When former NFL player Aaron Hernandez committed suicide, news reporters picked up on a curious doctrine: abatement ab initio. Courts use this common law doctrine, meaning abatement “[f]rom the beginning,”1 to vacate the conviction of a defendant who dies while that conviction is pending appeal.2 Hernandez had been convicted of murder and committed suicide while his appeal was pending, leading the court to abate his conviction.3 Reporters speculated that this erasure would weaken civil claims against his estate.4 Recently, in United States v. Brooks,5 the Second Circuit abated another high-profile conviction: that of businessman David H. Brooks. Brooks died while his convictions were still pending appeal. The court abated both his convictions and other penalties he had received at sentencing, including orders directing him to pay money to the victims of his fraud.6 Federal courts frequently abate criminal fines — orders to pay money to the government as punishment for a crime. But whether to abate restitution — orders to pay money to victims, often through a government-administered account — is a more controversial question. The answer depends on how courts justify abatement: the traditional “punishment” rationale does not support abating restitution, but the modern “finality” rationale does. The Brooks court invoked the finality rationale, holding that restitution ordered (but not yet paid) should abate.7 Recognizing that victims may suffer as a result, the Second Circuit has invited Congress to amend the abatement doctrine.8 It is time that Congress accept that invitation. The legislature should scrap abatement and instead allow an appeal to survive the defendant.
Brooks found tremendous commercial success as founder and CEO of DHB Industries, Inc., a publicly traded producer and vendor of body armor.9 Brooks openly celebrated that success: so extravagant were his expenditures that in 2005 he attracted media attention for hiring popular musicians Aerosmith, the Eagles, Fleetwood Mac, Tom Petty, Kenny G, and 50 Cent to perform at his daughter’s bat mitzvah.10 Brooks resurfaced in the media a few years later, this time in stories of a more serious tenor, when he was indicted on criminal charges.11 Brooks had allegedly “participat[ed] in several schemes to defraud shareholders,” including manipulating his company’s books to inflate its profitability, using company assets for personal expenditures, obstructing a Securities and Exchange Commission investigation, and failing to pay income taxes.12 Brooks was arrested in October 2007, but released on $400 million bail,13 “the largest ever imposed on an individual defendant.”14 In January 2010, Brooks was found to have violated the terms of his bail by failing to disclose his holdings and concealing assets abroad.15 The district court ordered Brooks’s detention and forfeiture of $48 million, the cash security on the bond.16
On September 14, 2010, Brooks was found guilty and sentenced to seventeen years in prison.17 At sentencing, Judge Seybert of the United States District Court for the Eastern District of New York scolded Brooks for showing “not a glimmer, not a whisper, not a moment of regret.”18 The sentence was applauded by government officials, including then–U.S. Attorney Loretta Lynch, who lambasted Brooks for using shareholder money as “a vehicle for plunder and a means to feed his own greed.”19 In addition to imprisonment, restitution to the Internal Revenue Service for tax evasion, a criminal fine, a special assessment, and forfeiture of the cash security on his bond, Brooks was ordered to pay over $90 million in restitution to the victims of his fraud.20
Brooks never paid that restitution. He filed an appeal of the nontax convictions and moved successfully to stay disbursement of the assets he had previously deposited with the court.21 On October 27, 2016, while his appeal was still pending, Brooks passed away.22 Upon Brooks’s death, his estate moved to abate his convictions, fines, restitution orders, forfeited bail cash security, and special assessment.23
The Second Circuit abated Brooks’s convictions that were pending appeal, and some, but not all, of the monetary exactions he owed.24 Writing for the panel, Judge Droney25 explained the two justifications for abatement: first, the finality rationale, that “a defendant not stand convicted without resolution of the merits of an appeal,” and second, the punishment rationale, that “to the extent that the judgment of conviction orders . . . sanctions that are designed to punish the defendant, that purpose can no longer be served.”26 The court then turned to whether abatement applied to each of Brooks’s sentences: the convictions, the restitution orders, and the forfeiture of the cash security. The first answer came easily: the court abated all convictions pending appeal, in conformity with an “almost unanimous[]” consensus among the federal courts of appeals.27 The court refrained, however, from abating Brooks’s unappealed convictions.28 The court found that, between the rationales for abatement, “finality is . . . paramount”; unappealed convictions, since they are final, do not abate.29
The Second Circuit then broke new ground: having previously reserved the question,30 the court held that “when a criminal conviction abates . . . any restitution ordered as a result of that conviction must also abate.”31 The panel cited the recent Supreme Court decision in Nelson v. Colorado.32 There, a living defendant’s conviction was invalidated; the Court held that fees and restitution paid by the defendant to the state had to be refunded.33 Brooks acknowledged that Nelson was not an abatement case, but maintained that it “[n]evertheless . . . compels abating monetary penalties where a defendant dies.”34 The court also reasoned from its own precedent, citing United States v. Libous,35 an abatement case decided just months before Brooks. Libous had abated criminal fines already paid by a defendant before he died.36 The Brooks court argued that the rationale underlying the abatement of fines applied just as well to restitution: “[S]ince Brooks’s convictions have abated and will therefore never be final, the Government lacks the authority to keep the funds related to those abated convictions.”37 The court limited its holding, however, to restitution funds still within state control, reserving the question of whether restitution already disbursed to victims should also abate.38
The Brooks court acknowledged that abating restitution could frustrate Congress’s purpose in passing the Mandatory Victims Restitution Act of 199639 (MVRA), “which requires restitution to be ordered for victims of certain crimes who have suffered as a result of a defendant’s conduct.”40 Nevertheless, the court said, that requirement holds only “where a defendant has been ‘convicted of an offense,’” whereas upon abatement, Brooks was no longer convicted.41 The court insisted that whether the restitution was compensatory or punitive was “irrelevant.”42
Finally, the court refused to abate the forfeiture of the cash security and upheld the forfeiture order.43 The court noted that unlike fines and restitution orders, both criminal sanctions, bail is a species of “suretyship and contract law.”44 Moreover, the court said, “bond forfeiture also does not implicate the two principles underlying . . . abatement.”45 Regarding finality, the court found no “non-final matter to abate,” and regarding punishment, the court noted that “a forfeited bail bond is not a punishment . . . but instead is a remedy” for breach of a bail release agreement.46
By focusing on the finality rationale and abating a restitution order, Brooks faithfully applied the reasoning of Nelson. But the finality rationale constitutes a departure from the traditional justification for abatement, and that departure has concerning implications for victims. In light of those concerns, Congress should dispose of the abatement doctrine, even for convictions. Instead, a deceased defendant’s estate should have the option of continuing to litigate the appeal.
