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Fugitive Disentitlement in Civil Forfeiture Proceedings

December 19, 2002 New York Law Journal Alan R. Friedman, Gary P. Naftalis

Litigation partners Gary P. Naftalis and Alan R. Friedman discuss two recent federal district court decisions which interpret the "fugitive disentitlement" provisions of the Civil Asset Forfeiture Reform Act of 2000 in "Fugitive Disentitlement in Civil Forfeiture Proceedings," an article published in the New York Law Journal on December 19, 2002.

The disentitlement doctrine emerged in the late 19th century as judicial device to allow appellate courts to dismiss criminal appeals of defendants who had absconded while their appeals were pending. The authors explain that the doctrine was then subsequently expanded by the lower federal courts to "disentitle" alleged fugitives from litigating a variety of claims as a result of their refusal to submit to jurisdiction in their initial criminal proceeding.

In 1996, the U.S. Supreme Court in Degen v. United States, in a significant decision, took explicit exception to judicially based disentitlement in civil forfeiture proceedings, but left open whether enforcement of a disentitlement rule under proper statutory authority would violate due process. That decision led Congress to add Section 2466 to the Civil Asset Forfeiture Reform Act of 2000. Section 2466 of the Act, entitled "Fugitive Disentitlement," explicitly expands the fugitive disentitlement doctrine beyond just criminal appeals to civil forfeiture actions.

Naftalis and Friedman conclude that the two decisions in the District of Columbia and Southern District of New York interpreting Section 2466 may lead to a reconsideration by the Supreme Court of whether the use of fugitive disentitlement in civil forfeitures is unconstitutional even if authorized by statute.

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