What is 'fighting extradition' all about?

[The Central Scrutinizer]

For the lawyers, and anyone else who might know:

In regard to the current prisoner escape where the guard was killed:

The Hyattes are being held in a jail in Ohio where they were captured Wednesday and are fighting extradition to Tennessee on warrants of first-degree murder.

This also applies to numerous other similar cases where the accused is captured in a different state.

I understand they don't want to go back to Tennessee to face the music, but what exactly is the legal argument that is presented to try to convince a judge to not send them back. Under what circumstances would a judge grant this? Or is it just a delay tactic?

 

[ceo_esq]

The way this is typically done, where the accused person refuses to consent to extradition, is that the person's defense attorney in the asylum state will file an application for a state court writ of habeas corpus. This forces a court to make a determination of whether (1) the extradition papers are in order, (2) the captured person has been charged with a crime in the demanding state, and (3) the captured person is actually the person named in the extradition request. Unless there is some unusual irregularity, this is just going to delay the inevitable.

Article IV, Section 2 of the United States Constitution provides that "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." It's difficult for a criminal defendant (innocent or guilty) to argue around that.

 

[Cylinder]

The way this is typically done, where the accused person refuses to consent to extradition...

Right. I think the only effective procedural use is when two states are vying for the first bite at a defendant. I think there are some real attorneys on this board, so they may be able to shed some better light on the subect.

Kudos for Ms. Hyatte's attorney for being able to ask for "reasonable bail" with a straight face. That would have been too surreal for me to handle.

 

[Mojo]

The way this is typically done, where the accused person refuses to consent to extradition, is that the person's defense attorney in the asylum state will file an application ...

Presumably this attorney will have a client as long as the accused person remains in the asylum state fighting extradition.

 

[ceo_esq]

I think there are some real attorneys on this board...

Yes. I should have identified myself as one of them.

 

[Cylinder]

Yes. I should have identified myself as one of them.

Of course, that snark was restricted to the weight of my own comment - just to be clear.

Was I correct in stating that extradition squabbles most commonly occur when two states are fighting over a defendant?
I guess a federal court would have to sort it out in the case of a state that refuses extradition.

 

[Beady]

I guess a federal court would have to sort it out in the case of a state that refuses extradition.

It was quite a while ago, ~30 years, when a convicted murderer from out of state was apprehended in Michigan after he'd lived there for several(?) years. Then-governor William Milliken, for reasons I've forgotten, refused extradition to the fugitive's home state. I don't recall that the Federal courts got involved.

Sorry I can't give you more details, but that should be enough for you to locate the incident.

 

[RandFan]

Isn't there a an issue of jurisdiction? The laws of one state or nation don't necessarily apply to other states or nations. Law enforcement can't just waltz into another jurisdiction and take someone without a formal request. Someone captured in a separate jurisdiction has a right to ensure that the reason for extradition are justified and that the crime in question is a crime in both jurisdictions. Back when abortion was illegal a doctor that performed an illegal abortion in one state and fled to a state where abortion was legal could succesfully fight extradition.

I'm working from memory here so I could be wrong.

 

[Art Vandelay]

Article IV, Section 2 of the United States Constitution provides that "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." It's difficult for a criminal defendant (innocent or guilty) to argue around that.

So has this been held to apply to misdemeanors?

There's also the issue of what "flee from justice" means. Does that require that criminal procedures be started prior to the defendant moving to the other state? What if the defendant never was in the other state?

 

[ceo_esq]

Was I correct in stating that extradition squabbles most commonly occur when two states are fighting over a defendant?
I guess a federal court would have to sort it out in the case of a state that refuses extradition.

I agree that interstate extradition disagreements are rare, but I honestly don't know off the top of my head how often the type you're talking about comes up. In theory, where an individual stands accused of crimes in both the asylum state and the demanding state, the executive branches of both states would come to an agreement regarding which one will be the first to prosecute. However, the U.S. Supreme Court has held that if the laws of one state have already been put in force against a fugitive, and he is imprisoned there, that state may see the demands of its laws satisfied (i.e. that state could insist that the prisoner serve out his sentence) before any duty arises under the Constitution to extradite the person to a sister state.

