Oklahoma Bar Journal

Abatement Ab Initio

Old Wine in New Casing or Old Wine With a New Kick?

By Mbilike M. Mwafulirwa

Aaron Hernandez – the convicted former New England Patriots football star – recently committed suicide; his death has resurrected interest in a little known but important legal concept in American criminal law and procedure: abatement ab initio.1 The doctrine of abatement ab initio applies when a convicted defendant, like Hernandez, dies before his appeal rights are fully exhausted. When applicable, the doctrine wipes clean the defendant’s slate, as though the indictment, conviction and punishment never happened.2 For example, if as a result of a conviction, a criminal fine had been levied but not collected, abatement ab initio makes the obligation to pay go away.3 The converse, however, is not true. When a defendant dies before exhausting his appeal rights but after having already paid costs, fines and restitution as a result of his conviction, despite the conviction being wiped clean, the deceased’s estate has no right to recoup the money previously paid.4 Until now.

In Nelson v. Colorado,5 the U.S. Supreme Court held, consistent with the Due Process Clause, that when a conviction is invalidated with no prospect of future reprosecution, government levied fees, penalties, restitution and court costs that rest on that conviction must be refunded to the defendant.6

Therefore, the question presented is: In light of Nelson v. Colorado, does the Due Process Clause mandate a refund of fines and restitution to a deceased defendant’s estate after invalidation of a defendant’s criminal conviction on the basis of abatement ab initio? Yes it does, subject to the specific form of abatement doctrine applicable in a given jurisdiction.

Aaron Michael Hernandez was born into a family renowned for success on the gridiron.7 In 2010, the New England Patriots signed him as a fourth-round draft.8 Life was good.

Hernandez’s fortunes quickly took a turn for the worst on June 17, 2013. On that day, Odin Lloyd, a semi-pro football player, was found dead a mile from Hernandez’s home.9 Hernandez and Lloyd were acquainted; Hernandez’s fiancé, Shayanna Jenkins, was Lloyd’s girlfriend’s sister.10 After conducting investigations, the police discovered evidence linking Hernandez to the crime; he was arrested and charged with the murder.11 After a 3.5 month trial, a Massachusetts jury convicted Hernandez of first-degree murder and some other related fire arm charges.12 Hernandez filed a notice of appeal that same day.13

On April 19, 2017, Hernandez was found dead in his prison cell.14 The autopsy found that Hernandez died of asphyxia by hanging, that was later ruled a suicide.15 Following his death, Hernandez’s appellate counsel filed a motion to abate his conviction.16 The Commonwealth of Massachusetts opposed the motion.17 After a round of briefing, the trial court granted the motion, effectively vacating Hernandez’s conviction.18 The trial court found that the doctrine of abatement ab initio was deeply rooted in Massachusetts law, and that the state’s supreme judicial court, had affirmed the principle less than a year before this case.19 Because he filed his notice of appeal before death, Hernandez’s conviction deserved to be abated.20

“[D]eath pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.”21 As a result, the underlying criminal conviction is dismissed.22 Some federal courts hold that “the rule of abatement applies equally to cases in which a defendant . . . dies prior to the entry of judgment.”23

Abatement ab initio has a checkered history. Neither the Constitution nor any specific federal or state statute mandates abatement ab initio in criminal cases; rather, it is a judicially crafted doctrine.24 Since then, almost every federal circuit religiously applies the rule whenever a defendant dies before his direct appeal rights are exhausted.25

Two rationales have been advanced in support of abatement ab initio. The first is the finality rationale.26 Appreciating that a conviction is not final until the appeal process is over, the finality rationale states that the government should not stain a person with guilt until he has exhausted his appeal rights.27 The finality principle is closely intertwined with the constitutional presumption of innocence afforded to every criminal defendant, which remains intact until the person is proven guilty beyond reasonable doubt at the completion of the criminal process.28 The second rationale for abatement ab initio is the punishment principle.29 That principle recognizes the limits of penal measures – that the government cannot punish a dead person.30 The rule (that recognizes the limited utility of punishment when the wrongdoer dies) also applies in the civil context in the majority of jurisdictions, especially when punitive damages against the deceased are at issue.31

