Introduction
The doctrine of abatement ab initio (hereinafter “the doctrine” or “abatement doctrine”) erases a defendant’s conviction if the if the defendant dies while an appeal is pending.1United States v. Pauline, 625 F.2d 684, 684 (5th Cir. 1980). Most federal courts, as well as several states, have adhered to this doctrine for decades.2See Commonwealth v. Hernandez, 118 N.E.3d 107, 113 (Mass. 2019); Tim A. Thomas, Annotation, Abatement of State Criminal Case by Accused’s Death Pending Appeal of Conviction— Modern Cases, 80 A.L.R.4th 189, § 3 (Westlaw through Oct. 25, 2021). Over time, some states have modified the doctrine, and others have abolished it entirely.3Thomas, supra note 2, § 1. The doctrine was recently called into question in Massachusetts when former football star Aaron Hernandez died in prison after his murder conviction but before the appeal of his conviction could be heard by the court.
This Comment will argue that the Massachusetts Supreme Judicial Court (hereinafter “SJC”) engaged in improper judicial activism when it abolished the abatement doctrine in Commonwealth v. Hernandez. The Court should have put more consideration into adopting the Commonwealth’s substitution approach, which allows a third party to voluntarily stand in for the deceased defendant to carry out the appeal. The Court erred by not abiding by either one of the parties’ requests—Hernandez wanted the doctrine to stand while the Commonwealth sought modification of the doctrine so that a substitute for the defendant could complete the appeal.
Part I of this Comment details the history of the abatement doctrine. Part II lays out the facts of the Hernandez case and the Court’s decision. Part III details why the Court went awry in deciding to abolish the abatement doctrine, and Part IV offers a potential modification to the doctrine that the Court should have considered more seriously.
I. Background
A. History of the Abatement Doctrine in the United States
The common law abatement doctrine provides that a criminal conviction is vacated and the indictment dismissed if the defendant dies while the appeal of that conviction is pending.4 Pauline, 625 F.2d at 684. In essence, the case is extinguished as if the defendant was never indicted or convicted.5 United States v. Libous, 858 F.3d 64, 66 (2d Cir. 2017). The doctrine’s origin is unclear, but the doctrine is well-established and followed to varying degrees by many state and federal courts.6Hernandez, 118 N.E.3d at 112–15.
The U.S. Supreme Court upheld the doctrine in 1971 and narrowed it in 1974 to apply only when a convicted defendant dies pending a direct appeal as of right, not when there is a petition for certiorari.7See id. at 112–13 (citing Durham v. United States, 401 U.S. 481, 483 (1971); Dove v. United States, 423 U.S. 325 (1976)). All except one of the U.S. Courts of Appeals applies the doctrine.8Id. (indicating the one Court of Appeals that has not applied the doctrine has never taken a case on this issue). Eighteen states and the District of Columbia apply the doctrine; some states have narrowed or modified the doctrine, and other states have abolished the doctrine altogether.9Id. at 114.
Less than a month before Massachusetts abolished the doctrine, the Missouri Court of Appeals reaffirmed its application of the doctrine when it abated Daniel Mott’s conviction for possession of a controlled substance after Mott died while serving his twelve-year sentence and before the Court of Appeals could issue a mandate on his appeal.10State v. Mott, 569 S.W.3d 555, 556 (Mo. Ct. App. 2019). Payton v. State, 266 So. 3d 630, 631–33 (Miss. 2019). Mere days after Massachusetts abolished the doctrine, the Supreme Court of Mississippi narrowed the doctrine when ruling on a case where the defendant died in prison awaiting appeal for his convictions of kidnapping and raping a female college student.11Payton v. State, 266 So. 3d 630, 631–33 (Miss. 2019). The Court stated that the policies underlying stare decisis would not be served by continuing to apply the doctrine and cited the increased recognition of victim’s rights as another reason for its departure from precedent.12 Id. at 641–42. The Mississippi Rules of Appellate Procedure allow for substitution of the deceased party; however, in this case, the deceased defendant’s appellate counsel did not move for substitution.13See id. at 642. Most recently, the Supreme Court of Tennessee abolished the abatement doctrine when ruling on a case where the defendant was convicted of reckless homicide, sentenced to three years in prison, and then died while his appeal was pending.14State of Tennessee v. Al Mutory, 581 S.W.3d 741, 743–44 (2019). The Court reasoned that the doctrine was obsolete and contrary to public policy.15 Id. at 750.
