A Study of Extradition

Prisoner looking at bars

There has been allot of discussion lately about extradition processes from states that have either no commercial bail, or outlaw bounty hunting. Not popular, but I believe that what applies under color of law is easily applied to us in our profession. While not challenged often in court under bail statutes, civil rights statutes are a federal blanket that does protect citizens, affording them the right to an extradition hearing. If a defendant is not afforded this opportunity, we expose ourselves to potential civil rights violations. Because we get away with it often, does not mean that we should not be aware of the potential threat. Personally, I feel that checking in and out with local law enforcement gives them the opportunity, under color of law, to enforce an extradition hearing. Below is an excerpt from my presentation to The National Association of Bail Bond Investigators (NABBI) in September of 2012, in Philadelphia, PA. Please due your own due diligence to update the information applicable to your area of operations. I sincerely hope that this inspires thought and discussion based on law, not opinions, amongst our peers.

The Uniform Criminal Extradition Act was derived from Constitutional Law, to wit: Article IV, Sec. 2, Clause 2:

“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 the 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.”

Although the issue was stated and codified, there were no means created in the provision or “Mechanics” to execute the required extradition.

Remedies?

In 1793 Congress enacted an implementing statute that provided the “Mechanics” to facilitate the procedure of extradition.

“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner is to be discharged.”

The Federal Act is made up of the Constitutional Provision, as well as the Federal Statutory Provisions. Notice that these are Federal and intended to establish law and procedure to implement extradition between States, or a Territory or District and a state. The Federal Act governs extradition between states, or between a territory or district and a state, but does not apply between a state, territory or district and a federal jurisdiction.

The Supreme Court has said that insofar as the Federal Act applies to any given extradition it controls, and while states may provide for extradition in situations not governed by federal law, they may not impose undue restrictions upon the constitutional rights of sister states to seek extradition under federal law

Because states developed their own individual procedures for extradition, thus making the process exceedingly complex, it became necessary to again address the issue. The Uniform Criminal Extradition Act was proposed to provide a less complicated and uniform process to facilitate the extradition of wanted individuals to the wanting state.

To reduce the confusion and uncertainty about what was required by the various states, the Commissioners on Uniform State Laws prepared an act embracing the best features of the numerous state laws, and the applicable judicial law, and offered it as a uniform law for all the states to adopt. This Law, entitled “The Uniform Criminal Extradition Act,” has now been adopted in whole or in part by 47 states, the District of Columbia, the Panama Canal Zone, Puerto Rico, and the Virgin Islands. Only Louisiana, Mississippi and South Carolina have not adopted the UCEA.

A specific provision is made for the extradition of a convicted person in that a requisition is sufficient if it is supported by a certified copy of a judgment or sentence, together with a statement by the executive authority of the demanding state that the person has escaped or violated the terms of his parole or probation.

Extradition is now possible even though the accused was never personally present in the demanding state, since he may be extradited if he did acts outside that state intentionally, resulting in a crime in the demanding state. (These crimes could involve cybercrimes such as Pornography, Or Commerce Clause Crimes, to name a few.)

Procedures have been established for the orderly rendition of a fugitive requiring an arraignment and an opportunity to petition for a writ of habeas corpus; and procedures have been established for the detention of a fugitive for a period of time to allow the respective Governors to issue their requisition and rendition warrants.

International extradition is governed wholly by federal law, and all requests for extradition from foreign countries must be coordinated through the United States Department of Justice, Criminal Division, Office of International Affairs. Requests for the extradition of persons by foreign governments shall be determined in the first instance by a judge or magistrate, but the ultimate decision to extradite is ordinarily a matter for the Executive.

A Tenth Circuit decision held that there is a cause of action under the federal Civil Rights Act, 42 U.S.C. § 1983 (1970), for abuse of the extradition power by noncompliance with the applicable law. Specifically: “The individual alleged that he was arrested without a warrant, was never taken before a judicial officer, and was never allowed counsel, although he made such a request.” The cause of action was held to be valid against the county sheriff and police officers, although not against the acting Governor and county attorney.

It is important to be aware of the limitations placed on law enforcement officials in contrast with the authority held by bondsmen. Should the individual skip bail, a bondsman has a right to pursue his principal into a state other than the one where the bond was executed and apprehend him for the purpose of return to the state from which he fled. State law enforcement officials cannot do this and are bound by extradition law in recapturing fugitives. On the other hand, once the bail principal is in the custody of law enforcement officials, the bondsman cannot exercise authority over him, and no fugitive in such custody should be turned over to a bondsman.

