extradition | Definition

Doc's CJ Glossary by Adam J. McKee
Course: Criminal Law

Extradition refers to the legal act of one jurisdiction handing over a person accused or convicted of a crime to another jurisdiction where the person is needed for trial or punishment.

To fully understand extradition, imagine this: a person commits a crime in Country A but then flees to Country B. Country A wants to try this person in court for their crime, so it requests Country B to send this person back. This procedure is what we call extradition.

But it’s not as simple as asking and receiving. There are rules, processes, and sometimes politics involved in this process. It’s a delicate matter because it involves the laws and sovereignty of two different jurisdictions.

Extradition Treaties and Agreements

Often, this occurs because of agreements between countries. These are called extradition treaties. They outline the rules and procedures for extradition between the countries involved. Each treaty is different, reflecting the unique legal requirements and agreements of the participating countries.

Not all countries have such treaties with each other. However, even without a treaty, countries may choose to extradite criminals under what’s known as the principle of universal jurisdiction.

Universal Jurisdiction

This principle holds that some crimes are so grave and so against humanity that any country can prosecute them. These crimes include genocide, war crimes, and piracy. In such cases, a country may choose to extradite the accused person even without a treaty.

The Extradition Process

The process involves a formal request from the requesting jurisdiction to the jurisdiction currently hosting the accused or convicted person. The requesting country presents evidence to support their request, showing that they have a valid case against the person.

The individual who is the subject of the request isn’t left defenseless. They have the right to challenge the request and argue their case, usually with the help of a lawyer.

The Decision to Extradite

After reviewing the request and hearing from both sides, a court or a similar judicial authority makes the final decision. They weigh the evidence, consider the laws and agreements, and make a decision. If they approve the request, the extradition proceeds. If they deny it, the person stays put.

This decision-making process is critical because it upholds the principle of justice. It ensures that the person isn’t just handed over without due process, protecting their rights while also considering the rights and needs of the requesting jurisdiction.

Extradition Within The United States

The concept of extradition isn’t limited to international boundaries. In the United States, extradition takes place between states under the US Constitution and federal laws. This domestic extradition is grounded in the same principles as international extradition—bringing persons accused or convicted of a crime to justice, regardless of where they are found within the country.

The Extradition Clause of the US Constitution

The U.S. Constitution, in Article IV, Section 2, Clause 2, known as the “Extradition Clause,” lays out the foundation for interstate extradition. It says that a person charged in any State with a crime, who flees from justice to another State, must be returned to the state where the crime was committed upon demand of its governor.

Extradition Act of 1793 and The Process

To put the Extradition Clause into effect, Congress passed the Extradition Act of 1793. The law outlines the process that states must follow to extradite a person.

Similar to international extradition, the governor or another executive authority of the state where the alleged crime occurred makes a formal request to the governor of the state where the accused person is located. This request is usually accompanied by a “Governor’s Warrant,” which is a legal document that initiates the extradition process.

The request should include proof that the person is indeed the person accused and that they were present in the demanding state at the time of the crime. If the governor of the asylum state (the state where the accused is currently located) is satisfied with the request, they issue a warrant for the arrest of the fugitive.

Rights of the Accused

The accused has the right to a hearing in the asylum state before extradition. Here, the person can challenge the legality of their arrest and the extradition request. They cannot, however, argue that they are innocent of the charges against them. That argument is reserved for the trial that will take place in the demanding state.

Mandatory and Discretionary Extradition

Extradition between states is typically mandatory for crimes recognized in both states, but there are exceptions. Some states allow for discretion by their governor in deciding whether to extradite for certain offenses. However, the vast majority of interstate extraditions proceed without major issues.

Closing Thoughts

Interstate extradition is an integral part of the U.S. criminal justice system, ensuring that individuals can’t escape justice simply by crossing state lines. This legal process underscores the cooperative spirit between states in upholding the law and providing justice for all.

[ Glossary ]

Last Modified: 05/19/2023

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