In the tax blog Procedurally Taxing I recently came across U.S. v. Molen, E.D. Cal. No. 2:10-cv-2591 MCE KJN (May 21, 2014); 113 AFTR 2d ¶ 2014-842 , only available on PACER at the moment:

“Generally, to determine whether a federal cause of action survives the death of a defendant, the court must first determine whether the claim asserted against that defendant is civil or penal in nature. Reiserer v. United States, 479 F.3d 1160, 1162 (9th Cir. 2007) (citing United States v. $84,740.00 Currency, 981 F.2d 1110, 1113 (9th Cir. 1992)). “It is ‘a well-settled rule that actions upon penal statutes do not survive the death’ of a party.” Id. (quoting United States v. Oberlin, 718 F.2d 894, 896 (9th Cir. 1983)).””

  This seems like a very bad rule, and someone should write a law-and-economics paper on it. It reduces or eliminates penalties, effectively freeing someone near death or willing to commit suicide from criminal liability. Of course, such a person won’t worry about prison, but he will worry about financial penalties and whether the effects of his crime can be reversed.  This matters not only for deterrence, but for restitution and retribution.  Suppose  Mr. Smith defrauds Mr. Jones of a million dollars, leaves it to his daughter, Mrs.  Brown, and commits suicide. Brown is safe from criminal  money penalties (and from punitive damages, presumably— she didn’t commit an intentional tort), so the worst Smith need fear about his daughter’s financial future is that she will have to give back the million dollars. She will have to bring her own civil lawsuit for that, however, without the benefit of having a government-financed criminal prosecution first, and without the investigatory powers of the government.   Would she have to worry about being an accessory after the fact? I don’t know.  Consider, too, the informational value of punishment, which is lost.  It would be good for the truth to be established about Smith’s criminality. Knowing that his reputation would be ruined after his death would affect Smith in advance, and if his criminality in this were established, it might prompt people to investigate his other, earlier, dealings and discover more crimes.

    This bad rule is not new, though. Here is an excerpt from U.S. v. Oberlin. 718 F.2d 894, 896 (9th Cir. 1983):

“Death pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception. Durham v. United States, 401 U.S. 481, 483, 91 S.Ct. 858, 860, 28 L.Ed.2d 200 (1971) (per curiam); United States v. Bechtel, 547 F.2d 1379 (9th Cir.1977). In such a case, the appeal is dismissed and the cause remanded to the district court with instructions to vacate the judgment and to dismiss the indictment. Id. See also United States v. Pauline, 625 F.2d 684, 685 (5th Cir.1980); United States v. Moehlenkamp,557 F.2d 126, 128 (7th Cir.1977); United States v. Crooker, 325 F.2d 318, 320 (8th Cir.1963). If the sentence included a fine, this rule of abatement ab initio prevents recovery against the estate. See Pauline, 625 F.2d at 684; United States v. Morton, 635 F.2d 723, 726 (8th Cir.1980). Similarly, an abated conviction cannot be used in any related civil litigation against the estate. See Pauline, 625 F.2d at 684.

In early cases, the reasoning behind this rule is stated simply as "all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender." United States v. Dunne, 173 F. 254, 258 (9th Cir.1909),quoting United States v. Daniels, 47 U.S. (6 How.) 11, 13, 14 L.Ed. 323 (1848). More recently, the rationale has been expressed as follows:

[W]hen an appeal has been taken from a criminal conviction to the court of appeals and death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an "integral part of [our] system for finally adjudicating [his] guilt or innocence." “