Circuit Split: Abatement of Restitution Orders

Submitted by dan. on 2007-03-22 01:16.
Questions

Ken Lay’s death generated a lot of attention for the procedural quirk of abatement, which means that if a defendant dies while his criminal appeal is pending, the conviction must be vacated and the indictment must be dismissed. But the circuits are split about whether abatement applies to criminal orders of restitution.

In US v. Koblan, the Eleventh Circuit has ruled that abatement applies even where the defendant’s appeal has been briefed and argued, and all that remains is for the appellate court to issue its opinion. In this case, the question is whether the defendant’s estate will have to pay $275,000 to the family of his murder victim under the district court’s restitution order. The government argued that restitution orders are compensatory rather than penal, and that a broad view of abatement results in an undeserved windfall to the defendant’s estate. The Third and Fourth Circuit have accepted this logic, concluding that abatement does not impact restitution orders. But the Eleventh Circuit has previously held that abatement applies to restitution orders, reasoning that any windfall problem can be addressed through a civil suit. Accordingly, today’s panel concludes that it is bound by precedent to vacate the restitution order.

From Decision of the Day Blog, which has links to the court opinion.