The Fugitive Disentitlement Doctrine

Jay Leiderman
By: Jay Leiderman
October 14 2016

Washington Post

Can the government use the fugitive disentitlement doctrine to prevent residents of foreign countries from contesting the seizure of their property? (“In an important case currently before the US Court of Appeals for the Fourth Circuit, the federal government is claiming that they can use the ‘fugitive disentitlement’ doctrine to prevent criminal suspects living abroad from contesting the seizure of their property by asset forfeiture. They argue that this doctrine applies even if the suspects are not fugitives at all, but merely exercising their legal right to contest extradition to the United States….Cato, the Institute for Justice, and the National Association of Criminal Defense Lawyers have filed a joint amicus brief which explains why the government’s position is dangerous and unconstitutional.”)

fugitive dismantlement doctrine
When a fugitive fails to appear for court proceedings, he or she loses their right to appeal

“[A]n appellate court may employ dismissal as a sanction when a defendant’s flight operates as an affront to the dignity of the court’s proceedings.” ( Ortega-Rodriquez v. United States (1993) 507 U.S. 234, 246 [l22 L.Ed.2d 58l, 595].)  The United States Supreme Court is clear on the issue.  “It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” The explained rationale for this rule is that there could be no assurance that any judgment the appellate court issued would prove enforceable. [like the restraining order in this case has proven to be]  The court concluded that it is ” ‘clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render.’ ” Id. at 239-240.

the court, independent of statutory authority, has power to dismiss the appeal

“That the court, independent of statutory authority, has power to dismiss the appeal of an appellant who is a fugitive from justice has long been accepted as a proper exercise of the jurisdiction of the appellate courts of this state.” (People v. Clark (1927) 201 Cal. 474, 477 [259 P. 47].) The fugitive disentitlement doctrine dates back to 1880 in California with People v. Redinger (1880) 55 Cal. 290 [ ], in which the Supreme Court dismissed an escaped defendant’s appeal because “[i]t would be a farce to proceed in a criminal cause, unless the Court had control over the person charged, so that its judgment might be made effective.” (Id. at p. 298.)[1] The California disentitlement doctrine is frequently explained in these terms: “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.” (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 [89 P.2d 382].)

[1]People v. Redinger (1880) 55 Cal. 290 is the seminal authority in California for the proposition that a convicted fugitive defendant has no right to appeal.”  People v. Kang (2003) 107 Cal.App.4th 43, 48.