[Congressional Record Volume 152, Number 130 (Thursday, November 16, 2006)]
[Senate]
[Page S11049]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               PRESERVING CRIME VICTIMS' RESTITUTION ACT

  Mr. SESSIONS. Mr. President, I am pleased to join with Senator 
Feinstein and cosponsor the Preserving Crime Victims' Restitution Act 
of 2006.
  When a criminal defendant pleads guilty or is found guilty by a jury 
of his peers but dies before sentencing or while his case is on appeal, 
the defendant's victims should not sustain a financial loss and the 
defendant's estate should not profit from his crimes. The judicially 
created doctrine of abatement provides, however, ``that the death of a 
criminal defendant pending an appeal of his or her case abates, ab 
initio, the entire criminal proceeding.''

  In its most extreme form, the scope of the doctrine can be 
breathtaking. As the U.S. Court of Appeals for the Fifth Circuit held 
in United States v. Parsons:

       [T]he appeal does not just disappear, and the case is not 
     merely dismissed. Instead, everything associated with the 
     case is extinguished, leaving the defendant ``as if he had 
     never been indicted or convicted.''

  Common sense requires that punishments like imprisonment or 
probationary supervision terminate once a defendant dies. But when a 
criminal conviction involves remedial measures such as restitution to 
the victims of the crime or implicates civil forfeiture of property 
connected with the crime, we shouldn't pretend that nothing ever 
happened. A convicted defendant's death while his case is pending may 
cheat the hangman, and it may cheat the jailer--but it shouldn't cheat 
the victims.
  Taking a criminal case to trial and obtaining a conviction can 
involve thousands of hours of work and a huge commitment of resources. 
In the recent conviction of Ken Lay, for example, the trial took nearly 
4 months and cost the taxpayers millions of dollars. When a criminal 
conviction involves financial restitution to the victims of the crime 
or when the conviction could be used in a later civil law suit, those 
effects of the conviction should not be erased by the death of the 
defendant. It is wrong to force the victims or the government to start 
over from scratch.
  The Preserving Crime Victims' Restitution Act addresses the 
unnecessary and unfair effects of the abatement doctrine. It preserves 
restitution and the potential use of a criminal conviction. in later 
civil proceedings such as civil forfeiture, while protecting a 
defendant's rights.
  If a defendant dies after pleading guilty or being found guilty by a 
jury, restitution and the use of the conviction in civil proceedings 
will be permitted. In such cases, the bill allows the defendant's 
estate to step into his shoes and continue to defend the conviction. 
The estate can appear on behalf of the defendant at sentencing, and it 
can file post-trial motions. The estate can also appeal the conviction.
  This assures that the integrity of the criminal and appellate process 
is preserved and that there is an adequate opportunity to challenge the 
validity of a conviction and ensure that justice has been done. 
Basically, under this bill, the criminal and appellate process move 
forward with respect to restitution and use of a conviction in later 
civil proceedings just as though the defendant were still alive.
  Ultimately, the Preserving Crime Victims' Restitution Act is about 
fairness. It is fair to victims--who too often get overlooked in the 
criminal process. It is fair to the Government--which may have 
committed enormous time and resources to obtaining a conviction. And it 
is fair to the defendant's estate--which should be allowed to represent 
the defendant's interests and contest the Government's case but should 
not be allowed to profit from crime simply because a defendant dies.
  I hope we can move quickly to pass the Preserving Crime Victims' 
Restitution Act of 2006, and I urge my colleagues to support it.

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