[Congressional Record (Bound Edition), Volume 152 (2006), Part 18]
[Extensions of Remarks]
[Pages 23868-23869]
[From the U.S. Government Publishing Office, www.gpo.gov]




     INTRODUCTION OF THE PRESERVING CRIME VICTIMS' RESTITUTION ACT

                                 ______
                                 

                          HON. ADAM B. SCHIFF

                             of california

                    in the house of representatives

                      Wednesday, December 27, 2006

  Mr. SCHIFF. Mr. Speaker, I introduced the Preserving Crime Victims' 
Restitution Act of 2006. This legislation would clarify the procedures 
that should be applied when a criminal defendant dies after he or she 
has been duly convicted but before the appeals are final.
  The need for this legislation has been made evident in recent months. 
Earlier this year, Enron founder Kenneth Lay was found guilty in both 
jury and bench trials of 10 criminal charges, including securities 
fraud, wire fraud involving false and misleading statements, bank fraud 
and conspiracy. Prosecutors sought $43.5 million in restitution for the 
victims of Mr. Lay's crimes.
  However, prior to the scheduled sentencing, Mr. Lay died from a heart 
attack. As a result, on October 17, 2006, U.S. District Judge Sim Lake 
wiped clean Mr. Lay's criminal record. The convictions were dismissed 
under a common law rule known as ``abatement,'' which nullifies a 
conviction when a defendant dies before the conviction is affirmed on 
appeal, regardless of the merits of the claim. Judge Lake made clear 
that his ruling simply followed the binding precedent issued in 2004 by 
the full U.S. Court of Appeals for the fifth circuit, in a case called 
United States v. Estate of Parsons. Last month, the Department of 
Justice withdrew its notice of appeal on Judge Lake's ruling.
  Congress holds a serious responsibility to address this situation in 
a timely manner. Unless we act quickly, thousands of Enron shareholders 
and employees, many of whom lost their entire life savings when Enron's 
$60 billion in market share and $2 billion in pension funds suddenly 
disappeared, will further lose out on what little restitution they 
might otherwise receive on the loss of their hard-earned assets and 
pension funds.

[[Page 23869]]

  The Preserving Crime Victims' Restitution Act of 2006 is the House 
companion to S. 4055 in the Senate, introduced by Senators Feinstein 
and Sessions. The Department of Justice strongly supports the 
principles contained in this legislation and the effort to fix this 
problem to ensure that despite a defendant's death, convictions are 
preserved and restitution remains available for victims of crime.
  The legislation that I am introducing today will do the following:
  Establish that if a defendant dies after being convicted of a Federal 
offense, his conviction will not be vacated. Instead, the court will be 
directed to issue a statement stating that the defendant was 
convicted--either by a guilty plea or a verdict finding him guilty--but 
then died before his case or appeal was final;
  Codify the current rule that no further punishments can be imposed on 
a person who is convicted if they die before a sentence is imposed or 
they have an opportunity to appeal their conviction;
  Clarify that unlike punishment, all other relief, such as restitution 
to the victims, that could have been sought against a convicted 
defendant can continue to be pursued and collected after the 
defendant's death;
  Establish a process to ensure that after a person dies, a 
representative of the estate can stand in the shoes of the defendant 
and challenge or appeal his or her conviction, and can also secure a 
lawyer or have one appointed; and
  Grant the Government an additional 2 years after the defendant's 
death to file a parallel civil forfeiture lawsuit to recover assets 
linked to the defendant's crimes when the Government had already filed 
a criminal forfeiture action to recover the same assets.
  Enron's collapse in 2001 eliminated thousands of jobs, tens of 
billions of dollars in market value, and $2 billion in pension plans. 
Countless former Enron employees and shareholders lost their entire 
life savings after investing in Enron's retirement plan. These victims 
have been closely following the years of preparation by the Enron Task 
Force, and the 4-month jury trial and separate 1-week bench trial, 
hoping to finally recover some restitution in this criminal case. 
Despite prosecutors finally securing a conviction, following the death 
of Mr. Lay, these efforts to achieve justice for the victims to make up 
for the harm they have suffered were eliminated. Instead, these 
individuals have been forced to start anew in their efforts to rebuild 
their lives.
  Now is the time for Congress to take action to remedy this situation. 
This legislation offers a fair solution and an orderly process in the 
event that a criminal defendant dies prior to his final appeal. I am 
hopeful that Congress will act quickly enough to assist these Enron 
victims and ensure that such an injustice never occurs again. I urge my 
colleagues to support this legislation.

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