Interstate Extradition in the United States
Returning a Fugitive to the State of the Crime
Apr 8, 2009
In order to legally bring a person wanted for criminal activity who is found in a different state there must be cooperation between the two states. There is a legal process for this to happen and it is referred to as extradition.
Extradition is the official process by which a state asks for and acquires from another state the custody of a suspected or convicted criminal. The manner in which extradition takes place among the states is governed by the United States Constitution, Federal statute and state law.
The Extradition Clause of the United States Constitution
Each state of the United States is considered to be sovereign over its territory and when the Constitution was written there was concern about criminals being able to safely flee from one state to another to avoid prosecution. In response to this concern, Article IV, Section II, Clause 2 was included. This is known as the Extradition Clause and reads as follows:
“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.”
The Supreme Court of the United States has held that the Extradition Clause applies to felonies, misdemeanors and even to petty offenses. It has further held that in the event a state chooses not to surrender a wanted individual, a federal court may order such surrender to the demanding state.
Federal Statutes Governing Extradition
Congress has passed laws pursuant to the Extradition Clause to further define the circumstances of extradition between the states. In order for a person to be extradited interstate, 18 U.S.C. § 3182 requires:
- An executive authority demand of the jurisdiction to which a person that is a fugitive from justice has fled.
- The requesting executive must produce a copy of an indictment found or an affidavit made before a magistrate of any State or Territory
- Such document must charge the fugitive demanded with having committed treason, felony, or other crime
- Such document must be certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled.
- The executive receiving the request must then cause the fugitive to be arrested and secured, and 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 thirty days from time of arrest or the prisoner may be released.
- Cases of kidnapping by a parent to another state would be automatic involvement by the US Marshals department.
The Uniform Criminal Extradition Act
The UCEA has been adopted by 48 of the 50 states, the only exceptions being South Carolina and Missouri. The Act sets forth the process by which a state may request surrender of a wanted individual and the manner in which that individual is surrendered. While there are some variances among the Act as adopted by the states, the principal requirements for extradition are as follows:
- A valid arrest warrant issued by the demanding state
- A request from the Executive Authority of the demanding state (typically the Governor)
- A judicial hearing in the state having custody of the wanted person
- A waiver of extradition by the wanted person or a judicial finding that the Governor’s request follows all legal requirements if extradition is not waived
- Custody taken by the demanding state of the wanted person within 30 days
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