For the past 140 years, New York appellate courts have applied a doctrine in criminal cases that permits a dismissal of an appeal where a defendant absconds and is unavailable to obey the mandate of the court. More recently, the policy—referred to as the “fugitive disentitlement doctrine”—has been expanded to certain civil proceedings, immigration cases, and collateral review of convictions. This article will discuss the development of the doctrine and its recent expansion.
Development of the Doctrine
The U.S. Supreme Court first applied the doctrine in Smith v. United States1 where the defendant sought review of his criminal conviction but escaped from custody while his petition was pending. The court dismissed the appeal based on its concern that once the defendant became a fugitive, there was no way to enforce any decision the court could make: “If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case.”2
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