Several states have adopted a rule that allows for substitution, whereby a representative of the deceased defendant takes the place of the defendant and continues the appeals process.16Thomas, supra note 2, § 2. Hawaii gives the appellate court the most discretion in determining how to proceed on an appeal if the convicted defendant dies.17See State v. Weldon, 445 P.3d 103, 112 (Haw. 2019). The Hawaii Rules of Appellate Procedure give the appellate court discretion to allow substitution.18See Hᴀᴡ. R. Aᴘᴘ. P. 43(a). However, absent a motion for substitution, the court is empowered to dismiss the appeal as moot, abate the conviction and all proceedings, or enter any other order as the court deems appropriate.19See Hᴀᴡ. R. Aᴘᴘ. P. 43(a); Weldon, 445 P.3d at 112.
B. History of the Abatement Doctrine in Massachusetts
In Massachusetts, the first reported SJC case recognizing the abatement doctrine was in 1975.20Commonwealth v. Hernandez, 118 N.E.3d 107, 111 (Mass. 2019). It appears the doctrine was adopted because it was the favored approach in other jurisdictions.21See id. The SJC applied the doctrine to a direct appeal of right in only two other reported cases, both of which resulted in very short opinions that shed little light on the rationale behind the Court’s opinion.22 Id. (discussing Commonwealth v. Harris, 379 Mass. 917 (1980) and Commonwealth v. Latour, 397 Mass. 1007 (1986)).
While there are scant reported cases of the doctrine’s application in Massachusetts, there are a few well-known instances where lower courts applied the doctrine.23See Theo Emery, Court Voids Conviction of Defrocked Priest, SOUTH COAST TODAY (Sept. 27, 2003, 12:01 AM), https://perma.cc/SP55-BSFQ; see also Brendan McCarthy, Victims Challenge Voiding Geoghan Record, BOS. GLOBE (Aug. 28, 2003), https://perma.cc/XGY5-4EFT. In 1996, John Salvi III was convicted of terrorist attacks on two abortion clinics in Massachusetts, where he killed two people and wounded several others.24Patrick Johnson, After Aaron Hernandez Suicide, Murder Conviction in Odin Lloyd Death Legally Considered ‘As If It Never Occurred,’ MASS LIVE (Apr. 19, 2017, 4:53 PM), https://perma.cc/NS32-H7NS. During his appeal, Salvi committed suicide.25Id. The appellate court “instructed the trial court to vacate the conviction and dismiss the indictment . . . .”26Rosanna Cavallaro, Better Off Dead: Abatement, Innocence, and the Evolving Right of Appeal, 73 U. COLO. L. REV. 943, 943 (2002). Former state senator and attorney, William Keating, introduced legislation in 1997 to abolish the doctrine.27McCarthy, supra note 23. The legislation had the support of then-Governor William Weld and passed the Senate, but the bill did not make it out of the House.28McCarthy, supra note 23. In 2002, John Geoghan, a priest, was convicted of sexually abusing a child in the wake of the Catholic church child sex abuse scandal.29Emery, supra note 23. Geoghan, who was also accused of molesting almost 150 children, was later murdered in prison while serving his sentence.30Emery, supra note 23. The court applied the abatement doctrine, and Geoghan’s conviction was vacated.31Tim E. Staggs, Note, Legacy of a Scandal: How John Geoghan’s Death May Serve as an Impetus to Bring Abatement Ab Initio in Line with the Victims’ Rights Movement, 38 IND. L. REV. 507, 507– 08 (2005); Emery, supra note 23. Because Massachusetts courts continued to apply the abatement doctrine, the doctrine was the law in the state when Aaron Hernandez died in 2017.32See generally Commonwealth v. Hernandez, 118 N.E.3d 107 (Mass. 2019); Eric Levenson & Evan Simko-Bednarski, New Details on Aaron Hernandez’s Apparent Suicide in Prison, CNN, https://perma.cc/FR6A-9ERV (last updated May 5, 2017, 6:16 AM EDT).
