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Dead Criminals and Abatement

What happens when a convicted criminal dies while his appeal is pending?  Matt Bonesteel has this article in the WaPo on the Aaron Hernandez case.  Massachusetts follows the traditional, but stupid, rule:

The chief legal counsel to the Massachusetts Bar Association tells the Boston Globe that Aaron Hernandez's murder conviction over the 2014 shooting death of Odin Lloyd will be voided after the former New England Patriots star was found dead in his prison cell early Wednesday morning.

Hernandez was in the process of appealing his conviction at the time of his death. Because of a long-standing legal principle called "abatement ab initio" -- meaning "from the beginning" -- a person's case reverts to its status at the beginning if they die before their legal appeals are exhausted.
Appeal is not a constitutionally required part of the criminal process.  There generally were no appeals in criminal cases at the time this country was formed.  In the original Judiciary Act of 1789, Congress provided that important criminal cases would be tried before three-judge circuit courts, and their judgment was final.  There was no appeal to the Supreme Court, and habeas corpus was not available to collaterally attack the judgment of a court of general jurisdiction.

Today, all states provide appeals, and for good reason.  But if the appeal is dismissed because the defendant dies, it should be dismissed leaving the trial court judgment intact, as most dismissals of appeals do, without this special rule for dead defendants.  After all, the vast majority of convictions are valid and are affirmed if the appeal runs its course.  Our law recognizes that it is better that ten guilty go free than one innocent be punished, but after trial the ratio is a lot higher than 10/1, closer to 100/1, and there is no issue of unjust punishment remaining anyway.


IIRC, Ken Lay's memory benefited from this as well.

It may help Hernandez' relatives. I wonder if, per the Court decision today, his estate will get whatever fines he paid to the state.

Fortunately, Washington State abandoned this old-timey doctrine quite a few years ago, in large part because it deprives deserving victims of any possibility of receiving restitution.

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