I suspect that in practice, for a fugitive accused of very serious crimes in more than one state, the executive officials of the states involved will generally cooperate to see that the accused gets tried first in the jurisdiction where the most serious crime was committed, or where the likelihood of conviction and the severest sentence is greatest. It occurs to me to wonder, however, whether in this situation a non-death penalty state might try to assert primary jurisdiction in order to prevent a defendant from being executed by another state. This happens in extradition controversies between sovereign nations.

Originally posted by Beady
It was quite a while ago, ~30 years, when a convicted murderer from out of state was apprehended in Michigan after he'd lived there for several(?) years. Then-governor William Milliken, for reasons I've forgotten, refused extradition to the fugitive's home state. I don't recall that the Federal courts got involved.

Actually, I believe Governor Milliken pulled the same stunt with respect to more than one criminal fugitive while he was in office. In extradition practice, the state in which a fugitive is found is called the "asylum state", but that's only a term of art. Milliken, however, fancied that he had the power to make gubernatorial grants of actual asylum to criminals wanted in other jurisdictions. (He must have made himself very few friends among other states' governors.) Later, after Milliken left office, the federal courts made clear that governors have no discretion in such matters.

Originally posted by RandFan
Someone captured in a separate jurisdiction has a right to ensure that the reason for extradition are justified and that the crime in question is a crime in both jurisdictions. Back when abortion was illegal a doctor that performed an illegal abortion in one state and fled to a state where abortion was legal could succesfully fight extradition.

A fugitive can only ask a court in the asylum state to conduct the fairly basic review I outlined earlier.

Although I'm not specifically familiar with the abortion cases you allude to, the rule is that it doesn't matter whether the act for which the accused is sought by the demanding state is a criminal offense in the asylum state. You can see how any other rule would not only encourage criminality and flight, but also pose grave problems for federalism. (N.B.: The same rule does not necessarily apply in the case of international extraditions, which are governed by treaties.)

He was a party to the crime in New York, and afterwards left the state. It long has been established that, for purposes of extradition between the states, it does not matter what motive induced the departure

Originally posted by Art Vandelay
So has this been held to apply to misdemeanors?

Yes.

Originally posted by Art Vandelay
There's also the issue of what "flee from justice" means. Does that require that criminal procedures be started prior to the defendant moving to the other state?

No. That would make no sense, really. Criminals often head for the nearest state line before their crimes have even been discovered.

It does not matter what motive induced the person's departure from the state, by the way.

Originally posted by Art Vandelay
What if the defendant never was in the other state?

Very astute of you, Art - you've noticed the small loophole in the Extradition Clause. In fact, the federal Constitution only requires one state to extradite the accused to another state if the person was actually in the demanding state ("the State from which he fled") at the time the crime was committed!

This still covers the vast majority of crimes, of course. But what does the asylum state do in the rare case where a person's actions in a third state resulted in the commission of a crime in the demanding state? Well, many states have adopted the Uniform Criminal Extradition Act into their state law, and that Act provides that in such a case the governor "may", in his reasonable discretion, decide to extradite anyway even though the Constitution doesn't require it.

 

[RandFan]

...the rule is that it doesn't matter whether the act for which the accused is sought by the demanding state is a criminal offense in the asylum state. You can see how any other rule would not only encourage criminality and flight, but also pose grave problems for federalism. (N.B.: The same rule does not necessarily apply in the case of international extraditions, which are governed by treaties.)

Well, maybe I was thinking of international extradition then and confusing the details of an abortion case. I can't find it on the internet and trust me I've tried so I will withdraw it.

 

[Mojo]

Isn't there a an issue of jurisdiction? The laws of one state or nation don't necessarily apply to other states or nations. Law enforcement can't just waltz into another jurisdiction and take someone without a formal request. Someone captured in a separate jurisdiction has a right to ensure that the reason for extradition are justified and that the crime in question is a crime in both jurisdictions.

They certainly should have that right. Unfortunately, there's been a recent change in the law regarding extradition from the UK to the US. The US no longer has to demonstrate a prime facie case, although the UK still has to show probable cause for extradition from the US. Something to do with the "special relationship" I guess.
http://www.justice.org.uk/images/pdfs/extraditionusa.pdf
There is more info on the Justice site, but it's all pdfs, and my machine is struggling to open them.

