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'Abatement Means What it Says' : The Quiet Recasting of Abatement

40 Pages Posted: 21 Feb 2012  

Alexander F. Mindlin

NYU School of Law

Date Written: 12 6, 2011

Abstract

This paper argues that the modern practice of abatement ab initio, in which courts erase the conviction of one who dies pending a first appeal, lacks the firm historical basis that is often claimed for it by those who see in it an ancient recognition of the right to one appeal. Examining early cases of abatement, the author finds that they lacked any connection to the protection of a supposed appellate right, and simply reflected the brute fact that a dead person cannot be punished. Accordingly, traditional abatement neither exonerated the defendant, nor closed off avenues of restitution for the victims.

Keywords: abatement, abatement ab initio

JEL Classification: K14

Suggested Citation

Mindlin, Alexander F., 'Abatement Means What it Says' : The Quiet Recasting of Abatement (12 6, 2011). NYU Annual Survey of American Law, Vol. 67, p. 195. Available at SSRN: https://ssrn.com/abstract=2009013

Alexander F. Mindlin (Contact Author)

NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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