ENFORCEMENT OF PRESIGNED WAIVERS OF EXTRADITION

Bondsmen have indemnity agreements that authorize access to electronic records and also have a “Waiver of Extradition” clauses. But how are these indemnity agreements received by the individual states? Below is your answer!

STATE STATUTE

Alaska: No law on the subject; Attorney General’s policy disfavors seeking Enforcement.

Alabama: No law on the subject.

Arizona: Yes. (Statute – Crim. Code, ˜ 13-3865.01)

Arkansas: Yes, no laws.

California: Yes. (Pen. Code, ˜ 1555.2)

Colorado: Yes. (C.R.S. 16-19-126.5)

Connecticut: No law

Delaware: Yes. (Reed v. State (Del. 1969) 251 A.2d 549)

District of Columbia: No law. Policy disfavors enforcement

Florida: Yes. (Statute – F.S.A. ˜ 941.26(3).

Georgia: No law on the subject; depends on the judge.

Guam: No law. Courts tend to favor enforcement.

Hawaii: Yes. (Statute – H.R.S. ˜ 832-25)

Idaho: No law specifically on the subject, but policy favors since most Idaho courts impose such conditions.

Illinois: Yes (Attorney General Opinion 84-005), but may depend on judge

Indiana: No law on subject; but policy and practice favors enforcement.

Iowa: No law on the subject; policy disfavors.

Kansas: Yes. (Hunt v. Hand (Kan. 1960) 352 P.2d 1)

Kentucky: No law on the subject; Attorney General’s policy favors seeking enforcement

Louisiana: Yes. (Statute – Art. 273, Code of Crim. Proc.)

Maine: Yes. (Statute – 15 M.R.S.A., § 226)

Maryland: Yes. (White v. Hall (Md. 1972) 291 A.2d 694)

Massachusetts: No law.

Michigan: Yes. (M.C.L.A. 780.25(a))

Minnesota: Yes. (State ex rel. Swyston v. Hedman (Minn. 1970) 179 N.W.2d 282; State v. Tahash (Minn. 1962) 115 N.W.2d 676)

Mississippi: Unknown.

Missouri: No law; practice disfavors enforcement.

Montana: Yes, for the most part, but some judges do not honor them. (Statute – MCA, § 46-30-229; see also Swartz v. Woodahl (Mont. 1971) 487 P.2d 300)

Nebraska: Yes. (State v. Lingle (Neb. 1981) 308 N.W.2d 531)

Nevada: Yes. (N.R.S. 179.22 § 3)

New Hampshire: Yes. (R.S.A. 612.5-a)

New Jersey: Yes, but some counties may not enforce them. (State v. Maglio (N.J. 1988) 459 A.2d 1209; State v. Arundell (N.J. 1994) 650 A.2d 845.) May include presigned waiver as a condition of parole.

New Mexico: Unknown.

New York: No, except in the case of the Interstate Compact on Adult Supervision, Executive Law § 259-m and 259-mm.

North Carolina: No law; but policy and informal Attorney General Opinion favors enforcement.

North Dakota: No law. Policy favors since North Dakota courts and parole authorities impose extradition waivers as release conditions.

Ohio: No law. Depends on the judge.

Oklahoma: Yes. (Wright v. Page (Ok. 1966) 414 P.2d 570)

Oregon: Yes. (ORS 133.843)