Traditionally, abatement was justified on the basis of the punishment rationale — that the purpose of criminal sentences and fines is to punish the defendant, an objective rendered moot once the defendant dies.47 On the punishment rationale, abatement applies to fines, which have a punitive purpose, but not to restitution orders, which have a compen-satory purpose.48 In the 1980s, however, many federal courts began adopting the finality rationale49 — “that the state should not label [a defendant] as guilty until he has exhausted his opportunity to appeal.”50 On the finality rationale, the abatement for a conviction leaves “no legal basis”51 for any sentence imposed — whether punitive or compensatory in nature.52 This difference in rationales has given rise to a circuit split as to whether restitution orders should abate.53
By the time Brooks was on the docket, the Second Circuit was already partial to the finality rationale.54 The court has continued a trend among federal courts of “refus[ing] . . . to examine abatement’s history.”55 Instead, Brooks reasoned that the finality rationale was mandated by Nelson.56 There, the Court held that when a conviction is invalidated, due process requires the state to “refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.”57 In the Brooks court’s view, Nelson “compels” abatement of restitution — in part because of Nelson’s “specific inclusion . . . of restitution.”58
Widespread reliance on the finality rationale may have negative consequences for victims. Restitution is often critical to compensating victims for their harms.59 Brooks was not the first defendant whose abated conviction left victims unable to recoup tremendous financial losses.60 Perhaps anticipating this criticism, the Brooks court tried to soften the blow of abating restitution by noting that “[v]ictims of criminal offenses may also be compensated through a civil action against the estate of the defendant.”61 True, a victim could theoretically recover his or her losses in civil court.62 But whereas receiving criminal restitution requires no action on the part of the plaintiff, pursuing civil restitution costs time and money. That price may be prohibitive — for example, if a plaintiff cannot afford representation, or if each of several plaintiffs suffers harm too minor to litigate independently. Abatement also weakens the plaintiff’s civil case: without an admissible conviction, a plaintiff must prove every element of the alleged tort, including elements that would have been necessarily decided as part of the conviction.63 Worse yet, abatement of restitution creates perverse incentives for defendants: the Second Circuit has yet to abate restitution already disbursed to victims,64 so a defendant anticipating the possibility of abatement may be motivated to delay payments.65
Brooks thus presents a problem: the finality rationale has reshaped the abatement doctrine, and Nelson’s reinforcement of that rationale has “unsettling” consequences for victims.66 But Libous hinted at a solution: “Abatement ab initio is a common law doctrine: If Congress deems it an undesirable one, it can act accordingly.”67 It can, and it should. The Second Circuit cases illustrate how courts reach abatement’s unpleasant consequences in two steps: First, when a defendant dies while his or her conviction is pending appeal, the court’s “precedents require” abatement of that conviction.68 Second, once a court abates the conviction, due process requires the “refund [of related] fees, court costs, and restitution.”69 The second step involves due process,70 a constitutional principle beyond Congress’s power of modification by statute. But abatement is required by nothing but the common law.71 The first step, therefore, is within Congress’s power to change. Congress should use this power to abolish abatement and instead permit a defendant’s estate to litigate unexhausted appeals. Such legislation would preserve the primary benefit of abatement: that “a defendant not stand convicted without resolution of the merits of an appeal.”72 It would also provide benefits that abatement does not: Allowing the appeal to be decided on the merits would prevent the undue erasure of restitution orders. And encouraging more merits decisions would promote a central objective of appellate review: to clarify the law.73 No wonder, then, that more than a dozen states have already adopted this approach.74
Critics might argue that litigating the appeal of a deceased defendant would constitute a drain on judicial time and resources. They might further stress that not every defendant is a Brooks — unjustly enriched by fraudulent schemes and wealthy enough to pay victims. If the defendant is indigent, the court’s failure to abate a restitution order may saddle the defendant’s relatives with debt that they cannot pay and do not deserve. But these issues can be remedied by sound prosecutorial discretion: prosecutors should continue to litigate cases like Brooks, in which victims are significantly harmed and defendants are able to pay restitution. Such cases have high stakes from a societal perspective. And allowing them to continue would hardly burden judicial dockets, given that parties would pursue only a subset of the already rare cases in which abatement is relevant. Even in light of such reasoning, however, courts may be reluctant to abandon a doctrine with widespread acceptance and long history. Until Congress explicitly abolishes abatement, federal courts may remain bound to the far-reaching doctrine and disinclined to address its ugly consequences.