extradition

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Extradition

The transfer of an accused from one state or country to another state or country that seeks to place the accused on trial.

Extradition comes into play when a person charged with a crime under state statutes flees the state. An individual charged with a federal crime may be moved from one state to another without any extradition procedures.

Article IV, Section 2, of the U.S. Constitution provides that upon the demand of the governor of the prosecuting state, a state to which a person charged with a crime has fled must remove the accused "to the State having Jurisdiction of the Crime." When extraditing an accused from one state to another, most states follow the procedures set forth in the Uniform Criminal Extradition Act, which has been adopted by most jurisdictions. A newer uniform act, the Uniform Extradition and Rendition Act, is designed to streamline the extradition process and provide additional protections for the person sought, but by 1995, it had been adopted by only one state.

Extradition from one state to another takes place on the order of the governor of the Asylum state (the state where the accused is located). The courts in the asylum state have a somewhat limited function in extraditing the accused to the state where she or he is charged with a crime. They determine only whether the extradition documents are in order (e.g., whether they allege that the accused has committed a crime and that she or he is a fugitive) and do not consider the merits of the charge, since the trial of the accused will take place in the state demanding extradition.

In some cases, courts considering extradition from one state to another may go beyond the procedural formalities and look at the merits of the criminal charge or at allegations by the accused that extradition will lead to harmful consequences beyond a prison term. These cases are rare because under the U.S. Constitution, states are not given the power to review the underlying charge. This problem occurred in New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 118 S. Ct. 1860, 141 L. Ed. 2d 131 (1998), in which the state of New Mexico refused to return a fugitive to the state of Ohio.

The Supreme Court has identified that a court considering an extradition case can only decide four issues: (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for the extradition, and (4) whether the petitioner is a fugitive. The New Mexico Supreme Court in Reed determined that the person subject to the extradition, Manuel Ortiz, was not a "fugitive," and refused to honor the extradition order from the state of Ohio. The Supreme Court found that New Mexico courts had overstepped their authority and ordered the New Mexico Supreme Court to return the fugitive.

Extradition from one nation to another is handled in a similar manner, with the head of one country demanding the return of a fugitive who is alleged to have committed a crime in that country. Extradition between nations is usually based on a treaty between the country where the accused is currently located and the country seeking to place him or her on trial for an alleged crime. The United States has entered into extradition treaties with most countries in Europe and Latin America, and with a few countries in Africa and Asia.

To determine whether an individual can be extradited pursuant to a treaty, the language of the particular treaty must be examined. Some treaties list all the offenses for which a person can be extradited; others provide a minimum standard of punishment that will render an offense extraditable. The extradition treaties of most countries fall into the second category, since treaties in the first category must be revised completely if an offense is added to the list.

Even if they do not specifically say so, most treaties contemplate that for an offense to be subject to extradition, it must be a crime under the law in both jurisdictions. This is called the doctrine of double criminality. The name by which the crime is described in the two countries need not be the same, nor must the punishment be the same; simply, the requirement of double criminality is met if the particular act charged is criminal in both jurisdictions (Collins v. Loisel, 259 U.S. 309, 42 S. Ct. 469, 66L. Ed. 956 [1922]).

The doctrine of specialty is also often applied even when not specifically stated in a treaty. It means that once a person has been surrendered, he or she can be prosecuted or punished only for the crimes for which extradition was requested, and not for any other crimes committed prior to the surrender. The doctrine was first established over a hundred years ago, in United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886). In Rauscher, the defendant, a U.S. citizen, was extradited from Great Britain for the beating death of a ship's crew member on a U.S. vessel but was indicted and tried on a charge of Cruel and Unusual Punishment based on the same act. Although the specialty principle was not specifically enumerated in the treaty that allowed the extradition, the U.S. Supreme Court held that an accused "shall not be arrested or tried for any other offense than that with which he was charged in those proceedings."

Extradition treaties often provide exceptions under which a nation can refuse to surrender a fugitive sought by another nation. Many nations will not extradite persons charged with certain political offenses, such as Treason, Sedition, and Espionage. Refusal to extradite under such circumstances is based on the policy that a nation that disagrees with or disapproves of another nation's political system will be reluctant to return for prosecution a dissident who likewise has been critical of the other nation. But, of course, not every criminal act will necessarily be protected. For example, some treaties provide that certain crimes, such as the assassination of a head of a foreign government, do not constitute political offenses that are exempt from extradition. The rise in airplane Hijacking, Terrorism, and hostage taking in the late twentieth century led many nations to enter into multilateral conventions in which the signing countries mutually agreed to extradite individuals who committed such crimes.

Since the 1980s, the international extradition process has been viewed by law enforcement authorities as too time-consuming, expensive, and complicated. It has also been criticized for frequently failing to bring fugitives to justice. As a result, some countries, including the United States, have turned to abduction to return a fugitive to a nation to be tried. Although its legality is questionable, abduction has sometimes been justified to combat drug trafficking and to ensure national security. In 1989, for example, the United States invaded Panama in an attempt to bring General Manuel Noriega to the United States to face charges related to drug trafficking. The george h. w. bush administration asserted that the invasion was necessary to protect national interests in the Panama Canal and to prevent an armed attack by Panama.

Noriega was eventually brought to the United States to stand trial, where he contested the validity of the federal district court's jurisdiction over him (United States v. Noriega, 746 F. Supp. 1506 [S.D. Fla. 1990]). The court rejected his contention, holding that Noriega could be tried in the United States, despite the means that were used to bring him to trial. The court declined to address the underlying legality of Noriega's capture, concluding that, as an unrecognized head of state, Noriega lacked standing (the legal right) to challenge the invasion as a violation of International Law in the absence of protests from the legitimate government of Panama over the charges leveled against him.