There is a federal circuit split on abatement ab initio’s effect on criminal monetary sanctions. On the one hand, federal courts all agree that when a conviction results in a criminal fine, but the fine order remains unpaid at the time of death, the obligation to pay is extinguished.32 But if a conviction results in a restitution order, the federal appellate courts take varying approaches. The 4th Circuit, for example, holds that a restitution order does not abate when a defendant dies before his appeal rights are exhausted, meaning that the defendant’s estate has to pay the amount after his death.33In that court’s view, restitution orders, which the common law does not consider to be punishment, are akin to compensation to the victims of crimes.34 Just like in the civil context, the right to collect compensation against a defendant does extinguish upon death; rather, the obligation continues against the deceased’s estate.35 Other courts, like the 5th and 11th circuits for example, hold that death abates unpaid restitution orders.36 The federal appellate courts, however, are in accord in their approach to criminal fines and restitution orders that have already been paid – the general rule is that once paid, criminal monetary sanctions are not abated.37 In other words, the money is nonrefundable.38

State courts are equally animated in their response to a criminal defendant’s death before direct appellate review. One line of cases holds that death abates the conviction, but fines and restitution orders already paid are left intact.39 Another line of cases dismisses the appeal as moot, but says nothing about the underlying judgment and its incidents.40 In Oklahoma, the appeal abates with varying consequences: sometimes the trial court is directed to also abate the underlying proceedings, other times it is not, but in either scenario, there is no specific mention of restitution or fines already paid.41 Other states abate the appeal and all penal elements of the underlying judgment but leave in effect restitution orders and fines previously paid.42 Some states allow substitution of parties, and the appeal proceeds with the substituted party.43 Alabama dismisses the appeal but leaves the judgment intact with a notation on the record defendant died before a final decision.44

The Supreme Court’s decision in Nelson could have altered the nonrefundability rule on due process grounds. In Nelson, petitioner Nelson had been convicted of two felonies and three misdemeanors, after which the trial court ordered her to pay $8,192.50 in court costs, fees and restitution, as well as serve a 20-year prison sentence.45 In the other consolidated case, petitioner Madden was convicted of attempted sexual assault on a child; the trial court imposed a custodial sentence and an order to pay $4,413 in costs and restitution. Both petitioners’ convictions were set aside.46 In Nelson’s case, her conviction was reversed on appeal. After a retrial, she was acquitted of all charges.47 In Madden’s case, his convictions were reversed on appeal and in post-conviction proceedings.48 In both cases, however, the Colorado Department of Corrections withheld the money the petitioners paid in costs, fees and restitution.49

In subsequent court proceedings to recoup the money paid, Nelson’s entire request was denied, while Madden was refunded costs and fees, but the restitution amounts were denied.50 On appeal, the Colorado Court of Appeals permitted full refunds.51 The Colorado Supreme Court reversed, holding that Colorado’s Compensation for Certain Exonerated Persons Act52 was the sole pathway for petitioners to recoup their money paid, and since neither had utilized the statute, the court lacked jurisdiction to afford them relief.53 Additionally, despite that the Exoneration Act required petitioners to prove their actual innocence in a distinct proceeding, the court found no due process violation because the statute provided sufficient process by which petitioners could recoup their money.54

