Friday, November 17, 2006

Feinstein and Sessions Introduce DOJ-Backed Bill to Overturn Abatement Doctrine

California Senator Diane Feinstein and Alabama Senator Jeff Sessions introduced a bill in the Senate to enact the Department of Justice's proposal to overturn the abatement doctrine that led to the dismissal of the indictment and conviction of former Enron CEO Ken Lay after his death in July 2006.  The Department had asked U.S. District Judge Sim Lake to postpone dismissing the case while it sought Congressional action to enact a retroactive reversal of the abatement doctrine (see earlier post here), but the bill was never introduced before Judge Lake finally acted on a motion by Lay's estate on October 18.  The Fifth Circuit affirmed that decision a short time later. 

The effect of the abatement doctrine, as discussed in an earlier post (here), is that the entire case disappears, which means that any asset forfeiture action must proceed as a civil case against the estate and not as an adjunct to the criminal conviction, and there can be no restitution order because the conviction is removed from the record.  A Houston Chronicle story (here) quotes Senator Feinstein reiterating the victims rights rationale first offered by the DOJ for getting rid of the abatement doctrine. Given that a majority of the federal departments do not have a budget yet and the change of party control in Congress will cause much distraction, it is unlikely the bill will go anywhere during the lame duck session.  While it can be reintroduced in the new Congress in January, the Senate Judiciary Committee may have more pressing business, although bi-partisan sponsorship certainly gives the bill a chance. (ph)


UPDATE (Nov. 25): The text of S. 4005, entitled "Preserving Crime Victims' Restitution Act of 2006" is available here. (ph)

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Tracked on Dec 4, 2006 7:22:45 AM


Does the bill allow for the appeal, which also denied because death, to go forward as well?

Posted by: Preston | Nov 17, 2006 3:57:46 AM


I have not been able to find the text of the new bill (S. 4055) yet, but the DoJ proposal would not allow for the continuation of the criminal appeal. As I recall, the conviction would remain on the books for the purposes of a restitution order and for asset forfeiture purposes, although the latter would be a quasi-civil proceeding and not a criminal proceeding. It was a very complicated proposal, and certainly your question raises a good point about whether a statute that does not permit the appeal to continue violates due process if the conviction can be used. Of course, the rule is that there is no constitutional right to appeal, but allowing use of a conviction for which no appeal of right could be taken might go too far.

peter henning

Posted by: Peter Henning | Nov 17, 2006 8:30:24 AM

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