II. The Court’s Opinion
A. Factual Background of Commonwealth v. Hernandez
On August 22, 2013, Aaron Hernandez (hereinafter “Hernandez”), a former professional football player for the New England Patriots, was indicted for the murder of Odin Lloyd, who was shot five times and left for dead in a secluded area near Hernandez’s house in July.33Tracy Connor, Aaron Hernandez Indicted for First-Degree Murder in Death of Odin Lloyd, NBC NEWS (Aug. 22, 2013, 5:17 PM EDT), https://perma.cc/4LXW-TF9G. Hernandez plead “not guilty.”34Id. In May 2014, Hernandez was charged with two counts of first- degree murder in the 2012 killing of two men in Boston and, again, plead “not guilty.”35Kevin Armstrong, Ex-Patriots TE Aaron Hernandez Pleads Not Guilty to All Charges in 2012 Murders That DA Says Were Sparked by a Spilled Drink, N.Y. DAILY NEWS (May 28, 2014, 5:26 PM), https://perma.cc/R8EC-Q8QZ; Ashley Fantz, Aaron Hernandez Charged in 2012 Double Homicide, CNN, https://perma.cc/RW7X-M9PV (last updated May 15, 2014, 7:02 PM EDT). Both legal proceedings were highly publicized and fraught with procedural issues, such as motions to suppress evidence and a motion for change of venue.36See, e.g., Commonwealth v. Hernandez, No. 128590, 2014 Mass. Super. LEXIS 153, at *1 (Nov. 10, 2014) (denying a motion for a change of venue); Commonwealth v. Hernandez, No. 128514, 2014 Mass. Super. LEXIS 149, at *1 (Oct. 10, 2014) (denying a motion to suppress evidence); Commonwealth v. Hernandez, No. 128513, 2014 Mass. Super. LEXIS 145, at *1 (Oct. 10, 2014) (allowing in part and denying in part a motion to suppress evidence); Commonwealth v. Hernandez, No. 128512, 2014 Mass. Super. LEXIS 146, at *1 (Oct. 10, 2014) (denying a separate motion to suppress); Commonwealth v. Hernandez, No. 128852, 2014 Mass. Super. LEXIS 186, at *1 (Oct. 2, 2014) (allowing a motion to suppress); Commonwealth v. Hernandez, No. 128510, 2014 Mass. Super. LEXIS 144, at *1 (Aug. 26, 2014) (allowing a motion to suppress); Commonwealth v. Hernandez, 31 Mass. L. Rptr. 445, 445 (Mass. Super. Ct. 2013). On April 15, 2015, Hernandez was convicted of first- degree murder in the death of Odin Lloyd, unlawful possession of a firearm, and unlawful possession of ammunition;37See Commonwealth v. Hernandez, 118 N.E.3d 107, 109 (Mass. 2019). he was sentenced to life in prison with no possibility for parole.38Susan Candiotti, Laura Dolan & Ray Sanchez, Aaron Hernandez Guilty of Murder in Death of Odin Lloyd, CNN, https://perma.cc/M7EU-JFV6 (last updated Apr. 16, 2015, 11:50 AM EDT). On April 15, 2017, Hernandez was found not guilty of two counts of murder for the 2012 killings.39Eric Levenson, Aaron Hernandez Found Not Guilty of Double Murder, CNN, https://perma.cc/RXM9-L2WD (last updated Apr. 19, 2017, 8:09 AM EDT), Hernandez died in prison, of an apparent suicide, two days later on April 19, 2017.40Levenson & Simko-Bednarski, supra note 32.
