Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, March 22, 2014

Article on Abatement


Sabrina Margret Bierer (J.D. Candidate, Brooklyn Law School, 2014) recently published an article entitled, The Importance of Being Earned: How Abatement After Death Collaterally Harms Insurers, Families, and Society at Large, 78 Brook. L. Rev. 1699 (2013). Provided below is the beginning of the introduction to the article:

Imagine a nine-year-old girl murdered, her father forced to amputate his leg, and the family faced with nearly one-and-a-half million dollars in medical expenses. Now imagine that the person who caused this harm was convicted and ordered to pay restitution to the family, but--without any legal review--the court vacated the conviction and the restitution order. These are the facts of People v. Schaefer.

With unreviewed vacations (or abatements) of convictions come many immediate and ancillary consequences that affect victims and third parties alike. Courts often issue restitution orders with criminal convictions to compensate victims for their losses. In many jurisdictions, when a court abates a conviction it also abates the corresponding restitution order, which denies the victim his interest in compensation. These immediately noticeable effects, however, are not the only problems caused by abatement. Essentially, when a conviction abates, all proof of the conviction and its consequences legally disappear, which affects the victim in subsequent civil suits and ripples the harm to collateral third parties. The absence of a criminal conviction creates unnecessary obstacles to meeting the burden of proof in a civil case. This can also create unpredictable results for insurance settlements related to the criminal conviction. Even though a defendant has been convicted beyond a reasonable doubt, and even though in most jurisdictions insurance does not pay for the wrong-doing of criminals and allows the insurer to seek indemnification from the wrongdoer through subrogation, abatement creates the possibility that insurers will have to pay for the consequences of an insured criminal or that the insurance company's ability to seek indemnification through subrogation will be diminished, which takes money out of the pockets of others insured by the company. 

Because there is limited legal guidance on what courts should do when a criminal dies before exhausting his right to appeal, the possibility of vacating punishment without review lurks behind every criminal conviction. This includes--but is not limited to--murder, fraud, and arson convictions. Currently, only one jurisdiction in the United States has enacted legislation to address this problem.


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