In the United States, extradition law is a collection of federal laws that regulate extradition, the formal process by which a fugitive found in the United States is surrendered to another country or state for trial, punishment, or rehabilitation.
For foreign countries, the extradition process is regulated by treaty and conducted between the federal government of the United States and the government of a foreign country. International extradition is considerably different from interstate or intrastate extradition. If requested by the charging state, US states and territories must extradite anyone charged with a felony, misdemeanor, or even petty offense in another US state or territory, even if the offense is not a crime in the custodial state.Interstate Rendition The federal government of the United States is a separate jurisdiction from the states with limited scope, but has nationwide law enforcement presence.
Interstate extradition The Extradition Clause in the US Constitution requires states, upon demand of another state, to deliver a fugitive from justice who has committed a "treason, felony or other crime" to the state from which the fugitive has fled. sets the process by which an executive of a state, district, or territory of the United States must arrest and turn over a fugitive from another state, district, or territory.
For a person to be extradited interstate, requires:
An executive authority demand of the jurisdiction to which a person that is a fugitive from justice has fled. The requesting executive must also produce a copy of an indictment found or an affidavit made before a magistrate of any state or territory. The document must charge the fugitive demanded with having committed treason, felony, or other crime, and it must be certified as authentic by the governor or chief magistrate of the state or territory from where the person so charged has fled. The executive receiving the request must then cause the fugitive to be arrested and secure and to notify the requesting executive authority or agent to receive the fugitive. An agent of the executive of the state demanding extradition must appear to receive the prisoner, which must occur within 30 days from time of arrest, or the prisoner may be released. Some states allow longer waiting periods, of up to 90 days. Cases of kidnapping by a parent to another state see automatic involvement by the US Marshals Service.
In Kentucky v. Dennison,65 U.S. (24 How.) 66 (1860) decided in 1860, the Supreme Court held that, although the governor of the asylum state had a constitutional duty to return a fugitive to the demanding state, the federal courts had no authority to enforce this duty. As a result, for more than 100 years, the governor of one state was deemed to have discretion on whether or not to comply with another state's request for extradition.
In a 1987 case, Puerto Rico v. Branstad,483 U.S. 219 (1987) the court overruled Dennison, and held that the governor of the asylum state has no discretion in performing his or her duty to extradite, whether that duty arises under the Extradition Clause of the Constitution or under the Extradition Act (), and that a federal court may enforce the governor's duty to return the fugitive to the demanding state.See also, Alabama ex rel. its Governor & Attorney General v. Engler, 85 F.3d 1205 (6th Cir. 1996) (Governor of Michigan directed to return a fugitive to Alabama) There are only four grounds upon which the governor of the asylum state may deny another state's request for extradition:85 F.3d at 1208. the extradition documents facially are not in order; the person has not been charged with a crime in the demanding state; the person is not the person named in the extradition documents; or the person is not a fugitive. There appears to be at least one additional exception: if the fugitive is under sentence in the asylum state, he need not be extradited until his punishment in the asylum state is completed.See People ex rel. Focarile ex rel. McNeil v. Goord, 12 Misc. 3d 981, 819 N.Y.S.2d 815 (Sup. 2006).
, in practice, Alaska and Hawaii typically do not request extradition if the crime in question is not a felony because of the associated costs of transporting the suspect and the housing fees that must be paid to the jurisdiction in which the accused is held until transported.
South Carolina, Mississippi, and Louisiana have not adopted the Uniform Criminal Extradition Act, but have adopted other extradition laws.
Intrastate extradition
Intrastate extradition may be necessary if a fugitive is arrested by a local police force (such as for a county, city, or college) in the same state or territory as the offense was allegedly committed. The procedure for doing so depends on state and possibly local laws.
International extradition
As of 2022, the United States has extradition treaties with 116 countries.Treaties in force, U.S. Department of State, January 1, 2022.Extradition to and from the United States: Overview of the Law and Contemporary Treaties, Congressional Research Service, 4 October 2016.2019 Treaties and agreements, U.S. Department of State. Most of them are dual criminality treaties (extradition for actions considered crimes in both countries), with the remaining being list treaties (extradition for a specific list of crimes).
The United States does not have extradition treaties with the following countries that it recognizes as sovereign states:"Independent States in the World", U.S. Department of State, August 5, 2022.
Afghanistan Algeria Andorra Angola Armenia Azerbaijan Bahrain Bangladesh Belarus Benin Bhutan Botswana Brunei Burkina Faso Burundi Cambodia Cameroon Cape Verde Central African Republic Chad China(extradition to Hong Kong was suspended in 2020)(Macao) Comoros Democratic Republic of the Congo Djibouti East Timor Equatorial Guinea Eritrea Ethiopia Gabon Georgia Guinea Guinea-Bissau Indonesia Iran Ivory Coast Kazakhstan Kuwait Kyrgyzstan Laos Lebanon Libya Madagascar Maldives Mali Mauritania Moldova Mongolia Morocco Mozambique Namibia Nepal Niger North Korea Oman Qatar Russia Rwanda Samoa São Tomé and Príncipe Saudi Arabia Senegal Solomon Islands Somalia South Sudan Sudan Syria Tajikistan Togo Tunisia Turkmenistan Uganda Ukraine United Arab Emirates Uzbekistan Vanuatu Vatican City Vietnam Yemen
The United States does not have extradition treaties with the following polities that it also does not recognize as sovereign states:
Abkhazia Northern Cyprus Palestine Somaliland South Ossetia Taiwan Transnistria Western Sahara
Extradition from the United States Generally under United States law (18 U.S.C. § 3184), extradition may be granted only pursuant to a treaty. Some countries grant extradition without a treaty, but every such country requires an offer of reciprocity when extradition is accorded in the absence of a treaty. Further, the 1996 amendments to 18 U.S.C. 3181 and 3184 permit the United States to 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.
All extradition treaties in force require foreign requests for extradition to be submitted through diplomatic channels, usually from the country's embassy in Washington to the Department of State. Many treaties also require that requests for provisional arrest be submitted through diplomatic channels, although some permit provisional arrest requests to be sent directly to the Department of Justice. 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, that the crime or crimes are extraditable offenses, and that the supporting documents are properly certified in accordance with 18 U.S.C. § 3190, and forwards it with the original request to the Justice Department's Office of International Affairs (OIA).
Once the OIA receives a foreign extradition request, it reviews the request for sufficiency and forwards sufficient requests to the United States Attorney's Office for the judicial district in which the fugitive is located. The U.S. Attorney's office then obtains a warrant, and the fugitive is arrested and brought before the magistrate judge or the US district judge. The government opposes bond in extradition cases. Unless the fugitive waives his or her right to a hearing, the court will hold a hearing pursuant to 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. OIA notifies the foreign government and arranges for the transfer of the fugitive to the agents appointed by the requesting country to receive him or her. Although the order following the extradition hearing is not appealable (by either the fugitive or the government), 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.
Habeas corpus in international extradition Habeas corpus is a legal procedure initiated by an individual to test the legality of his detention by the government.28 U.S.C. § 2241 et. seq. To benefit from habeas corpus, the affected person, or someone on his behalf, must file a petition for relief before a court with jurisdiction. The procedure is contained in 28 U.S.C. § 2241 et. seq. When the habeas petition contests the decision of an extradition magistrate, the individual must argue that his detention and surrender to a foreign country violates the United States Constitution, the applicable extradition treaty, or a federal statute.See M. Cherif Bassiouni, International Extradition 933-44 (2014).