Vail Valley: How does extradition work?
March 3, 2009
Extradition, in the Vail Valley and elsewhere, is the surrender by one state or country to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other, which demands the surrender.
Extradition is embodied in the U.S. Constitution, which states 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.” This is often referred to as the “rendition clause.”
Rendition is the surrender or handing over of a person or property from one jurisdiction to another. Criminal extradition is, accordingly, a type of rendition. Rendition occurs after the demand for extradition has been made and is the act of compliance with the demand.
Exceptions to the rule
Each state has a presumptive duty to render suspects on the request of another state. There are, however, exceptions established by the United States Supreme Court. A state may, for example, allow its own legal proceedings against a suspect to take precedence over that of a demanding state. Interestingly, despite the constitutional underpinnings of rendition and extradition, the Supreme Court held that a state could not petition the federal courts to command another state to honor its request for rendition if the state receiving the request chose not to do so.
In rare cases ” usually involving the death penalty ” states have, from time to time, refused or delayed rendition. In the 1987 Supreme Court the case of Puerto Rico v. Branstad, a federal interest in resolving interstate rendition disputes was established. Nevertheless, the right of refusal of rendition itself was not expressly overturned.
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Extradition for a fugitive who is charged with a crime is generally requested by a state or county prosecutor. Formal interstate rendition involves the governors of both states.
Similar to the constitutional imperatives, the Uniform Criminal Extradition Act, subscribed to by 48 states, Puerto Rico and the Virgin Islands (but not by Mississippi and South Carolina), provides that a person who leaves the demanding state after the suspected commission of a crime or conviction of a crime within that state is a fugitive from justice and is subject to mandatory extradition from the state to which he fled under the provisions of the act.
There is, however, a distinction between fugitives who were in the demanding state at the time of the crime and non-fugitives whose prior presence is not alleged. Return of fugitives is mandatory. “Return” of non-fugitives allows each governor some discretion. Often, these kinds of “non-fugitive” cases involve persons passing bad checks or failing to pay child support. But in order to be subject to the act, they must nonetheless be criminal matters.
No interstate bounty hunting
Bounty hunters and bondsmen once had limited authority to capture fugitives, even outside the state where they were wanted by the courts. When such a person was delivered, it was considered rendition, as it did not involve the intervention of the justice system in the state of capture.
Under more recent law, however, bounty hunters are not legally permitted to act outside of the state in which the offense took place. The law notwithstanding, cases of rendition still take place due to the financial interest the bondsmen have in returning a fugitive and recovering the bail. More formally, if the fugitive’s location is known, such cases should be turned over to the state to which the fugitive has fled. If the fugitive’s location is not known, the case should be turned over to United States Marshals Service, the oldest federal law enforcement agency, which is charged with apprehending wanted fugitives.
Between nations, extradition is regulated by treaties. The United States is party to more than 100 such treaties, with everyone from Albania to Zimbabwe and such places as Burma, Chile, Iraq and Tuvalu in between. Among others, the U.S. does not have extradition treaties with China, North Korea, Russia, Iran and most of the African nations. Absent an extradition treaty, and as a principle of sovereignty, the consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state.
“Extraordinary rendition” reflects a recent sad chapter in the history of the United States. The term is used to describe the apprehension and extrajudicial transfer of a person from one nation to another nation known to employ harsh interrogation techniques where, allegedly, “torture by proxy” is used on those suspected of terrorism. It has been alleged that torture has been employed with the knowledge or acquiescence of the United States.
Extradition is taking someone from where he’d rather be and putting him somewhere else he’d rather not be, usually, to face some music, all things considered, he’d likely rather not hear.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners’ associations, family law and civil litigation. He may be heard on Wednesday nights at 7 on KZYR radio (97.7 FM) as host of “Community Focus.” He may be reached at 970-926-4461 or at email@example.com.