Before his death, Hernandez’s appeal was still being assembled and had not yet been docketed in the court.41See Hernandez, 118 N.E.3d. at 110. After his death, Hernandez’s appellate counsel filed a suggestion of death and motion to abate.42See id. In May 2017, the court vacated the convictions and dismissed the indictments based on the doctrine of abatement ab initio.43Id. The Commonwealth appealed, and the SJC granted the application for direct appellate review.44Id.
B. The SJC Abolished the Abatement Doctrine
In its analysis, the SJC first explored the doctrine in general, then considered past Massachusetts case law, federal case law, and other states’ case law.45See id. at 110–17. The Court next examined the two main reasons underlying the doctrine: the finality principle and the punishment principle.46Id. at 117. Finally, the SJC reviewed the substitution approach and the role of the legislature before concluding that the abatement doctrine should be abolished in Massachusetts. 47See Hernandez, 118 N.E.3d at 121–22.
The SJC stated that little is known about why the doctrine was initially used in Massachusetts and concluded that “the justification for adopting the doctrine was the simple fact that it was perceived to be the favored approach elsewhere.”48Id. at 117. The SJC called attention to the first reported Massachusetts appellate case acknowledging the doctrine, claiming the written opinion did not declare that the court was adopting the doctrine.49Id. at 111 (discussing Commonwealth v. Eisen, 368 Mass. 813 (1975)). Rather, the opinion stated that “[w]hen a criminal defendant dies pending his appeal, normally the judgment should be vacated and the indictment dismissed. This is the general practice elsewhere.”50 Id. (citing Eisen, 368 Mass. at 813–14).
The Court acknowledged that all except one U.S. Court of Appeals applies the doctrine.51Id. at 113 (indicating the one Court of Appeals that has not applied the doctrine has never taken a case on this issue). The Court also acknowledged that some states apply the traditional doctrine, some states have narrowed it, and other states have abolished it altogether.52See id. at 113–14. The Court concluded that the doctrine may no longer be the majority approach.53Hernandez, 118 N.E.3d at 116.
The SJC identified the first reason behind the doctrine to be the finality principle, which contends that a defendant should not only have the right to a trial, but should also have the right to appeal a conviction, because both are critical aspects of our criminal justice system.54Id. at 117. When a defendant appeals a conviction, the conviction hangs in limbo and cannot be seen as final until the appeal is resolved.55See id. at 117. Also, it may be unjust to use a contested conviction in a civil suit against the deceased’s estate if the deceased did not have the opportunity to see an appeal through.56 See id. at 119. The SJC reasoned, however, that while a Massachusetts statute does give a defendant the right to appeal, one can be deprived of that right, because there is no constitutional right to appeal.57Id. at 118. The Court cited other reasons why the finality principle lacks merit: the presumption of innocence is terminated after a defendant is convicted of a crime; “a trial court judgment is final for purposes of res judicata or issue preclusion”; and the punishment ordered takes place immediately (it is not suspended while an appeal is sought).58Id. at 118–19.
The second reason for the doctrine is the punishment principle, which asserts that one purpose of the justice system is to punish, and the system cannot realistically punish a dead person.59Hernandez, 118 N.E.3d at 119. The purpose is to punish the person who committed the crime, not the person’s heirs or beneficiaries.60Id. at 120. The SJC reasoned that “the [s]tate, as the representative of the community, continues to have an interest in maintaining a conviction” and that the justice system should account for the rights of victims.61Id. at 120. The SJC highlighted the enactment of the Massachusetts victims rights bill and the creation of the Domestic and Sexual Violence Prevention and Victim Assistance Fund, which both signal the importance of restitution.62Id.