The U.S. Supreme Court reversed. The court held that the Colorado scheme violated the Due Process Clause.55 As the court explained, when a conviction has been reversed with no prospect for reprosecution, the presumption of innocence reattaches.56 At that point, the government’s right to retain the property (costs, fees and restitution) disappears.57 Indeed, as the court explained, the rule applies regardless of how the reversal came about because a “‘reversal is a reversal’ regardless of the reason.”58 The court also found that the Exoneration Act did not provide an adequate remedy for recoupment of money paid as a result of an overturned conviction.59 The court applied the oft-familiar Matthews v. Eldridge60 test.61 The court rejected Colorado’s argument that the restrictive criminal due process standards articulated in Medina v. California62 governed the inquiry in the present case.63 Adopting Chief Justice Robert’s dissent in Kiley v. United States,64 the court limited Medina to cases where there were questions about “the allocation of burden of proof and the type of evidence qualifying as admissible.”65 Additionally, Nelson, unlike Medina, concerned the government’s continued retention of property after legal basis for doing so – i.e., the underlying conviction – had been reversed or vacated with no possibility of a future reprosecution.66 As there were no issues in Nelson concerning the burdens of proof or standards for admission of evidence or prospective criminal processes, Medina was inapplicable; instead Mathews was the proper analysis.67 The Mathews test has three prongs: “[a] the private interest affected; [b] the risk of erroneous deprivation of that interest through the procedures used; and [c] the governmental interest at stake.”68

Nelson had a confluence of all three Mathews factors, tilting the scales in favor of a due process violation. First, the court found that petitioners had an undeniable interest in the money they paid to the government because of their convictions.69 Once their convictions had been overturned, however, the presumption of innocence reattached and the petitioners’ rights to possession of their property was restored.70 Second, as a result of the overturned convictions, there now existed a high risk of erroneous deprivation of the criminal defendants’ property if the government attempted to retain money exacted on the basis of an overturned conviction.71 When a conviction is overturned, as the court explained, the government loses it right to retain money paid based on that overturned conviction.72 Any post-deprivation remedy that 1) fails to pay back in full the money exacted or 2) imposes onerous obstacles – like requiring defendants prove their actual innocence – before money is paid back falls far short.73 Third, given that the government’s sole basis for retaining petitioners’ money was eviscerated, it had no countervailing interest to rebut a defendant’s request.74 The government could not impose more than minimal procedures to secure refunds of money taken based on overturned convictions.”75

As other commentators have noted, Nelson represents a high mark in constitutional remedies. Ordinarily, the U.S. Constitution only expressly spells out two remedies: just compensation for the taking of property and the ancient writ of habeas corpus for liberty violations.76 Nelson departed from this expressly delineated constitutional blue print when it ordered restitution, not compensation, for an unlawful governmental property deprivation.77

Nelson’s principles are applicable to abatement ab initio cases. Just like in Nelson, abatement ab initio cases with already-paid criminal fines and restitution orders concern the government’s continued retention of property after legal basis for doing so – i.e., the underlying conviction – has been vacated with no possibility of a future reprosecution.78 With the vacation of the conviction or abatement of criminal proceedings, “no further criminal process is implicated,” so Mathews, not Medina, “provides the relevant inquiry.”79

We address first Nelson’s threshold requirement – that a private interest is affected by governmental action.80 For the petitioners in Nelson, just like the criminal defendants who claim recourse to abatement ab initio, the government’s right to retain money exacted against them as part of a criminal sentence (court costs, fines, penalties and restitution) rests solely on the underlying convictions.81 For the petitioners in Nelson, when the underlying conviction was reversed with no prospect for reprosecution, the presumption of innocence reattached.82 As a result, the government’s sole basis for retaining the property (costs, fees, penalties and restitution) disappeared.83 Likewise, for the convicted criminal defendant who dies before his appeal rights are exhausted, abatement ab initio has the same effect – the government’s sole basis for retaining the money exacted – the underlying criminal conviction – disappears.84 At that point, the deceased defendant, like the petitioners in Nelson who had their convictions overturned, all enjoy the presumption of innocence.85 Even though the reversals in Nelson were a result of an acquittal and trial error, as opposed to the operation of law (as is with abatement ab initio), that distinction is inconsequential; the U. S. Supreme Court made clear that a “‘reversal is a reversal’ regardless of the reason.”86 The fact that the money exacted is deemed compensation, as opposed to merely criminal sanctions, makes no difference. To be sure, even if the compensation rationale is accepted, the sole basis for the compensation order – defendant’s criminal conviction – was eviscerated by his death.87

