Extradition is the process by which one government requests the surrender of an individual accused or convicted of a crime from another government which has jurisdiction over the individual. Most of us think about extradition in the context of an accused fleeing the country in order to avoid prosecution. Extradition is how the United States would get that person back to the United States in order to stand trial. However, extradition is also the process by which a state government obtains jurisdiction over an individual located in another state within the United States. Each state of the United States is a sovereign over its land, and law enforcement from one state do not have jurisdiction, theoretically, to make an arrest in another state. The manner in which extradition takes place among the states is governed by the United States Constitution, Federal statute and state law. Pursuant to the Extradition Clause of the United States Constitution, one state must make a request of another state to return an accused. This typically takes place after an arrest warrant is issued in the charging state and a formal request is made by the executive authority to another state to arrest and return the suspect. Most states have adopted the Uniform Criminal Extradition Act so the extradition process is similar across the country. In the rare event that a state declines to surrender a wanted individual, a federal court may order surrender to the requesting state.
International extradition is different, and frequently more complicated, than interstate extradition. The process is regulated by treaty and conducted between the Federal Government of the United States and the government of a foreign country. Generally under United States law (18 U.S.C. § 3184), extradition may be granted only pursuant to a treaty. Therefore, if no treaty is in place with a particular country, an individual in that country may be beyond the reach of law enforcement. If the fugitive travels outside the country from which he or she is not extraditable, it may be possible to request his or her extradition from another country. This method is often used for fugitives who are citizens in their country of refuge. Some countries, however, will not permit extradition if the defendant has been lured into their territory.
However, some countries grant extradition without a treaty. Every such country requires an offer of reciprocity when extradition is accorded in the absence of a treaty. The United States will extradite, without regard to the existence of a treaty, persons (other than citizens, nationals or permanent residents of the United States), who have committed crimes of violence against nationals of the United States in foreign countries. A list of countries with which the United States has an extradition treaty relationship can be found in the Federal Criminal Code and Rules.
Every extradition treaty to which the United States is a party requires a formal request for extradition, supported by appropriate documents. Because the time involved in preparing a formal request can be lengthy, most treaties allow for the provisional arrest of fugitives in urgent cases. Thereafter, the United States must submit a formal request for extradition within a specified time set forth in the treaty.
The request for extradition is made by diplomatic note prepared by the Department of State and transmitted to the foreign government through diplomatic channels. It must be accompanied by the documents specified in the treaty. The Department of State will send the extradition documents and the translation to the American Embassy in the foreign country, which will present them under cover of a diplomatic note formally requesting extradition to the appropriate agency of the foreign government, usually the foreign ministry. The request and supporting documents are then forwarded to the court or other body responsible for determining whether the requirements of the treaty and the country’s domestic law have been met.
Although treaties are different, all generally require the following documents in support of the request for extradition: an affidavit from the prosecutor explaining the facts of the case; copies of the statutes alleged to have been violated and the statute of limitations; certified copies of the arrest warrant and complaint or indictment; evidence (usually affidavits) establishing that the crime was committed, including evidence to establish the defendant’s identity; and if the fugitive has been convicted, a certified copy of the order of judgment and committal establishing the conviction, an affidavit stating the sentence was not or was only partially served and the amount of time remaining to be served, and evidence concerning identity.
In general, a foreign government’s decision on a United States extradition request is based on the request itself and any evidence presented by the fugitive. Every extradition treaty limits extradition to certain offenses. Also, extradition treaties restrict prosecution or punishment of the fugitive to the offense for which extradition was granted. This limitation is referred to as the Rule of Specialty.
Foreign requests for extradition of fugitives from the United States are ordinarily submitted by the embassy of the country making the request to the Department of State, which reviews and forwards them to the Office of International Affairs (OIA). The requests are of two types: formal requisitions supported by all documents required under the applicable treaty, or requests for provisional arrest.
The Department of State reviews foreign extradition demands to identify any potential foreign policy problems and to ensure that there is a treaty in force between the United States and the country making the request, that the crime or crimes are extraditable offenses, and that the supporting documents are properly certified in accordance with 18 U.S.C. § 3190. If the request is in proper order, an attorney in the State Department’s Office of the Legal Adviser prepares a certificate attesting to the existence of the treaty, etc., and forwards it with the original request to the Office of International Affairs.
In the United States, subject of an extradition is entitled to a hearing under 18 U.S.C. § 3184 to determine whether the fugitive is extraditable. If the court finds the fugitive to be extraditable, it enters an order of extraditability and certifies the record to the Secretary of State, who decides whether to surrender the fugitive to the requesting government. In some cases a fugitive may waive the hearing process. The United States government opposes bond in extradition cases.
The order following the extradition hearing is not appealable, but the fugitive may petition for a writ of habeas corpus as soon as the order is issued. The district court’s decision on the writ is subject to appeal, and the extradition may be stayed if the court so orders.
The Department of State may revoke the passport of a person who is the subject of an outstanding Federal warrant. Revocation of the passport can result in loss of the fugitive’s lawful residence status, which may lead to his or her deportation.
An Interpol Red Notice is the closest instrument to an international arrest warrant in use today. Interpol (the International Criminal Police Organization) circulates notices to member countries listing persons who are wanted for extradition. The names of persons listed in the notices are placed on lookout lists (e.g., NCIC or its foreign counterpart). When a person whose name is listed comes to the attention of the police abroad, the country that sought the listing is notified through Interpol and can request either his provisional arrest (if there is urgency) or can file a formal request for extradition.
Although, government sanctioned abductions of fugitives from foreign countries are rare, abduction is not a defense. In United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Supreme Court ruled that a court has jurisdiction to try a criminal defendant even if the defendant was abducted from a foreign country against his or her will by United States agents. The courts apply the Ker-Frisbie doctrine, holding that a defendant in a Federal criminal trial may not successfully challenge the court’s jurisdiction over his person on the grounds that his presence before the Court was unlawfully secured. However, because abducting defendants from foreign countries carries political ramifications, the Department of Justice must approve such an operation in advance.
The Speedy Trial Clause of the Sixth Amendment and the Speedy Trial Act require the government to make a diligent good-faith effort to bring the defendant to trial promptly. In the context of extradition, this means that the government is obligated to seek the extradition of a fugitive as soon as his or her location becomes known unless the effort would be useless.