Finally, the SJC rejected the substitution approach requested by the Commonwealth, whereby a third party steps into the shoes of the deceased defendant to carry out the appeal.63Id. at 121. The SJC stated that this approach poses practical issues and that the legislature is the appropriate body to adopt that approach.64Id. at 121–22. Unsatisfied with the lack of established precedent within Massachusetts and aware of dwindling support for the doctrine across the country, the SJC retroactively abolished the abatement doctrine and reversed the lower court’s order to abate Hernandez’s conviction.65Hernandez, 118 N.E.3d at 121. The SJC created a new common law rule in Massachusetts: if a convicted defendant dies pending appeal, the appeal is dismissed, and the trial court is instructed to place a note in the record that the defendant’s conviction removed the presumption of innocence but the conviction was neither affirmed nor reversed because the defendant died while an appeal was pending.66Id. at 124.
III. The SJC Incorrectly Abolished the Abatement Doctrine Against the Requests of Both Parties
A. Judicial Activism and the Soundness of the Abatement Doctrine
Common law consists primarily of written judicial decisions and is derived from centuries of published case law in the United States and England.67See J. Lyn Entrikin, The Death of Common Law, 42 HARV. J.L. & PUB. POL’Y 351, 362 (2019). Many courts of the highest authority in the United States have declared that they have the power to “modify, overrule, or change existing common law to conform to the changing conditions of society.”68Tory A. Weigand, Lost Chances, Felt Necessities, and the Tale of Two Cities, 43 SUFFOLK U. L. REV. 327, 330 (2010). Judicial activism is a term used to describe a broad set of court actions, including, but not limited to, using reasoning that is inconsistent with history or tradition, issuing an order that blatantly contradicts precedent, and inventing new rights and remedies.69 Corey Rayburn Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 Nw. U. L. REV. 1, 10 (2011). Judicial activism is also sometimes called “legislating from the bench.”70See Jane S. Schacter, Putting the Politics of “Judicial Activism” in Historical Perspective, 2017 SUP. CT. REV. 209, 217.
While the SJC has the self-proclaimed right to change common law, it engaged in improper judicial activism when it abolished the abatement doctrine, going against the wishes of both parties in Hernandez.71See Weigand, supra note 68, at 333. When judges stray from precedent, they place their judgment above that of prior courts.72 Yung, supra note 69, at 12. In seeking “to achieve certain policy results regardless of doctrine, they put their judgment about what is ‘right’ above what various other actors believe the law to be.”73Yung, supra note 69, at 12. Unelected judges steal the function of the legislative branch “when they [use] legal principles to effectuate their own preferred policy aims.”74Schacter, supra note 70, at 215.
In Hernandez, the SJC referred to its own recent reaffirmation in Shiel v. Rowell that its preferred course is to adhere to precedent.75Commonwealth v. Hernandez, 118 N.E.3d 107, 116 (Mass. 2019). Yet, the Court strayed from precedent, possibly because this was a high-profile case, one in which the public generally believed Hernandez was guilty, and the SJC did not want to reward Hernandez for committing suicide.76See, e.g., Lynn Johnston Splitek, Note, State v. McDonald: Death of a Criminal Defendant Pending Appeal in Wisconsin—the Appeal Survives, 1989 WIS. L. REV. 811, 831 (arguing the Wisconsin Supreme Court in State v. McDonald did not abate McDonald’s conviction after he killed himself because the Court was worried that abatement may appear to reward suicide); Brian Fraga, Judge Denies Defense Request to Move Aaron Hernandez Trial, THE PATRIOT LEDGER (Oct. 30, 2014, 3:24 PM), https://perma.cc/K53F-A83V. The New England Patriots and the NFL were withholding money that they owed Hernandez because of his involvement in the murder, which they might have been compelled to pay to his estate if his conviction was erased.77Des Bieler, ‘You’re Rich’: Aaron Hernandez Suicide Note Points to Effort to Provide for His Family, WASH. POST (May 5, 2017), https://perma.cc/QJ29-4Y9A.