In United States v. Alvarez-Machain, 504 U.S. 655, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992), the Supreme Court held that Humberto Alvarez-Machain's forcible abduction did not prohibit his criminal trial in the United States. Alvarez, a citizen of Mexico and a physician, was accused by the U.S. government of participating in the Kidnapping, torture, and murder of a U.S. Drug Enforcement Administration agent and the agent's airplane pilot, and was indicted for these crimes. Alvarez was later kidnapped from his office and flown by private plane to El Paso, Texas. The Mexican government objected to the abduction and protested it as a violation of the extradition treaty between the United States and Mexico. It asked that the law enforcement agents responsible for the kidnapping be extradited to Mexico, but the United States refused to do so.

Alvarez sought to dismiss the indictment, claiming that the federal district court lacked jurisdiction to try him because his abduction violated the extradition treaty. The district court agreed and dismissed the indictment. The U.S. Court of Appeals for the Ninth Circuit affirmed, holding that the abduction violated the treaty's underlying purpose of providing a legal means for bringing a person to the United States to face criminal charges. On appeal, the U.S. Supreme Court rejected the lower courts' use of the treaty as the basis for prohibiting Alvarez's trial. Justice william h. rehnquist, writing for the majority, found in the treaty no provisions stating that abductions were forbidden. He further maintained that the treaty was "not the only way in which one country may gain custody of a national of the other country for the purposes of prosecution." Thus, he concluded, the abduction did not prohibit Alvarez's trial in a U.S. court on criminal charges. Justice John Paul Stevens filed a strong dissenting opinion in which Justices harry blackmun and Sandra Day O'Connor joined. According to the dissent, Alvarez's abduction was a gross violation of international law, intruding on the territorial integrity of Mexico.

Other nations have also struggled with high-profile extradition cases. For example, in 2000, officials in Britain refused to extradite former Chilean dictator Augusto Pinochet to Spain where he would face trial for thousands of murders and other atrocities during his rule from 1973 to 1990. While, Pinochet had absolute Immunity from prosecution in Chile, other nations, including Spain, were free to charge him with his alleged crimes. When Britain refused to extradite him, he was able to return to Chile and avoid prosecution.

Further readings

"Abduction as an Alternative to Extradition—A Dangerous Method to Obtain Jurisdiction over Criminal Defendants." 1993. Wake Forest Law Review 28.

McWhirter, Robert James. 2001. The Criminal Lawyer's Guide to Immigration Law: Questions and Answers. Chicago: American Bar Association.

Marcus, Paul. 2003. Criminal Procedure in Practice. Notre Dame, Ind.: National Institute for Trial Advocacy.

Cross-references

Fugitive from Justice; Jurisdiction; Presidential Powers; Trial.

extradition

n. the surrender by one state or country of a person charged with a crime in another state or country. Formally, the request of the state (usually through the Governor's office) claiming the right to prosecute is made to the Governor of the state in which the accused is present. Occasionally a Governor will refuse to extradite (send the person back) if he/she is satisfied that the prosecution is not warranted, despite a constitutional mandate that "on demand of the Executive authority of the State from which [a fugitive from justice] fled, be delivered up, to be removed to the State having jurisdiction of the crime." The defendant may "waive extradition" and allow himself/herself to be taken into custody and returned to the state where charges are pending.

International extradition is more difficult and is governed in many cases by treaty. While most countries will extradite persons charged with serious crimes, some will not, others refuse to extradite for certain crimes, set up legal roadblocks, or, as in Canada's case, will not extradite if the accused may get the death penalty. (See: fugitive from justice)

extradition

noun apprehension and transfer, cappure and deportation, change of place, deportation, seizure and transference, sending to another state for trial, surrenner of an individual, transfer to another authority, translocation, turning over to a foreign state
Associated concepts: habeas corpus, rendition
See also: banishment, deportation, expulsion

extradition

the surrender of a person by one state to another. For extradition to be possible there must be an extradition treaty between the UK and the state requiring the surrender. The offence alleged to be committed by the person whose surrender is required must be an offence in the UK as well as in the requesting state; it must be covered by the treaty and be within the list of extraditable offences contained in the legislation and it must not be of a political nature.

EXTRADITION, civil law. The act of sending, by authority of law, a person accused of a crime to a foreign jurisdiction where it was committed, in' order that he may be tried there. Merl. Rep. h.t.
     2. By the constitution and laws of the United States, fugitives from justice (q.v.) may be demanded by the executive of the one state where the crime has been committed from that of another where the accused is. Const. United States, art. 4, s. 2, 2 3 Story, Com. Const. U. S. Sec. 1801, et seq.
     3. The government of the United States is bound by some treaty stipulation's to surrender criminals who take refuge within the country, but independently of such conventions, it is questionable whether criminals can be surrendered. 1 Kent. Com. 36; 4 John. C. R. 106; 1 Amer. Jurist, 297; 10 Serg. & Rawle, 125; 22 Amer. Jur. 330; Story's Confl. of Laws, p. 520; Wheat. Intern. Law, 111.
     4. As to when the extradition or delivery of the supposed criminal is complete is not very certain. A case occurred in, France of a Mr. Cassado, a Spaniard, who had taken refuge in Bayonne. Upon an application made to the French government, he was delivered to the Spanish consul who had authority to take him to Spain, and while in the act of removing him with the assistance of French officers, a creditor obtained an execution against his person, and made an attempt to execute it and retain Cassado in France, but the council of state, (conseil d'etat) on appeal, decided that the courts could not interfere, and directed Cassado to be delivered to the Spanish authorities. Morrin, Dict. du Dr. Crim. h.v.