Sword or shield: due process and the fugitive disentitlement doctrine.

AuthorStolley, Martha B.
PositionSupreme Court Review

    In Degen v. United States,(1) the United States Supreme Court addressed whether to expand the fugitive disentitlement doctrine(2) beyond its traditional criminal appeals setting to the context of civil forfeiture.(3) The Court unanimously ruled that a person who is a fugitive from justice on a criminal charge is not barred from defending against a civil action brought by the Government to confiscate his property.(4) In refusing to extend the doctrine to the civil forfeiture setting, the Court stated that the federal district courts' inherent powers to retain control and respect for the judicial branch do not justify imposition of the severe sanction of disentitlement.(5)

    This Note reviews the concept of the "inherent powers" of the federal courts and examines the development and evolution of the fugitive disentitlement principle.(6) This Note argues that Degen correctly discounted the various justifications advanced by courts for invoking the disentitlement doctrine in the civil forfeiture context. Furthermore, the Court properly concluded that those objectives do not outweigh the harsh and arbitrary results that application of the rule in civil forfeiture effects. This Note also argues, however, that the Court minimized the due process implications of its decision, as well as notions of basic fairness. In so doing, the Court avoided the essential issue--namely, the need to check the unlimited power of the Government and the federal courts wielded under the ruse of efficient and dignified judicial operations. Consequently, this Note concludes, the Court's opinion in Degen is ultimately an unsatisfying and vague exigesis on the broad discretion afforded the federal courts in applying the fugitive disentitlement doctrine. The decision does not explicitly restrict the federal courts' authority to disentitle the fugitive in civil forfeiture proceedings. Nor does it confront the charge that such action violates the claimant's constitutional right to defend and procedural due process right to a meaningful pre-seizure hearing.


    The fugitive disentitlement doctrine originated in the late 19th century as an equitable principle of criminal appellate procedure.(7) Traditionally, a convicted criminal defendant who flees from justice while his appeal is pending is "disentitled" from pursuing a criminal appeal.(8) Since its inception, the courts have developed and refined the doctrine. Today, it is invoked in both criminal and civil contexts.(9) The doctrine generally provides that the fugitive from justice may not seek relief from the judicial system whose authority he or she evades.(10)


      It has long been recognized that the federal courts possess "[c]ertain implied powers . . . which cannot be dispensed with in a Court, because they are necessary to the exercise of all others."(11) These "inherent powers" are not governed by rule or statute but "by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."(12) As such, "[courts independently must be vested with `power to impose silence, respect, and decorum . . . and submission to their lawful mandates, and . . . to preserve themselves and their officers from the approach and insults of pollution.'"(13) While the most prominent among these powers is the contempt sanction,(14) courts have other means available to penalize a party's disruption or disobedience of court proceedings, including striking pleadings, imposing sanctions or costs, excluding evidence, or entering a default judgment.(15)

      The exercise of these powers is not unlimited: courts are bound by the United States Constitution and by statutes, and must abide by a principle of reasonableness(16) in fight of the interests they seek to promote.(17) Because inherent powers are not subject to direct democratic controls, they are particularly potent and courts must exercise them with restraint and discretion.(18) Nonetheless, appellate courts customarily exercise the authority to dismiss the appeals of defendants who have become fugitives.(19) This power does not conflict with constitutional guarantees, as there is no constitutional right to appeal a criminal conviction.(20) By contrast, dismissal of a criminal fugitive's civil claim or the exercise of the disentitlement power in a civil setting is inherently more complex and conceptually elusive. Hence, the federal courts of appeal have split on the issue, with a bare majority holding that the doctrine is applicable in civil forfeiture actions.(21)


