There’s a broad legal doctrine known called “abatement ab initio” (meaning “from the beginning”) that says if a person passes away while they’re appealing their conviction in a criminal case, that case and the conviction are essentially wiped away.
The doctrine is based on two other legal doctrines:
- A defendant can’t continue to be penalized after they’re dead.
- A judgment for restitution isn’t final if it’s still under appeal.
There’s currently nothing in Colorado law that addresses this scenario. However, a Colorado Supreme Court ruling has provided some direction.
The Colorado Supreme Court ruling
The state’s high court heard a case a few years back where a man convicted of securities theft and fraud was ordered to make payments of approximately $200,000 in restitution to his victims. He appealed the conviction, but died before the appeal was decided.
The appellate court determined that his estate wasn’t responsible for paying this restitution under the abatement ab initio doctrine. Prosecutors in the case took the matter to the Colorado Supreme Court, which upheld that appellate decision. The ruling stated that because the state legislature had not “clearly acted to exclude restitution orders from abatement ab initio,” it was appropriate that the estate didn’t have to pay the restitution.
The ruling doesn’t address what responsibility the estate would have if a person didn’t appeal their conviction and had already begun paying restitution when they died. There’s also some question about whether the ruling would apply if a defendant died by suicide.
Prosecutors question the fairness of the ruling to victims
Prosecutors, not surprisingly, disagree with the high court’s ruling. An official with the Colorado District Attorneys’ Council said, “The estate of a deceased defendant who has previously been tried and convicted of criminal wrongdoing may, by virtue of the defendant’s passing during a pending appeal, avoid paying for the costs of the crime. Given the fact that appeals can drag on years past the statute of limitations for a civil lawsuit…a victim may be left without any legal recourse.” They’ve called on state lawmakers to address the issue.
Restitution, of course, is just one form of debt. Those administering an estate need to determine what debts, including restitution, the deceased left behind. Each type is dealt with differently. Having sound legal guidance can help administrators to avoid unnecessary complications and unnecessary payments that can devalue an estate considerably.