The second Nelson factor – risk of erroneous deprivation – is also satisfied in abatement ab initiocases. As noted, abatement ab initio sets aside a defendant’s criminal conviction.88 The defendant’s conviction was the sole basis for the government’s retention of his property, but once it is set aside, the right to retain eviscerates.89 Under those circumstances, the government’s countervailing interest in retaining the property is minimal.90 If the government’s end goal in retaining a dead defendant’s property is punishment, as other courts have reasoned,91 that rationale is questionable at best. When a defendant dies, a number of courts have recognized, the utility of punishment is lost because it is not possible to meaningfully punish a dead person.92 If, on the other hand, the government relies on the antecedent trial conviction as a basis for its countervailing interest of retaining the deceased defendant’s property, that position is fraught with problems.93 The finality rationale is the first obstacle to clear. In the specific context of abatement ab initio, that principle provides that the criminal justice system only yields a “final judgment” after the appellate process is exhausted.94 Acknowledging the fallibility of the human experience generally, and the trial process, Judge Gorsuch, writing for the 10th Circuit, has explained that an untested conviction is “both unreliable and illegitimate.”95 As mature and developed as the American criminal justice system is, it has failed to “convincingly” eradicate wrongful convictions.96So, to be sure, we “double- and sometimes triple-check the result[ing] [conviction] through our layered appellate system.”97 Only then, is finality accorded to the results of the criminal process.98Thus, when a criminal defendant dies before his direct appellate rights are exhausted, his conviction and all its incidents are unreliable, illegitimate and cannot in fairness serve as a basis for a permanent penal property deprivation order.99

The third factor in the Nelson analysis – government interest at stake – could be satisfied (but this warrants a more detailed examination). In Nelson, the analysis was simple: the court concluded that in the wake of the defendants’ convictions being reversed, the state had “zero claim” to the property seized based on those eviscerated criminal judgments.100 Indeed, against this background, the government could not lawfully impose stringent retrieval procedures.101 Against this holding in Nelson, the argument could likewise be made that with the underlying criminal conviction abated, the government’s interest in the defendant’s property (be it previously paid fines, costs or restitution orders), which rested on the eviscerated conviction, should be zero or none.102Of course, the government could oppose restitution on the ground that the reversal was due to a legal technicality not actual innocence, but that would be a difficult position to maintain in light of Nelson. First, one of the defendants in Nelson, his conviction was vacated based on a technicality on appeal.103 Second, in view of that fact, the court made it clear that relief was warranted because a “‘reversal is a reversal’ regardless of the reason.”104

That does not mean, however, that the criminal defendant’s estate would automatically be unjustly enriched. As previously noted, whether this actually happens depends on whether the case is in state or federal court. Thus far, it is clear that the majority of federal courts apply complete abatement ab initio in toto, such that Nelson might actually compel a return of fines or restitution paid.105 Even then, the government and all those civil plaintiffs injured by the deceased’s injuries can still pursue civil claims through the Fraud Claims Act, common law and various other equitable remedies to prevent the estate from being unjustly enriched.106

State court, however, presents a different scenario. Oklahoma has not clearly determined whether abatement ab initio abates a criminal conviction and its incidents in toto.107 It has, however, provided certain guideposts: thus, it is settled that a “personal representative of the deceased is not responsible for the alleged violation of the law by the defendant during his lifetime, and cannot be required to satisfy the judgment rendered against him.”108 Unless this rule is revoked, as a fortiori, uncollected fines would appear to be precluded because that would necessarily require enforcing a judgment against the deceased’s estate based on his criminal wrongdoing.109 Collected fines present a different challenge; so far, research has failed to yield controlling precedent on these issues. Nonetheless, Oklahoma’s abatement principles appear to rest on the acknowledged futility of punishing a dead person.110 Against that backdrop, a fine that is collected as part of a penal measure against a dead person must yield, unless there be a mechanism by which the soundness of the underlying conviction be tested by an appellate court.111 As Judge Gorsuch (as he was then) wrote for the 10th Circuit, an untested conviction is “both unreliable and illegitimate.”112

