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Fugitive Pull: Applying the Fugitive Disentitlement Doctrine to Foreign Defendants

Abstract: Defendants force courts to decide whether to use judicial time and resources to hear a case when they either flee or refuse to submit to jurisdiction. Judges in the United States possess an exceptional discretionary power to deny access to the courts in these circumstances through the fugitive disentitlement doctrine. The fugitive disentitlement doctrine developed as federal common law and permits courts to exercise discretion in declining to hear appeals or motions from defendants classified as fugitives from justice.

Historically, the fugitive disentitlement doctrine was intended to prevent courts from wasting resources adjudicating cases when a defendant has fled and remains a fugitive from justice. While traditional fugitives remain subject to the doctrine, modern courts now also apply fugitive disentitlement to foreign defendants with tenuous connections to United States jurisdiction. United States federal prosecutors can leverage the doctrine to circumvent the principle of the presumption against extraterritoriality, a legal doctrine that presumes laws do not apply outside United States borders. Consequently, as long as the government can secure an indictment, fugitive disentitlement requires that foreign defendants travel to the United States and submit to its jurisdiction.

Absent an appeals process, foreign defendants must submit to United States jurisdiction and may be forced to travel great distances to defend themselves in United States courts any time a U.S. prosecutor levels charges. Allowing foreign defendants to challenge the application of the fugitive disentitlement doctrine furthers the purposes of justice and due process. This Comment argues that the United States Supreme Court should adopt the Second Circuit’s approach to fugitive disentitlement, which allows a defendant to challenge fugitivity through the collateral order doctrine as an exception to the final judgment rule.

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