 

[RandFan]

They certainly should have that right. Unfortunately, there's been a recent change in the law regarding extradition from the UK to the US. The US no longer has to demonstrate a prime facie case, although the UK still has to show probable cause for extradition from the US. Something to do with the "special relationship" I guess.
http://www.justice.org.uk/images/pdfs/extraditionusa.pdf
There is more info on the Justice site, but it's all pdfs, and my machine is struggling to open them.

Thanks,

Wikipedia has some information on international treaties.

Generally, an extradition treaty requires that a country seeking extradition be able to show that:

• There exists a prima facie case against the individual sought.
  
• The event in question qualifies as a crime in both countries. This is known as the principle of 'double-criminality'.
  
• The extradited person can reasonably expect a fair trial in the recipient country.
  
• The likely penalty will be proportionate to the crime.

 

[Darat]

They certainly should have that right. Unfortunately, there's been a recent change in the law regarding extradition from the UK to the US. The US no longer has to demonstrate a prime facie case, although the UK still has to show probable cause for extradition from the US. Something to do with the "special relationship" I guess.
http://www.justice.org.uk/images/pdfs/extraditionusa.pdf
There is more info on the Justice site, but it's all pdfs, and my machine is struggling to open them.

It was meant to be a reciprocal arrangement but I believe that the USA congress has (so far) not ratified the USA side of the agreement.

 

[Mojo]

It was meant to be a reciprocal arrangement but I believe that the USA congress has (so far) not ratified the USA side of the agreement.

Maybe they've got a bit more backbone than the UK Parliament.

 

[Mojo]

It was meant to be a reciprocal arrangement but I believe that the USA congress has (so far) not ratified the USA side of the agreement.

In fact, now that I can actually see the text of the treaty, the non-reciprocal nature of the agreement turns out to be nothing to do with ratification. It's actually there in the treaty, in Article 8, section 3(c):

for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.

Note that this is an additional condition that only applies to requests made by the UK to the US. For requests to the UK all that is required is a statement of the facts of the offence, the text of the relevant laws and a copy of an arrest warrant; nothing is required to provide any basis for a belief that the person sought actually committed the offense (see Article 8 section 2). So, effectively, it's enough for the US to say "we believe that such and such an offence has been committed and we want to extradite this person." The UK is then obliged to hand them over.

The fact that it isn't reciprocal is something to do with the protection that the US constitution provides US citizens. The UK constitution, of course, isn't worth the paper it isn't written on.


And I owe the UK parliament an apology for my suggestion that they are spineless. They didn't need to be consulted on ratification of the treaty as it was ratified by order in council.

For further information see here.

 

[Art Vandelay]

You can see how any other rule would not only encourage criminality and flight, but also pose grave problems for federalism.

On the other hand, this rule also poses problems for federalism. For instance, wouldn't the Fugitive Slave Act have been unnecessary if the slave states had simply passed laws stating that it is illegal for a slave to escape, then demanded extradition of anyone violating this law? Although this might imply that slave are actually people...

Yes.

It was my understanding that it is the position of the USSC that, as far as the Constitution is concerned, the word "crime" only refers to felonies. Does this principle apply only to the Sixth Amendment?

No. That would make no sense, really. Criminals often head for the nearest state line before their crimes have even been discovered.

Granted that making this distinction doesn't make much sense, but given that the purpose was not to make this distinction, isn't the word choice odd? A person can hardly be described as "fleeing from justice" simply because a state of former residence alleges a crime.

RandFan gives a list of restrictions on extradiction. (I believe that another restriction is that citizens of the asylum country are usually exempt from extradition. As are, of course, people who enjoyed diplomatic immunity at the time of the alleged crime.) Can a government, state or national, proceed with an extradition even if they are not required to do so? That is, can they simply decide to hand someone over, absent a duty to do so? Are how do "renditions" fit into all of this?

For requests to the UK all that is required is a statement of the facts of the offence, the text of the relevant laws and a copy of an arrest warrant; nothing is required to provide any basis for a belief that the person sought actually committed the offense (see Article 8 section 2).

Well, one would have to provide a basis for the belief that the person committed the offense in order to get the arrest warrant. Presumably, the warrant would reference this evidence.