For as long as Oklahoma applies abatement ab initio, restitution orders should abate upon the defendant’s death. The Legislature has vested Oklahoma courts with discretion to award restitution to victims of crimes following a guilty verdict.113 Under Oklahoma law, restitution is not punishment, but “compensation” awarded to victims of crime.114 Given that Oklahoma’s abatement principles rest on the acknowledged futility of punishing a dead person,115 it logically follows that restitution – which is not a form of punishment – should not be abated.116 Nelson, however, makes this position untenable: due process mandates that when the underlying conviction is set aside, monetary exactions (fines, restitution orders and penalties) cannot stand.117 Additionally, Oklahoma’s criminal restitution statute is contingent on a conviction.118 With the defendant’s conviction abated, a restitution order cannot be made.119

An interesting question would arise if an administrator of a defendant’s estate wanted to recoup restitution already paid. At that point, the claim would probably be that with the defendant’s conviction abated, it is no longer certain that the underlying conviction is safe or correct and as consequence, the restitution order should not stand.120 When a defendant is alive, the propriety of a criminal sentence that includes restitution is a criminal matter,121 but when the defendant dies, the answer is not so clear. The penal aspect of the judgment goes away, supra, but what of the remedial/restitutionary aspect of the judgment? The Supreme Court of Idaho, for example, considers these latter issues as falling within the civil domain; in fact, the court has intimated (without definitely deciding) that the civil substitution provisions would allow the administrator of the defendant’s estate to continue the appeal to test the propriety of the underlying conviction, and as fortiori, the restitution orders.122 Oklahoma has no criminal rule that permits substitution of parties; the substitution rules seem to only apply to civil cases.123 Oklahoma, unlike Idaho, has separate criminal and civil appellate systems, so it is unclear how this would be handled under Oklahoma law because the demarcation between criminal and civil matters is not always clear.124 Those concerns aside, it is likely that the Oklahoma Court of Criminal Appeals would have jurisdiction because the restitution order is an incident of a criminal sentence.125 As previously noted, the rule of abatement is judge-created; if presented with a challenge to the propriety of the restitution order and as a consequence, the underlying conviction, instead of abating the appeal, the Oklahoma Court of Criminal Appeals, like other courts, should proceed to determine the merits of the appeal, and consequently, the propriety of the restitution order.126

A criminal defendant’s death before disposition of a direct appeal can present complex issues of law and policy. On the one hand, abatement ab initio precludes the stain of a criminal conviction from resting eternally on a deceased defendant when its correctness has not been tested on appeal. However, victims of the defendant’s criminal acts also need to be considered: They bear the physical, financial, emotional and psychological scars of the consequences of crime.127

Mbilike M. Mwafulirwa is an attorney at Brewster & DeAngelis PLLC. Mr. Mwafulirwa’s practice focuses on general litigation, civil rights defense and appellate law. He is a 2012 graduate of the TU College of Law.

