Interstate Rendition

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This process must be distinguished from extradition, the process by which fugitives from justice are returned by one nation to another nation under the provisions of a treaty. A rendition process is essential in a confederacy where states are sovereign or in a federation where states are semisovereign. 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).

Although the Constitution does not specifically authorize Congress to amplify the constitutional clause, Congress enacted 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 a fugitive from justice.

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.
Clause 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The rendition procedure 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 to the courts to secure justice.

Neither the constitutional clause nor the act refers to enforcement, although the duty imposed upon the asylum state governor appears to be mandatory. It was not until 1861, immediately prior to the outbreak of the Civil War, that the U.S. Supreme Court clarified in Kentucky v. Dennison (65 U.S. 66) the constitutional and statutory provisions. Kentucky sought to invoke the Court’s original jurisdiction in an attempt to obtain a writ of mandamus requiring the Ohio governor to render Dennison, a freed slave, who had been charged with the crime of assisting a slave to escape from Kentucky. The Ohio attorney general issued an opinion to Dennison holding that the constitutional Rendition Clause pertains only to acts that are crimes under Ohio statutes.

The Court, after careful examination of the pertinent constitutional clause and the 1793 statute, rejected Ohio’s contention and opined, “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 U.S. courts did not possess the authority to issue a writ of mandamus to compel a governor to perform a ministerial duty.

Subsequently, a governor on occasion refused to return a fugitive to the demanding state and thereby generated bad relations with it, leading in several instances to retaliation in the form of the refusal to honor the request of the governor of the state whose governor refused to return a fugitive in the past.

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 opined there was no constitutional or statutory provision providing for the return of a fugitive from justice to the asylum state who had been returned to the demanding state by fraud, perjury, or violence.

Surprisingly, the Court did not readdress the question of the duty of the asylum state governor until 1987, when it opined in Puerto Rico v. Branstad (489 U.S. 219) that the governor’s duty to return a fugitive from justice to the demanding state was mandatory. The Court concluded, “Considered de novo, there is no justification for distinguishing the duty to deliver fugitives from the many other species of constitutional duty enforceable in the federal courts.”

An 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.

BIBLIOGRAPHY: James A. Scott, The Law of Interstate Rendition Erroneously Referred to as Interstate Extradition: A Treatise (Chicago: Sherman Hight, 1971); 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).

Joseph F. Zimmerman

Last updated: 2006

SEE ALSO: Articles of Confederation; Federal Courts; Fugitive Slave Acts