LISTING OF PARTY STATES & STATUTES – UNIFORM CRIMINAL EXTRADITION ACT by STATE (CAPITOL) STATUTE

Alabama (Montgomery) Code 1975, §§ 15-9-20 to 15-9-65

Alaska (Juneau) AS 12.70.010 to 12.70.290

Arizona (Phoenix) A.R.S. §§ 13-3841 to 13-3869

Arkansas (Little Rock) A.C.A. §§ 16-94-201 to 16-94-231

California (Sacramento) West’s Ann.Pen.Code, §§ 1547 to 1558

Colorado (Denver) West’s C.R.S.A. §§ 1973, 16-19-101 to 16-19-133

Connecticut (Hartford) C.G.S.A. §§ 54-157 to 54-185

Delaware (Dover) 11 De1.C. §§ 2501 to 2530

Florida (Tallahassee) West’s F.S.A. §§ 941.01 to 941.30

Georgia (Atlanta) Official Code of Georgia Ann., §§ 17-13-20 to 17-13-49

Hawaii (Honolulu) HRS §§ 832-1 to 832-27

Idaho (Boise) I.C. §§ 19-4501 to 19-4527

Illinois (Springfield) S.H.A. ch. 60, 1J1J 18 to 49

Indiana (Indianapolis) IC 35-33-10-3

Iowa (Des Moines) 1.C.A. §§ 820.1 to 820.29

Kansas (Topeka) K.S.A. 22-2701 to 22-2730

Kentucky (Frankfort) KRS 440.150 to 440.420

Louisiana (Baton Rouge) La. Code Crim. Proc. Ann. arts. 261 to 280

Maine (Augusta) 15 M.R.S.A. §§ 201 to 229

Maryland (Annapolis) Md. Code Ann., Crim. Proc. §§ 9-101 to 9-128

Massachusetts (Boston) M.G.L.A. c. 276, §§ 11 to 20R

Michigan (Lansing) M.C.L.A. §§ 780.1 to 780.31

Minnesota (St. Paul) M.S.A. §§ 629.01 to 629.29

Missouri (Jackson) V.A.M.S. §§ 548.011 to 548.300

Montana (Jefferson City) MCA 46-30-101 to 46-30-413

Nebraska (Helena) R.R.S. 1943, §§ 29-729 to 29-758

Nevada (Lincoln) N.R.S. 179.177 to 179.235

New Hampshire (Concord) RSA 612:l to 612:30

New Jersey (Trenton) N.J.S.A. 2A:160-6 to 2A:160-35

New Mexico (Santa Fe) NMSA 1978, §§ 31-4-1 to 31-4-30

New York (Albany) McKinney’s CPL §§ 570.02 to 570.66

North Carolina (Raleigh) G.S. §§ 15A-721 to 15A-750

North Dakota (Bismarck) N.D. Cent. Code § 29-30.3-01 et seq.

Ohio (Columbus) R.C. §§ 2963.0l to 2963.29

Oklahoma (Oklahoma City) 22 Okl.St.Ann. §§ 1141.1 to 1141.30

Oregon (Salem) ORSA 133.743 to 133.857

Panama Canal Zone Canal Zone 6 C.Z.C. §§ 5021 to 5050

Pennsylvania (Harrisburg) 42 Pa.C.S.A. §§ 9121 to 9148

Puerto Rico (San Juan) 34 L.P.R.A. § 18981 to 188lbb

Rhode Island (Providence) Gen.Laws 1956, §§ 12-9-1 to 12-9-35

South Dakota (Pierre) SDCL 23-24-1 to 23-24-39

Tennessee (Nashville) T.C.A. §§ 40-1001 to 40-1035

Texas (Austin) Vernon’s Ann.Texas C.C.P. Art. 51.13

Utah (Salt Lake City) U.C.A. 1953, 77-30-1 to 77-30-28

Vermont (Montpelier) 13 V.S.A §§ 4941 to 4969

Virgin Islands 5 V.I.C. §§ 3801 to 3829

Virginia (Richmond) Code 1950, §§ 19.2-85 to 19.2-118

Washington (Olympia) RCWA 10.88.200 to 10.88.930

West Virginia (Charleston) Code, §§ 5-1-7 to 5-1-13

Wisconsin (Madison) W.S.A. 976.03

Wyoming (Cheyenne) W.S. 1977, §§ 7-3-201 to 7-3-227

National Association of Extradition Officials

www.extraditionofficials.org · (850) 459-6690

Definitions:

Extradition: The surrender by one state or nation to another of an individual accused or convicted of an offense outside the territory of the asylum state, and within the territorial jurisdiction of the demanding state, which, being competent to try and punish him, demands the surrender.

Rendition: The act of returning of such individual to the demanding state or nation.

Fugitive, Fugitive from Justice: Fugitive includes all those who are subject to extradition. Fugitive from Justice, in the narrow sense, is a person who, while bodily present in the demanding state, commits a crime therein, and thereafter, flees from the justice of that state. Conscious flight to avoid prosecution is not necessary.

Fugitive Warrant: The authority for detaining the fugitive in the asylum state pending the issuance of the Governor’s Warrant.

Requisition: The formal request made by the Governor of the demanding state upon the Governor of the asylum state for the return of the fugitive.

Governor’s Warrant: The warrant issued by the Governor of the asylum state directing that the fugitive be arrested and detained pending the arrival of the agent of the demanding state.

References available upon request.

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