1. See, e.g., John R. Ellement, et al., The Boston Globe, “In Wake of Suicide, Aaron Hernandez Conviction Could be Voided,”bostonglobe.com/metro/2017/04/19/hernandezdismiss/BvCcJQ1Ubg3mJAe0ttpvJ/story.html (last accessed Dec. 27, 2017).
2. See United States v. Logal, 106 F.3d 1547, 1551-1552 (11th Cir. 1997) (“[I]t is as if the defendant had never been indicted and convicted.”).
3. United States v. Estate of Parsons, 367 F.3d 409, 417 (5th Cir. 2004) (en banc); accord Logal, 106 F.3d at 1552. But see United States v. Dudley, 739 F.2d 175, 178 (4th Cir. 1984) (death does not abate restitution orders).
4. See, e.g., United States v. Zizzo, 120 F.3d 1338, 1343 (7th Cir. 1997).
5. 137 S.Ct. 1249 (2017).
6. Id. at 1252.
7. Biography.com, “Aaron Hernandez,” biography.com/people/aaron-hernandez-21269741(last accessed Dec. 27, 2017).
8. See text accompanying footnote 7.
9. Id.
10. Id.
11. Biography.com, “Aaron Hernandez,” supra, text accompanying footnote 7.
12. Commonwealth v. Hernandez, No. 2013-CR-00983, 2017 WL 2115360, at *1 (Mass. Sup. Ct. Dep’t, May 9, 2017).
13. Id.
14. Id.
15. Id.
16. Id.
17. See Mot’n and Memo. In Opp. to Def’s Mot’n to Abate Pros., Commonwealth v. Hernandez, No. 2013-CR-00983, 2017 WL 1543524, at **1-2 (Mass. Sup. Ct. Dep’t May 1, 2017).
18. Hernandez, 2017 WL 2115360, at * 2.
19. Id.
20. Id.
21. United States v. Davis, 953 F.2d 1482, 1486 (10th Cir. 1992) (quoting Durham v. United States, 401 U.S. 481, 483 (1971) (per curiam), overruled on other grounds, Dove v. United States, 423 U.S. 325, 325 (1976) (per curiam)). Dove overruled Durham with regard to discretionary appeals – abatement ab initio does not apply. 423 U.S. at 325.
22. In re Estate of Parsons, 367 F.3d at 413.
23. United States v. Asset, 990 F.2d 208, 211 (5th Cir. 1993), abrogated on other grounds, Parsons, 367 F.3d at 409.
24. See, e.g., List v. Pennsylvania, 131 U.S. 396, 396 (1888) (The U.S. Supreme Court simply declared that since “it appear[ed] that this is a criminal case . . .” and defendant had died, case was abated and the direct appeal was dismissed).
25. Durham, 401 U.S. at 483 (“The unanimity of the lower federal courts . . . [on abatement ab initio] . . . is impressive. We believe they have adopted the correct rule.”) (emphasis added).
26. See In re Estate of Parsons, 367 F.3d at 413.
27. Id. at 413-414; see also Griffin v. Illinois, 351 U.S. 12, 18 (1956) (a post-conviction direct appeal “is an ‘integral part of [our] system for finally adjudicating [the] guilt or innocence [of a defendant]”) (emphasis added); but see McCoy v. Ct. of App. of Wisc., 486 U.S. 429, 436 (1988) (“After a judgment of conviction has been entered, however, the defendant no longer protected by the presumption of innocence.”).
28. See Johnson v. Mississippi, 486 U. S. 578, 585 (1988).
29. In re Estate of Parsons, 367 F.3d at 414.
30. Id.United States v. Dudley, 739 F.2d 175, 177 (4th Cir. 1984).
31. Morriss v. Barton, 1947 OK 260, ¶58, 190 P.2d 451, 459 (“where the defendant in a tort action dies after commencement of the action and before trial, his executors or administrators may not be held liable for exemplary damages.”).
