paid fine.

This week, the 2nd Circuit told the government to get out its checkbook. The Court said it was pretty simple: because Tom Libous (or at least his memory) “stands as if he never had been indicted or convicted, at least in the eyes of the criminal court… he is no longer a wrongdoer. 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. Once Libous’s conviction is vacated, the state is as much entitled to retain the fine as if Libous had been acquitted. And in our system of criminal justice, the state is not permitted to charge the accused for the privilege of having been prosecuted.”

Citing a recent Supreme Court decision, the Circuit said that “once a defendant’s conviction is erased, the presumption of his innocence is restored,” and the state “has no interest in withholding from [a defendant] money to which the state currently has zero claim of right… At bottom, the state may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”

moneyback170602The government pulled out all the stops, even arguing that a fine already paid was just like time already served: time served cannot be refunded, so why should money already paid? The 2nd made short work of that argument: “We find the analogy inapt,” the Court said. “That time served cannot be abated is a principle of nature, not of law. A paid fine, by contrast, can easily be returned to the defendant’s estate.”

That is exactly what will happen to the $50,100. Tom’s widow gets it.

United States v. Libous, Case No, 15-3979 (2nd Cir., May 30, 2017)

– Thomas L. Root

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