Indeed, the crime Hernandez was convicted of is appalling, but the courts did not attempt to abolish the doctrine when Salvi or Geoghan’s convictions for equally, if not more, horrendous crimes were abated.78See supra Part I(B). While courts of last resort have declared their power and duty to change or overrule existing common law to conform to the changing conditions of society, it is difficult to see what changing condition of society prompted the Court to take action here.79See Weigand, supra note 68, at 330–32. The Court cites the victims’ rights movement as one reason for abolishing the doctrine, but that movement began decades ago, and the federal government and several states still have not modified or abolished the doctrine in response to the movement.80See Hernandez, 118 N.E.3d 107 at 120; Alexander F. Mindlin, Note, “Abatement Means What It Says”: The Quiet Recasting of Abatement, 67 N.Y.U. ANN. SURV. AM. L. 195, 197 (2011).
Furthermore, the victims’ rights movement may not be the appropriate concept to justify abolishing the doctrine because “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”81See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Nonparties offended by the criminal justice process can seek relief through a civil or administrative suit.82Br. and App. for Appellee Aaron J. Hernandez at 43, Commonwealth v. Hernandez, 118 N.E.3d 107 (2019) (No. SJC-12501) [hereinafter Hernandez Brief]. The government’s representative, here the Massachusetts District Attorney, represents the interests of the people in a criminal case.83Id. at 45. A victim of a crime lacks standing to challenge a sentence imposed on a criminal defendant.84H.T. v. Commonwealth, 989 N.E.2d 424, 424–25 (Mass. 2013). A victim lacks standing to move to vacate a lengthy stay of the convicted defendant’s sentence.85Hagen v. Commonwealth, 772 N.E.2d 32, 37–38 (Mass. 2002). A victim lacks standing to obtain judicial review of any aspect of another’s prosecution.86Manning v. Mun. Court of Roxbury Dist., 361 N.E.2d 1274, 1276 (Mass. 1977). Relying on the victims’ rights movement as a justification for abolishing the abatement doctrine undermines this line of authority that limits the interests and rights of individuals who are not parties to a criminal case.87See Hernandez Brief, supra note 82, at 44.
One major function of the criminal justice system is to punish the guilty defendant.88See Sabrina Margret Bierer, Note, The Importance of Being Earned: How Abatement After Death Collaterally Harms Insurers, Families, and Society at Large, 78 BROOK. L. REV. 1699, 1724–25 (2013). Criminal law has evolved to also be protective in nature, to ensure members of society feel and are protected.89See id. at 1725. However, the defendant’s rights are just as important as the victim’s rights, especially in a legal atmosphere where trial court convictions are often reversed.90See Criminal Appeals in State Courts, NJC No. 248874, at 6 (DOJ Bureau of Justice Statistics Sept. 2015), https://perma.cc/W32R-ZE8Q; James S. Liebman, The Overproduction of Death, 100 COLUM. L. REV. 2030, 2053–54 (2000). See generally Wendy Kaminer, Victims Versus Suspects, AM. PROSPECT (Dec. 19, 2001), https://perma.cc/BL82-V2UB (examining how giving rights to victims creates tension with the rights of defendants). Here, abrogation of the abatement doctrine creates an injustice to Hernandez.91See generally Hernandez Brief, supra note 82. A defendant’s death does not automatically foreclose the need for justice; the defendant’s family and friends, as well as members of the general public, still want to know the truth about whether the defendant was innocent or not.92See Samuel Wiseman, Innocence After Death, 60 CASE W. RES. L. REV. 687, 703 (2010). The “surviving family has an interest in preserving, unstained, the memory of the deceased defendant or his reputation.”93State v. Morris, 328 So. 2d 65, 67 (La. 1976). This interest is significant enough to warrant abating a conviction when the conviction’s validity or correctness has not been tested or determined.94United States v. Pauline, 625 F.2d 684, 684–85 (5th Cir. 1980).