32. In re Estate of Parsons, 367 F.3d at 415; United States v. Christopher, 273 F.3d 294, 299 (3d Cir. 2001); United States v. Volpendesto, 755 F.3d 448, 454 (7th Cir. 2014); Logal, 106 F.3d at 1552.
33. See Dudley, 739 F.2d at 178.
34. Id.accord Christopher, 273 F.3d at 299.
35. See Okla. Stat. tit. 12 §1052.
36. In re Estate of Parsons, 367 F.3d at 415; Logal, 106 F.3d at 1552.
37. In re Estate of Parsons, 367 F.3d at 413 & n. 6; United States v. Zizzo, 120 F.3d 1338, 1347 (7th Cir. 1997).
38. See, e.g., Zizzo, 120 F.3d at 1343; Estate of Parsons, 367 F.3d at 417.
39. Surland v. State, 895 A.2d 1034, 1035 (Md. 2006).
40. Id.
41. See Hardcastle v. State, 1939 OK CR 105, 93 P.2d 547, 548; Wilson v. State, 1947 OK CR 98, 184 P.2d 634, 634.
42. Surland, 895 A.2d at1035.
43. Id.
44. Id.; Wheat v. State, 907 So.2d 461, 464 (Ala. 2005) (citing Rule 43(a), Ala. R. App. P.).
45. Nelson, 137 S.Ct. at 1252-1253.
46. Id. at 1253.
47. Id.
48. Id.
49. Id.
50. Nelson, 137 S.Ct. at 1253.
51. Id.
52. Colo. Rev. Stat. §§13–65–101, et seq.
53. Id. at 1254.
54. Id.
55. Id.
56. Nelson, 137 S.Ct. at 1255.
57. Id.
58. Id. at 1256 n. 10 (emphasis added)(citations omitted).
59. Id. at 1255-1256.
60. 424 U.S. 319 (1976).
61. Nelson, 137 S.Ct. at 1255.
62. 505 U.S. 437 (1992).
63. Nelson, 137 S.Ct. at 1255.
64. 134 S.Ct. 1090, 1110 n. 4 (Roberts, C.J., dissenting).
65. Nelson, 137 S.Ct. at 1255.
66. Id.
67. Id.
68. Id. (citations omitted).
69. Id. at 1255-1256.
70. Id. at 1256.
71. Id. at 1255-1256.
72. Nelson, 137 S.Ct. at 1257.
73. Id.
74. Id. at 1257-1258.
75. Id. at 1258.
76. Note, Fourteenth Amendment – Due Process – Nelson v. Colorado, 131 Harv. L. Rev. 283, 291(Nov. 10, 2017) (quoting U.S. Const. art. 1, §9 (the Suspension Clause providing for the writ of habeas corpus) and U.S. Const. amend. V (Takings Clause providing for just compensation for governmental taking of property)).
77. See Nelson, 137 S.Ct. at 1255-1258.
78. See, e.g., Zizzo, 120 F.3d at 1343; In re Estate of Parsons, 367 F.3d at 417.
79. Nelson, 137 S.Ct. at 1255.
80. Id. at 1255 (quoting Kaley, 134 S.Ct. at 1110 n. 4).
81. Id. at 1255-1256; In re Estate of Parsons, 367 F.3d at 413 & n. 6; Zizzo, 120 F.3d at 1347.
82. Nelson, 137 S.Ct. at 1255-1256.
83. Id.
84. Logal, 106 F.3d at 1551-1552.
85. Johnson, 486 U. S. at 585.
86. Nelson at 1256 n. 10 (emphasis added)(citations omitted).
87. See Logal, 106 F.3d at 1551-1552.
88. Id.
89. See Nelson at 1255-1256.
90. Cf. id.
91. See, e.g., Asset, 990 F.2d at 211.
92. In re Estate of Parsons, 367 F.3d at 414; Dudley, 739 F.2d at 177.
93. See, e.g., McCoy, 486 U.S. at 436 (“After a judgment of conviction has been entered, however, the defendant no longer protected by the presumption of innocence.”).
94. Prost v. Anderson, 636 F.3d 578, 582(10th Cir. 2011) (Gorsuch, J.).
95. Rosanna Cavallaro, Better Off Dead: Abatement, Innocence, and the Evolving Right of Appeal, 73 U. Colo. L. Rev. 943, 954 (2002); Prost, 636 F.3d at 582.
96. Prost, 636 F.3d at 582.
97. Id.
98. Id.
99. See generally id.
