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Bad guys (and alleged bad guys) have always skipped town, of course. And marshals have brought them back. In the meantime, what is the rest of the justice system supposed to do? Not many people know. The fugitivity or fugitive disentitlement doctrine is not one of the better-known tenets of our justice system. But I learned much about fugitivity while writing an (excellent) opinion that has never seen the light of day. And the term has come into more common parlance in connection with President Bill Clinton’s pardon of infamous financier Marc Rich. In its essence, the fugitivity doctrine says that no person while a fugitive from the American justice system can seek the aid of that system for any purpose. The wheels of justice grind only for those who stick around. I got a crash course in fugitivity during my judging days. A person accused of a felony was being detained at St. Elizabeth’s Hospital because of alleged mental incapacity. In the case before the D.C. Circuit, he was objecting to the administration of mind-altering drugs. The other judges on the panel had already concurred in my draft opinion, to which I was putting the final touches when I received a call from the hospital: The complainant had gone over the wall. The Justice Department then filed a Suggestion of Fugitivity, and my clerks and I began our education. It’s an old doctrine. At common law, the king could seize the goods and estates of anybody who sought to escape the English justice system — not only defendants, but also witnesses. In this country, the doctrine has been fortified from time to time by statute. Perhaps its most controversial use was the pre-Civil War-era Fugitive Slave Law, which required all persons to cooperate in returning runaway slaves. The Fugitive Slave Law also gave rise to some of the perceived “exceptions” to the doctrine. In general, if the underlying legal system is so unjust as to shock the conscience, even officials exercising legal authority may refuse to observe the fugitivity doctrine. I still remember when the governor of Michigan refused to extradite an escaped black prisoner back to the Southern chain gang from which he had fled. The combination of the chain gang as punishment and the short shrift given minority defendants in some Southern courtrooms at the time was deemed sufficient to trump the governor’s obligation to return the fugitive. Today the question of fugitivity still comes up occasionally. While the language in the opinions suggests that courts have discretion as to whether to apply it in any given case, the rationale underlying the doctrine makes it hard to get around. TAKE IT OR LEAVE The first justification given for the fugitivity doctrine is that it keeps the playing field even. If a judge (or any other official within the justice system) processes the claims of a fugitive, the results are skewed in favor of the runaway: He can win, but he can’t really lose. The fugitive may embrace a favorable decision (and come in from the cold), but escape the consequences of an unfavorable decision by staying away. Sometimes, he can take advantage of the positive parts of a decision while still ignoring the negative parts. Consider the Rich pardon. President Clinton conditioned the pardon on Rich’s waiving any defenses that he might have to civil tax liability. But the existence of that waiver rests on the thin reed that Rich’s attorney promised it. The pardon was complete when signed. And if civil tax claims are ever brought, Rich is free to hire a new lawyer and assert whatever defenses he may have. A second justification for the fugitivity doctrine is that it “disentitles” the fugitive from using the very system that he has scorned. If the justice system isn’t trusted by the fugitive to handle his case in chief, then he shouldn’t be able to invoke that same system to get something that he does want. The third justification is the most obvious — that refusal to help a fugitive discourages flight and encourages voluntary surrender. Clearly, a defendant would rather negotiate the unfairness of RICO charges from a comfortable abode in Switzerland than from a hard-backed chair in the U.S. Attorney’s Office in Manhattan. This is especially true when defendants have been trying, unsuccessfully, to make the same “unfair” point about RICO for the last 30 years. In fact, a goodly number of the fugitivity cases that reach the appellate courts involve people newly residing in Switzerland. Marc Rich is just the latest. It’s not that we don’t have an extradition treaty with Switzerland, but rather that it is only narrowly applicable to those claiming Swiss nationality — which is fairly easy to get for persons of means. Given that and the convenient and discreet Swiss banking system, it’s not surprising that so many cause c�l�bre fugitives end up as Swiss taxpayers. I was unable to find any evidence that many runaway slaves claimed sanctuary in the Alps, even though Switzerland sided with the North in the subsequent Civil War. PARDON FIRST, VERDICT AFTERWARDS You might still ask: Is a presidential pardon subject to the fugitivity doctrine? (Bruce Lindsey, former deputy counsel to President Clinton, thought it was. He told a congressional committee that as to Rich’s fugitive status, “for me, it was the beginning and end” of the discussion.) Obviously, if the doctrine is discretionary in the first place, saying it applies to pardon applications doesn’t answer the whole question. But the president is clearly in the law enforcement mix, and all the justifications given for the doctrine that deal with discouraging flight and encouraging surrender are relevant to the pardon situation. That surely explains why there’s such an outcry from law enforcement about the Rich pardon, even among non-Clinton-haters. Mary Jo White, the U.S. Attorney for the Southern District of New York, considers herself a good Democrat, yet began investigating the Rich pardon. Two former prosecutors who also described themselves as Democrats told Congress that they objected to the pardon in large part because of the fugitivity problem. While partisan hay is being made with the congressional investigations, saturation press coverage, and accusations of financial skullduggery, many law enforcement critics simply see Marc Rich as a disentitled person. And they’re not buying his lawyer’s suggestion that the actions of the legal system in this case were so unjust as to shock the conscience and justify his running away. Our legal system doesn’t have a lot of sympathy for those who take off. While the revival of the television series has sought to make a fugitive’s life seem exciting, the truth is that, for most, being on the lam is hard time. We come down on anyone who aids a fugitive, and even parents are pressured to cooperate in the capture of their fugitive child. With very few exceptions, everybody in the U.S. justice system insists that if a person wants the benefits of that system, he must submit to its jurisdiction. We want the prodigal son to come home, but all is not forgiven first. Surely, the same reasoning applies to someone seeking clemency from the commander in chief of the system. That may explain why not many ex-fugitives have presidential pardons hanging on their walls. Abner J. Mikva, who teaches at the University of Chicago Law School, is a retired judge of the U.S. Court of Appeals for the D.C. Circuit, former White House counsel for President Clinton, and a former member of the U.S. House of Representatives. He served as chief judge of the D.C. Circuit from 1991 to 1994.

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