Wednesday, March 7, 2012
Alexander F. Mindlin has posted 'Abatement Means What it Says' : The Quiet Recasting of Abatement (NYU Annual Survey of American Law, Vol. 67, p. 195) on SSRN. Here is the abstract:
This paper argues that the modern practice of abatement ab initio, in which courts erase the conviction of one who dies pending a first appeal, lacks the firm historical basis that is often claimed for it by those who see in it an ancient recognition of the right to one appeal. Examining early cases of abatement, the author finds that they lacked any connection to the protection of a supposed appellate right, and simply reflected the brute fact that a dead person cannot be punished. Accordingly, traditional abatement neither exonerated the defendant, nor closed off avenues of restitution for the victims.