100. Nelson, 137 S.Ct. at 1258.
101. Id. at 1257-1258.
102. Cf. id.see also In re Estate of Parsons, 367 F.3d at 414.
103. Nelson, 137 S.Ct. at 1253.
104. Id. at 1256 n.10 (emphasis added); United States v. Libous, 858 F.3d 64, 66-69 (2d Cir. 2017) (applying Nelson in abatement ab initio case and rejecting that paid fine equals time served).
105. Supra text accompanying note 35-36.
106. See, e.g., Restatement (Second) of Torts §926 cmt. a; Restatement (Third) of Restitution and Unjust Enrichment §1 (2011); The False Claims Act, 31 U.S.C. §3729 et seq.
107. If Oklahoma’s position is an abatement ab initio in toto, then like the federal courts, Nelson might compel repayment of fines and restitution orders, supra. But if Oklahoma adheres to some modified (or limited form of abatement), then the result might be different, as explained herein.
108. Boyd v. State, 1910 OK CR 87, 108 P.431, 431.
109. Id.
110. Boyd, 1910 OK CR 87, 108 P. at 431; Hardcastle, 1939 OK CR 105, 93 P.2d at 548.
111. Cf. Hughey v. United States, 495 U.S. 411, 418 (1990) (“restitution [has] to be tied to the loss caused by the offense of conviction.”) (emphasis); cf. Blackwell v. State, 113 N.E. 723, 723 (Ind.1910); accord In re Stauch’s Estate, 301 A.2d 615, 616-617 (Pa. 1973).
112. Prost, 636 F.3d at 582 (citations omitted).
113. See Okla. Stat. tit. 22 §991a(A)(1)(a).
114. Okla. Stat. tit. 22 §991f(A)(1).
115. Hardcastle, 1939 OK CR 105, 93 P.2d at 548 (futility of punishing dead person).
116. See, e.g., State v. Devin, 142 P.3d 599, 605-606 (Wash. 2006) (refusing to abate restitution orders); In re Estate of Vigliotto, 870 P.2d 1163, 1165-1166 (Ariz. Ct. App. 1993).
117. Nelson, 137 S.Ct. at 1255-1256.
118. See Okla. Stat. tit. 22 §§991a(A)(1)(a), §991f(A)(1).
119. United States v. Brooks, 872 F.3d 78, 89-90 (2d Cir. 2017).
120. Cf. Baltimore & Ohio R. Co. v. United States, 279 U.S. 781, 786 (1929) (“The right to recover what one has lost by the enforcement of a judgment subsequently reversed is well established.”).
121. See Smith v. Okla. Dep’t of Correct., 2001 OK 95, ¶6, 37 P.3d 872, 873.
122. See State v. Korsen, 111 P.3d 130, 132-133 (Idaho 2005).
123. See Okla. Stat. tit. 12 §§1051-1054; Pitts v. State, 2003 OK CR 21, ¶6, 78 P.3d 551, 553 (unless statutorily authorized, civil procedure provisions are generally inapplicable in criminal cases).
124. Parsons v. Dist. Ct. of Pushmataha Cnty., 2017 OK 97, ¶١٧, ٤٠٨ P.٣d ٥٨٦, ٥٩٤ (“Generally speaking, the demarcation line between civil and criminal subject matter is well defined and obvious, but that is not always the case.”) (emphasis added).
125. See In the Matter of M.B., 2006 OK 63, ¶14, 145 P.3d 1040, 1047.
126. See, e.g., United States v. Christopher, 273 F.3d 294, 299 (3rd Cir. 2001) (declining to abate restitution order and inviting litigating parties to brief the merits of the restitution order); Commonwealth v. Walker, 288 A.2d 741, 742* (Pa.1972) (Court proceeded with appeal despite death of defendant).
127. Devin, 142 P.3d at 605-606.

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 40 (April 2018)