      The Supreme Court first established the fugitive disentitlement doctrine in Smith v. United States.(22) In Smith, the Court removed from its docket a criminal defendant's appeal of conviction because the defendant fled the Court's jurisdiction prior to resolution and thus was not under the control of the Court.(23) The Court expressed concern that the proceedings would have no effect on the fugitive, that any judgment adverse to the fugitive would be unenforceable.(24) Without power over the fugitive, any action the Court took would be useless: if the Court affirmed the criminal conviction, the defendant was unlikely to turn himself in; if it reversed and ordered a new trial, the defendant still might decide not to return.(25) The Court stated that "it is clearly within (the Court's] 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."(26)

      Confronting this issue again in Bonahan v. Nebraska,(27) the Court followed Smith and refused to consider an appeal where the accused was not within the jurisdiction of the Court due to his escape from custody.(28) The Court ordered that the case be set aside and remain off the trial court's docket unless the accused was brought before the trial court before its term ended.(29)

      In Allen v. Georgia,(30) the Court affirmed the rationale for dismissal of a criminal appeal conceived in Smith and further developed in Bonahan.(31) The Supreme Court upheld the dismissal of a defendant's appeal from a murder conviction and death sentence, thereby supporting the lower court's reasoning that his escape from justice essentially eliminated his light to prosecute a writ of error.(32) To do otherwise would enable the defendant to dictate to the court the terms of his surrender--"a contempt of [the court's] authority, to which no court is bound to submit."(33)

      The Supreme Court continued to invoke the enforceability justification in support of disentitlement--" while developing additional reasons for the doctrine. In Molinaro v. New Jersey,(35) the Court refused to adjudicate the appeal of a convicted abortionist who failed to surrender himself to authorities after he was released on bail.(36) The Court held that "[w]hile such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims."(37) This decision simultaneously affirmed the principles enumerated in Smith and Bonahan and expanded the role of disentitlement as a penalty for flouting the justice system.(38)

      In Estelle v. Dorrough,(39) the Court voiced still other justifications for the fugitive disentitlement doctrine: promoting the dignified operation of the appellate courts and deterring felony escape.(40) In response to an equal protection claim,(41) the Court upheld a Texas statute(42) mandating automatic dismissal of an appeal where the defendant has escaped while the appeal is pending.(43) In so doing, the Court stated that the statute met its intended goals of discouraging escape and encouraging voluntary surrender to authorities.(44) Furthermore, the statute promoted "the efficient, dignified operation of the Texas Court of Criminal Appeals."(45)


      The Supreme Court has not extended Molinaro(46) to civil matters relating to a criminal fugitive. However, the Court's decision in Molinaro did not indicate whether application of the disentitlement doctrine should be restricted to criminal cases. In fact, many federal appellate courts have claimed that the doctrine should apply with greater force in civil cases where an individual's liberty is not jeopardized.(47) Some Circuit Courts of Appeals have extended the doctrine to bar a fugitive in a separate but related criminal case from seeking affirmative relief from the court in a civil proceeding.(48) Still others have invoked the rule in civil in rem proceedings.(49)

      1. Circuit Restrictions on the Disentitlement Doctrine

        In United States v. $83,320 in United States Currency,(50) the Sixth Circuit became the first circuit to consider application of the fugitive disentitlement doctrine in a civil forfeiture action.(51) That court refused to extend the Supreme Court's reasoning in Molinaro to the civil forfeiture context, asserting that "the individual accused of the related criminal violation is not necessarily the only individual with a direct, litigable interest in the outcome of the forfeiture action."(52)

        Likewise, in United States v. Pole No. 3172,(53) the First Circuit rejected the disentitlement concept that a fugitive is precluded from appealing a decision ordering forfeiture.(54) Reversing the lower court's decision, the First Circuit ruled that the civil case was not "closely related" to the criminal matter from which the claimant was a fugitive.(55) More importantly, the court stated that, although the defendant was technically a claimant, his action was "more in the nature of a response" to the Government's seizure.(56) As such, the claimant was not affirmatively employing the processes of the court.(57) Similarly, the First Circuit rejected the district court's...

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