Extradition and Rendition
Extradition and rendition refer to the process of returning a person accused of a crime in one state back to the state where the crime allegedly occurred. Extradition was once limited to the process by which fugitives from justice are returned by one nation to another nation under the provisions of a treaty, and rendition referred to the process between states in a confederacy or federal union. Extradition is now commonly used in both situations. The U.S. Constitution (Article IV, Section 2) established the current interstate rendition system and based it upon a similar provision in the Articles of Confederation and Perpetual Union (Article IV, Section 2).
|ARTICLE IV, SECTION 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 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.|
Congress soon passed enabling legislation for the rendition clause with the Rendition Act of 1793 (1 Stat. 302) detailing the procedure. The constitutional provision refers only to states, but Congress included districts and territories in the act and made the demanding state responsible for sending an officer or officers to escort the fugitive’s return and all costs associated with the arrest, incarceration, and transportation of fugitives.
The rendition procedure established by that Act is as follows: (1) a fugitive from justice may be rendered for any offense made punishable by the demanding state regardless of whether the action constituting the crime is a crime in the asylum state, (2) only the governor can demand the governor of the asylum state to apprehend and return the fugitive, (3) the latter’s duty to return the fugitive is mandatory and ministerial, and (4) the fugitive may exercise his or her due process of law right to appeal.
Neither the constitutional clause nor the act refers to enforcement, although the duty imposed upon the asylum state governor appears to be mandatory. Shortly before the Civil War, the U.S. Supreme Court grappled with whether the federal courts had the authority to compel a state governor to return a fugitive. In Kentucky v. Dennison (1860), the slave state of Kentucky demanded the return of a free African American man who had helped an enslaved person to freedom in the free state of Ohio. Kentucky had indicted the man, and its governor demanded his extradition from Ohio. The governor of Ohio, William Dennison, refused, and Kentucky sought mandamus relief in the U.S. Supreme Court.
The Court, after careful examination of the pertinent constitutional clause and the 1793 statute, rejected Ohio’s contention: “The act does not provide any means to complete the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the state; nor is there any clause or provision in the constitution which arms the Government of the United States with this power.” While acknowledging that the constitutional duty of the asylum state governor is a mandatory one, the Court concluded that federal courts did not possess the authority to issue a writ of mandamus to compel a governor to perform a ministerial duty.
Subsequently, governors on occasion refused to return a fugitive to a demanding state. This sometimes contributed to a cycle of states refusing to extradite fugitives because earlier requests had not been honored.
In 1893, the Court held in Lascellas v. Georgia (184 U.S. 537) that a fugitive rendered to stand trial for an offense listed in the rendition request could be tried upon return to the demanding state for all crimes committed within its jurisdiction and subsequently could be rendered to other states to stand trial for crimes committed in those states. The Court in Pettibone v. Nichols (203 U.S. 192) in 1906 ruled that no constitutional or statutory provision provided for the return of a fugitive from justice to the asylum state even though he had been returned to the demanding state through fraudulent or violent means.
Kentucky v. Dennison remained law until the Supreme Court revisited the issue in 1987, when Puerto Rico v. Branstad. In that case, a native of Iowa was accused of a crime in Puerto Rico. The man fled back to Iowa. The governor of Puerto Rico asked the state to return the defendant, and Iowa refused. Puerto Rico filed suit in federal district court in Iowa to force the defendant’s return. On appeal to the Supreme Court, the Court overruled Kentucky v. Dennison, holding that federal courts do have the power to require state governors to return persons accused of crimes.
Although Kentucky v. Dennison was not overruled for more than one hundred years, the states moved forward with efforts to modernize rendition law. Many of the specifics of rendition procedure are outlined in the Uniform Criminal Extradition Act (UCEA), which has been adopted by states except South Caroline and Missouri. This uniform law implements the Extradition Clause and federal law. States that have adopted the UCEA sometimes adjust the details of the uniform law, but the process of extradition generally begins with a request from the governor of one state to the governor of the asylum state. This “governor’s warrant” creates a prima facie case that extradition is justified. The courts in the asylum state determine only whether the extradition documents are proper. The courts do not consider the merits of the underlying charge.
Another interstate compact, the Interstate Agreement on Detainers, contains provisions somewhat similar to those involved in the rendition of fugitives from justice. The purpose of the agreement is to ensure that prisoners in one state charged with the commission of crimes in another state (or states) are not deprived of their speedy trial right. Under the agreement, a prisoner with an untried indictment, information, or complaint must be notified and be brought to trial within 180 days after the prosecuting officer has received written notice of his or her place of imprisonment and his or her request for a final disposition of the indictment, information, or complaint. The state officer in charge of the prisoner’s custody must deliver the prisoner for temporary custody in the requesting state. Upon completion of the trial, the requesting state returns the prisoner.
In the modern era, states have on occasion attempted to refuse to return fugitives. These attempts usually do not stand up to challenge. For example, in 1997, the New Mexico Supreme Court denied an extradition request from Ohio on grounds that the person was not a fugitive from justice, but a “fugitive from injustice.” The person, Manuel Ortiz, was an Ohio parolee who fled to New Mexico after Ohio officials threatened to revoke his parole for speaking out against alleged human-rights violations in the Ohio prison system. On appeal in New Mexico ex rel. Ortiz v. Reed, the U.S. Supreme Court ruled unanimously that New Mexico could not refuse to extradite Ortiz. The Court held that New Mexico had gone beyond the appropriate inquiry in an extradition case: “[I]n case after case we have held that claims relating to what actually happened in the demanding state . . . are issues that must be tried in the courts of that state, and not in those of the asylum state.”
Leslie W. Abramson, “Extradition in America: Of Uniform Acts and Governmental Discretion,” Baylor Law Review, 793 (1981); John J. Murphy, “Revising Domestic Extradition Law,” University of Pennsylvania Law Review 1063 (April 1983); James A. Scott, The Law of Interstate Rendition Erroneously Referred to as Interstate Extradition: A Treatise (Chicago: Sherman Hight, 1917); Joseph F. Zimmerman, Interstate Cooperation: Compacts and Agreements (Westport, CT: Praeger, 2002); and Joseph F. Zimmerman, Interstate Relations: The Neglected Dimension of Federalism (Westport, CT: Praeger, 1996).
Lance A. Cooper (revised and updated October 2018); Joseph F. Zimmerman (2006)
Last updated: October 2018