Extradition

SIGNIFICANCE: In a federal system such as that of the United States, extradition plays an important role in connections among different jurisdictions.

The fundamental principle defining the procedure of extradition is provided in the U.S. Constitution. In 1793, shortly after the Constitution was adopted, the U.S. Congress passed a law charging the governors of the states with the duty of delivering up fugitives from justice found in their states. This law also gives the governors of territories the same responsibilities.

There are certain exceptions to the requirement that fugitives be surrendered to the states from which they fled. For example, if suspects are imprisoned in the states to which they travel, if they face charges there, those charges take precedence. The fugitives must stand trial and serve sentences if necessary in the states in which they currently reside before being sent back. Sometimes an extradition will be delayed for months or years while the state in which an alleged offender is apprehended processes the person through its own criminal justice system.

In the 1861 case of Kentucky v. Dennison the U.S. Supreme Court stated that although the governor of the state to which the suspect fled had a “moral duty” to return the fugitive, the federal government or the federal courts could not require him to do so. Congress addressed this problem in 1934 by making it a crime for a person to escape from one state to another for the purpose of avoiding prosecution for certain crimes. In 1987 the Supreme Court overruled parts of Kentucky v. Dennison in a case involving a suspect who had fled from Puerto Rico to Iowa after being charged with a felony.

Extradition Within U.S. Territories

In Puerto Rico v. Branstad the Supreme Court justices reconsidered whether the federal courts had the power to order governors of states to fulfill their duties under the extradition clause of the U.S. Constitution. The case involved Ronald Calder, who worked in Puerto Rico. Calder was charged with first-degree murder and released on $5,000 bail after his arraignment. When the suspect failed to appear at two preliminary hearings, he was declared a fugitive from justice. The police in Puerto Rico believed that Calder had returned to his family in Iowa, and they notified the authorities there that he was wanted on murder charges. The suspect surrendered to local police in Iowa, posted bond, and was released.

The governor of Puerto Rico requested that the governor of Iowa extradite Calder. When an extradition hearing was held in Iowa, the suspect and his attorney testified that Calder could not receive a fair trial in Puerto Rico because he was white and because he feared that witnesses in Puerto Rican courts were often corrupt. Discussions about reducing the charges against Calder were held among the parties. When those negotiations broke down, the Iowa governor refused the request for extradition.

At that point the governor of Puerto Rico went to federal court, in which he filed a complaint that the refusal to return Calder violated the extradition clause of the U.S. Constitution and the 1793 Extradition Act. He asked that the federal court require the Iowa governor to comply with the request to return the fugitive. The U.S. Supreme Court agreed that the federal courts have the power to compel a governor to deliver a suspect. They found it one of many constitutional duties imposed on the states that must be enforceable in federal courts. Extradition is a duty imposed directly on the states by the Constitution. Governors do not have any discretion in determining whether to comply, and if they refuse to comply, they could by ordered to do so by federal courts.

The courts have considered the question of when an accused person who leaves the state in which a crime was committed becomes a fugitive from justice. They have determined that it is not necessary that an indictment be issued or that the accused leave for the purpose of escaping prosecution that is anticipated or has begun. The accused is considered eligible for extradition once the criminal justice process begins. The motive for fleeing is immaterial. The law mentions treason, felony, or other crimes as offenses for which a suspect may face extradition. This has been interpreted to mean any act prohibited in the original state, including misdemeanors.

Procedures for Extradition

Governors may demand the return of fugitives from justice only after the fugitives have been formally charged with crimes. Requisition warrants must be issued requesting the return of the accused. At that point, the governors of the asylum states may issue warrants for the arrest of the suspects until agents of the demanding states arrive to remove them. The accused, however, do not have the right in all states to hearings before the governors of the asylum states to determine whether the charges are valid. Also, suspects cannot prevent extradition by predicting what will happen at their trials. Suspects may not delay or prevent extradition by asking for investigations of the motives of either the governors of the states that demand their return or the governors of the asylum states.

