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Extradition

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.

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Extradition

EXTRADITION

EXTRADITION is the surrendering by one state to another or by one nation to another of an individual accused of a crime in the state or nation demanding the surrender of the accused. The accused who has fled to an asylum state or nation is deemed a fugitive of the law. A state or nation makes an extradition demand in order to put the accused on trial within its jurisdiction. In the United States extradition of an accused is either interstate or international. States and nations are not required automatically to surrender a fugitive because of the sovereignty of the states and nations. Sovereignty of the states and world nations necessitates extradition laws and treaties and extradition proceedings.

Interstate extradition or interstate rendition within the United States is authorized by Article IV, Section 2 of the Constitution, which states, "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." Interstate extradition is also codified in U.S. federal law. A state, acting under authority of the Constitution or federal law, may only demand the surrender of a person who is accused of committing a crime within the requesting state.

A demand from a state for the surrender of a fugitive begins extradition proceedings. Extradition proceedings are not part of the legal trial to determine the fugitive's guilt or innocence of the crime. An extradition proceeding occurs, if at all, in the asylum state to consider the merit of the demanding state's charge against the accused. After receiving a written demand and examining the facts of the charge against the accused, the governor of the asylum state may grant or deny the demand to surrender the fugitive. If denying the demand, the governor may decide to bring the accused to trial within the asylum state's jurisdiction.

If a demanding state wants to try a fugitive within the state's jurisdiction for a crime committed in the asylum state or a third state, the demanding state must rely on the authority of state legislation rather than the Constitution and federal law. Extradition of a fugitive juvenile, as opposed to a fugitive adult, from an asylum state to a requesting state occurs only if it is determined that extradition of the fugitive juvenile is in the best interests of the United States and in the best interests of the juvenile.

International extradition exists only by authority of an international treaty. The United States has the right to make an extradition demand only if a treaty with the nation providing a fugitive with asylum includes an extradition agreement. The United States has a duty to surrender an accused only if the United States has a treaty containing an extradition agreement with the nation demanding the surrender of a fugitive. Absent a treaty, neither the United States government nor the foreign government has the right to demand or the duty to deliver a criminal fugitive.

Even with a treaty, the United States and the demanding or asylum nation may place restrictions on the duty to surrender a fugitive. The use of the death penalty in many states gives reason, as authorized in the governing treaty, for a foreign asylum nation to refuse to extradite a fugitive to the United States. The foreign asylum nation may refuse to extradite a fugitive unless the United States assures the asylum country that the death penalty will not be used if the fugitive is found guilty. The United States has a "political offense exception" to extradition, which provides that the United States will not extradite to a foreign nation a fugitive accused of revolutionary activity that the offended government deems a crime. Thomas Jefferson, credited with first putting the political offense exception into international treaties, wanted to protect revolutionaries from oppressive political systems. During the 1980s U.S. courts, attempting to exempt terrorists from the political offense exception, created "wanton crimes" and "war crimes" exceptions to the U.S. political offense exception to international extradition. By 2001 the United States had treaties containing extradition agreements with 107 of the 190 nations in the world.

BIBLIOGRAPHY

Pyle, Christopher H. Extradition, Politics, and Human Rights. Philadelphia: Temple University Press, 2001.

United Nations Crime and Justice Information Network. Available http://www.uncjin.org/Laws/extradit/extindx.htm. Provides updated extradition information by country.

Akiba J.Covitz

Esa LianneSferra

Meredith L.Stewart

See alsoSovereignty, Doctrine of .

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extradition

extradition (ĕkstrədĬsh´ən), delivery of a person, suspected or convicted of a crime, by the state where he has taken refuge to the state that asserts jurisdiction over him. Its purpose is to prevent criminals who flee a country from escaping punishment. Extradition first became a common policy in the 19th cent. International law does not recognize extradition as an obligation in the absence of a treaty, and although a state may, as a matter of courtesy, refuse asylum to a fugitive and honor a request for extradition, virtually all extradition takes place under the authority of bilateral treaties. The provisions of each nation's treaties may differ greatly from those of another, and it should be noted that some treaties are formulated so that a nation is not obligated to extradite. Extradition treaties agreed to by the United States require evidence that would show the accused to have violated the laws of both the United States and the demanding country. Moreover extradition can occur only for an offense that has been named in the treaty. In common with many other nations, the United States will not surrender a fugitive wanted for a political crime. American treaties generally provide that U.S. nationals will be surrendered for trial in a foreign country. In contrast to the United States and Great Britain, most nations of the European Continent will surrender a fugitive upon simple demand and will try their own nationals domestically for crimes committed abroad. The U.S. Congress, pursuant to Article 4, Section 2, of the U.S. Constitution, has established a uniform law of extradition between the states, known as interstate rendition. This law provides that any person properly charged is subject to extradition regardless of the nature of the crime. Although the states normally comply with extradition demands, the Supreme Court has held that they have the right to refuse compliance.

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extradition

extradition. The first recorded instance of extradition procedures was in 1174 with a treaty between Henry II of England and William the Lion of Scotland to exchange criminals who had fled from one country to the other. In 1303 and 1497 similar agreements were made between England and the French and England and the Flemings. In 1794 the Jay treaty inaugurated a formal agreement between Britain and the USA, though it was limited to Canada. The Ashburton treaty in 1842 also included provision for extradition and was followed by agreements between Britain and France in 1843 and Britain and Denmark in 1862. They did not work well and in 1870 the Extradition Act attempted to improve the mechanisms. Between 1870 and 1904 35 treaties were implemented under the Act which remained in force for 119 years, enlarged by the Extradition Act of 1873, and finally superseded by the Extradition Act of 1989. Extradition does not apply to persons granted political asylum but the definition has often led to disputes.

Sandra M. Dunkin

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extradition

extradition XIX. — F., f. L. EX-1 + trāditiō TRADITION.
Hence by back-formation extradite XIX.

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