Additionally, “appellate review of a conviction is so integral to the array of procedural safeguards due a criminal defendant that incapacity to obtain such review nullifies the jury verdict.”95Cavallaro, supra note 26, at 945. A conviction is unreliable when it cannot be subjected to the rigors of appellate review.96Cavallaro, supra note 26, at 954. Appeal is a statutory right in Massachusetts as well as most other states and the federal system.97See Commonwealth v. Hernandez, 118 N.E.3d 107, 118 (Mass. 2019); Cavallaro, supra note 26, at 946. Enforcement of the abatement doctrine may not have attractive results, but justice demands protection of such procedural rights.98See Mindlin, supra note 80, at 228. For example, the exclusionary rule suppresses unconstitutionally obtained evidence, even if the evidence clearly proves the defendant’s guilt.99See Mindlin, supra note 80, at 228–29. The world will never know, but had Hernandez seen his appeal through, his conviction may have been overturned.100See Cavallaro, supra note 26, at 977–81.
B. It Is the Legislature’s Job to Make Laws
The separation of powers doctrine is a longstanding limitation on the judiciary.101See Weigand, supra note 68, at 332. The legislature is generally in the best position to make public policy decisions because the legislative law-making process encompasses a broad range of information gathering with input from many parties.102 See Weigand, supra note 68, at 332–33. If the Court felt strongly that the abatement doctrine should be abolished based on public policy, it should have made a call to the legislature to address this issue.103See Weigand, supra note 68, at 332. “Where a long-standing common-law rule is the subject of challenge, the notions underlying separation of powers require refraining from judicial alteration absent a history of inconsistent application and ‘Herculean need.’”104Weigand, supra note 68, at 335. Here, the Court abolished the doctrine because it felt that the legislature was not doing its job.105See Justin Hansford, Cause Judging, 27 GEO. J. LEGAL ETHICS 1, 17 (2014); Weigand, supra note 68, at 330. However, a recent Second Circuit case said it best: “Abatement ab initio is a common law doctrine: If Congress deems it an undesirable one, it can act accordingly.”106United States v. Libous, 858 F.3d 64, 69 (2d Cir. 2017).
The Massachusetts legislature attempted to abolish the doctrine in 1997, but was unsuccessful in getting a bill passed.107 McCarthy, supra note 23. An Act Relative to Odin Lloyd, H.R. 3835, 190th Gen. Court (Mass. 2017),https://perma.cc/6C3J-WH2K. The only other known attempt by the legislature to modify the doctrine was a 2017 House bill (named after Odin Lloyd) stating that “the death of a defendant due to suicide who is convicted of a criminal offense shall automatically forfeit any and all rights to appeal that conviction.”108An Act Relative to Odin Lloyd, H.R. 3835, 190th Gen. Court (Mass. 2017), https://perma.cc/6C3J-WH2K. A request for a study on the amendment, along with other proposed and unrelated amendments, was ordered, but the bill never made it out of the House.109Id. The legislature’s inability or unwillingness to modify or abolish the doctrine is strong evidence of a legislative intent to preserve the abatement doctrine.110 See Andrew White, Comment, Perpetuating Injustice: Analyzing the Maryland Court of Appeals’s Refusal to Change the Common Law Doctrine of Contributory Negligence, 78 MD. L. REV. 1042, 1044 (2019).
C. Reliance on the Law
The reliance principle is prevalent in criminal law—people must be on notice about what the laws are in order to understand what conduct constitutes a crime.111See Paul J. Larkin, Jr., The Lost Due Process Doctrines, 66 CATH. U. L. REV. 293, 308 (2016). The same principle can be applied outside of criminal law.112See Thomas S. Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 VA. L. REV. 201, 234–35 (1965). Let us assume Hernandez was fully aware of the abatement doctrine before he committed suicide.113See Bieler, supra note 77 (stating Hernandez may have heard a rumor in prison that if a defendant dies while he has an open appeal, he will be acquitted of the charge and deemed not guilty). This means Hernandez may have relied on the law as it currently stood in Massachusetts in making his decision to commit suicide.114See Bieler, supra note 77. Currier, supra note 112, at 235. There is value in the certainty of law, as “it protects the individual’s right to rely on existing law in managing his affairs.”115Currier, supra note 112, at 235. While the general rule has been to give retroactive effect to an overruling decision, this rule is subject to exceptions, such as if “there has been justifiable reliance on decisions which are subsequently overruled and those who have so relied may be substantially harmed if retroactive effect is given to the overruling decision.”116S. R. Shapiro, Annotation, Comment Note.—Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, § 5(a) (1966). The SJC retroactively abolishing the abatement doctrine so that the doctrine is inapplicable to Hernandez undermines the reliance principle and results in substantial harm to Hernandez.117See John T. Parry, Culpability, Mistake, and Official Interpretations of Law, 25 AM. J. CRIM. L. 1, 52–53 (1997); supra Part III(A) (detailing how a defendant’s rights are equally as important as the victim’s rights and how appellate review of a conviction is so integral to the range of procedural safeguards due to a criminal defendant that the inability to obtain such review makes a conviction unreliable).
