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February 10, 2008

Is there no pressing non-sentencing business in South Dakota?

This local AP story has me wondering if the South Dakota legislature has solved all of the state's other pressing problems:

South Dakota House is scheduled to consider a measure Monday to eliminate an archaic judicial doctrine that wipes away criminal convictions if defendants die before they are sentenced. 

Representative Rich Engels of Hartford says many states already have abandoned the nearly century-old doctrine.  HB1271, offered by Engels, would add South Dakota to the list.  He says the doctrine developed in common law out of the view that a criminal conviction is not complete until an appeal has been completed or the time to appeal has passed. Engels says approval of HB1271 would allow crime victims to continue their quest for restitution.  Under the existing doctrine, restitution cannot be obtained if a criminal conviction is erased when someone dies before they are sentenced.

I understand the concern for victim restitution, but wouldn't a reform of tort law, rather than a a reform a sentencing law be a more appropriate way to address this concern?

February 10, 2008 at 12:59 PM | Permalink


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Clearly a pressing financial interest for someone. This would also make it possible for the government to seize assets.

Posted by: beth curtis | Feb 10, 2008 2:15:07 PM

"an archaic judicial doctrine"???

You mean like res judicata, or stare decisis?

This guy is an idiot, and probably crooked. It's easy to see that Representative Rich Engels of Hartford has sold his soul to someone, and is now pressing this legislation in exchange for his fee, whatever that would be.

Posted by: babalu | Feb 10, 2008 5:32:22 PM

I agree. Not an uncommon process.

Posted by: beth curtis | Feb 10, 2008 5:43:08 PM

This doctrine was what scuttled the restitution against Ken Lay. See United States v. Lay, 456 F. Supp. 2d 869 (S.D. Tex. 2006). I have no position on the merits, but the substantive effects are real.

If your problem is that restitution should be recovered in tort, than your problem is with ancillary criminal restitution in general.

Posted by: Mr.m | Feb 10, 2008 11:55:29 PM

I was in trial in federal court in St. Louis in 1999. The judge (who will remain unnamed) and his clerk were chuckling and bubbling that they were going to have a sentencing at One pm that afternoon. They had moved the sentencing up because the guy was terminally ill and about to die. Sure enough at One pm our trial is interrupted and the jury has a longer than normal lunch. In comes the grieving family of the defendant and a little later the defendant is brought into court in chains. When asked if he had anything to say, he stated that he would do as much of the time the court sentenced him to as he could. The judge hammered him with a lot of time. Then at the defense lawyer's request, the judge refused to give him a moment with his wife.

I suppose that some restitution or other purpose was served here. Perhaps the purpose was to fulfill some data collection goal of the US attorneys office or so the judge could say that all of his cases in 1999 were completed on time.

Posted by: M.P.B. | Feb 11, 2008 10:22:07 AM

The restitution justification makes no sense at all (and truthfully restitution as a whole makes little sense, although I suppose one could argue that it promotes judicial efficiency, but the process itself seems rather inefficient). If a criminal defendant has the ability to pay restitution, they have the ability to pay a tort judgment. If the criminal defendant doesn't have the means to pay restitution, then restitution is meaningless and mainly serves to assure that poor people will constantly be incarcerated for probation violations for being unable to pay restitution. I think that tort judgments are actually way more beneficial for victims than restitution because of the ability to recover punitive damages and damages beyond financial compensation.

I wonder how many people/politicans who are pushing restitution for victims of crimes are also pushing so-called "tort reform" preventing people from recovering full damages and limiting punitive damages in tort lawsuits. I wonder how many of those same politicans claim that criminals must pay victims restitution because it deters crime. Amazing how many politicians think that deterrence only applies to the poor and powerless. A strong tort system would much better protect victims of criminal acts while also protecting people from negligent, but non-criminal, acts from the rich and powerful.

Posted by: Zack | Feb 11, 2008 10:36:58 AM

I assume the defendants' standing to appeal their convictions will survive to their next of kin. Otherwise it would be horribly unfair, the judgment of conviction remains without an appeal being permitted to take place (that's the purpose of the rule, which was discussed in detail when Ken Lay died).

Posted by: bruce | Feb 12, 2008 6:39:02 PM

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