After suspects have been informed of the charges and of their rights, including the right to counsel, they may sign waivers of extradition by which they voluntarily consent to be transported back to the demanding states. If the accused wish to raise questions such as whether the statute of limitations on the crimes in question has expired or whether incarceration in the prisons of the demanding states constitutes cruel and unusual punishment, they must wait until returning to the demanding states and then raise such questions in court. At that time, all parties may be heard, testimony may be given, and appropriate relief may be determined. If the accused can demonstrate that they were not in the states in which the crimes were committed at the times they occurred, it is possible to raise habeas corpus claims—that is, claims that their detention or incarceration would be illegal and thus not subject to extradition. If there is a dispute about the alibis of the accused, the suspects may not have the matters resolved through habeas corpus. Court proceedings after extradition would be the proper place to determine the validity of their alibis.

Even if accused persons are brought back by unlawful violence or by abuses of the legal processes to the states in which the alleged crimes have occurred, they are subject to trial and punishment. Once returned to the original states, the suspects may be tried for offenses other than, or in addition to, those for which they are extradited.

Fugitives to and from the United States

The United States has treaties with most nations providing for international extradition procedures. When foreign nationals charged with crimes flee to the United States, both state and federal judges may issue warrants to arrest them. The fugitives are then brought before the judges, who hear and consider the evidence against them. If the judges deem the evidence sufficient to meet the requirements of an appropriate treaty, they certify that fact to the U.S. secretary of state. The proper foreign authorities may then issue warrants of requisition to have the accused handed over to them. Meanwhile, until the suspects are formally surrendered, they must be properly incarcerated. If the suspects are believed to be in the United States but their whereabouts are unknown, or if it is believed that the suspects are in the process of fleeing to the United States, judges from the District of Columbia may issue the original arrest warrants.

Treaties also provide for the return to the United States by foreign governments of fugitives from justice who have left the United States. Procedures are included in bilateral treaties, which are negotiated country by country. Issues such as the international drug trade, terrorism, and opposition by many governments to the death penalty in the United States complicated extradition negotiations during the late twentieth century. For example, in 1997, drug-related crimes led to an agreement between the United States and Mexico providing that even persons who are sentenced and serving time in one of the countries may be extradited to the other for trial. The U.S. Justice Department estimates that there are hundreds of pending extradition warrants between the two countries at any time, because individuals often commit crimes on both sides of the border. Postponing extradition until suspects serve their sentences in one country may make prosecution in the other country difficult, as witnesses forget the facts of cases or become unavailable. After facing prosecution in the requesting country, prisoners are returned to complete their original sentences.

A notable extradition case occurred in 1997 when seventeen-year-old Samuel Sheinbein, who was accused of first-degree murder in Maryland and faced charges as an adult, fled to Israel. The Federal Bureau of Investigation (FBI) faxed a copy of a federal warrant for unlawful flight to avoid prosecution and asked that Sheinbein be extradited under a US-Israeli treaty. However, Israel had a law prohibiting it from extraditing its own nationals. Sheinbein claimed Israeli citizenship because his father had been an Israeli citizen. The dispute lasted almost a year, while some members of the US Congress threatened to cut off aid to Israel unless the young man was returned.

Although an Israeli court ultimately ordered that Sheinbein be sent back for trial, the case highlighted two questions about international extradition. The nationality defense (laws that prohibit a country from surrendering its citizens for trials abroad) may complicate and sometimes thwart prosecutions of criminals. Some treaties provide for the nationality defense while others do not. Also, international human rights provisions allow a requested state the right to deny extradition if the accused would be subject to the death penalty in the requesting state but not in the requested state. As the United States is among a minority of nations that continues to execute offenders and among an even smaller minority that permits the execution of juveniles, death-penalty issues may complicate extradition proceedings.

Bibliography

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