IV. If the SJC Wanted to Change the Doctrine, It Should Have Considered Adopting the Substitution Approach Instead of abolishing the doctrine altogether, the Court should have put more consideration into implementing the substitution approach.118See Patrick H. Gallagher, The Aaron Hernandez Case: The Inconsistencies Plaguing the Application of the Abatement Doctrine, 53 GONZ. L. REV. 263, 286 (2017). In its written opinion, the SJC spent little time considering the substitution approach.119See Commonwealth v. Hernandez, 118 N.E.3d 107, 122 (Mass. 2019). The Court felt that it was not its place to adopt the substitution approach due to practical considerations.120Id. It stated that the Massachusetts Rules of Appellate Procedure would need to be modified, yet the Court acknowledged this change was within its powers.121Id. at 122–23. The Court also grappled with the issue of if and how the system would handle substitution for a deceased indigent defendant.122Id. at 123.
The Commonwealth itself argued for application of the substitution approach in this case.123Commonwealth’s Br. at 14, Commonwealth v. Hernandez,118 N.E.3d 107 (Mass. 2019) (No. SJC-12501). This approach allows for an eligible third party, such as the defendant’s family member, to step into the shoes of the deceased defendant and complete the appeals process.124See Bierer, supra note 88, at 1709. The substitution approach would solve many of the problems identified by opponents of the abatement doctrine and is an approach already used in several states.125See Bierer, supra note 88, at 1702, 1731–33 (stating opponents of the abatement doctrine argue that victims’ interests, the government’s interests, and insurance providers’ interests are harmed when the abatement doctrine is applied); see also Barry A. Bostrom, Chad Bungard & Richard J. Seron, John Salvi III’s Revenge from the Grave: How the Abatement Doctrine Undercuts the Ability of Abortion Providers to Stop Clinic Violence, 5 N.Y.C. L. REV. 141, 165 (2002) (arguing that abating Salvi’s conviction led to an undesirable and harsh result for the key informant in the case who was ultimately unable to collect the cash award for providing information leading to the conviction of Salvi). This approach “affords defendants their right to post-trial review, [and] gives defendants’ families the opportunity to appeal the conviction and thus the restitution orders . . . .”126See Bierer, supra note 88, at 1702. Further, if the appeal process is eventually carried out by a third party, the general public would benefit from knowing if the defendant truly committed the crime.127See Gallagher, supra note 118, at 286, 288. It is in the interest of the defendant, the defendant’s estate, and the public that a defendant’s challenge to a conviction is fully reviewed.128Commonwealth v. Walker, 447 Pa. 146, 147 (1972).
Conclusion
In Commonwealth v. Hernandez, the SJC improperly abolished the common law doctrine of abatement ab initio. The Court did not side with either the Commonwealth or Hernandez. Instead, it chose to travel its own route. Further, the Court retroactively applied the change in law so that Hernandez’s conviction could not be abated. The SJC’s departure from precedent amounts to impermissible judicial activism and creates an unjust result for not only Hernandez, but also his family and society. If the Court wanted to change this long-standing doctrine, the Court should have put more consideration into adopting the substitution approach, which allows a third party to voluntarily stand in for a deceased defendant to carry out an appeal.
