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Extradition: Bringing Bad Guys Home

Posted By Charlene Sabini, PP, CLP, ALP, Monday, February 19, 2018
Updated: Thursday, February 22, 2018

“Extradition refers to one state or nation giving over an individual to another state or nation for purposes of criminal trial or punishment. Within the U.S., federal law, as complemented by state laws, governs the extradition of fugitives from one state to another. Treaties between nations and groups of nations govern international extraditions.”1  “The Extradition of Fugitives Clause in the 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. Title 18 U.S.C. § 3182 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.”2


In this country, a state does not have authority over someone found in another state. If someone is wanted for a crime committed in Oregon and is found in Montana, for instance, legal arrest can only be made by Montana law enforcement personnel. To make a legal arrest of a person wanted for a crime, and who is found outside the state where the crime was committed, there must be legal cooperation between the two states involved. This a two-step legal process. The first step is the issuance of an interstate arrest warrant. The second step is extradition. 3


Title 18 U.S.C. § 3182 provides the following requirements for interstate extraditions:


  • An executive authority demand to the state to which 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 automatically involve the U.S. Marshal.

The U. S. Supreme Court has held that the Extradition Clause applies to felonies, misdemeanors, and even some petty offenses. In the event a state chooses not to surrender a wanted individual, a federal court may order such surrender to the demanding state. 4


On another level, international extradition is a process regulated by treaty and conducted between the federal government of the U.S. and the government of a foreign country.  It is not a judicial function; it is an executive function under the U.S. President’s power to conduct foreign affairs. The Extradition Clause of the U.S. government only applies to interstate extradition.  International extradition can only be based on international comity or extradition treaties between nations.5 “Extradition treaties are binding on federal and state courts. When an extradition treaty is formed, the parties to the treaty provide the offenses for which an individual can be extradited. Treaties can be given the force of federal statutes even where there is no implementing statute because the U.S. constitution considers treaties as law of the land. . . . Our judiciary, however, can dismiss a foreign country’s extradition request if the charges the foreign government levels against the captive are not crimes in the U.S. The judicial branch can also dismiss an extradition request if the captive has a reasonable fear of facing cruel and unusual punishment or has a reasonable fear that he or she would not face a fair trial.” 6


The following website lists some of the countries with which the U. S. has extradition treaties: https://en.wikipedia.org/wiki/List_of_United_States_extradition_treaties

The following website lists some of the countries with which we do not have extradition treaties:



Historically, the first US extradition agreement was with Great Britain in 1794. It was not a full treaty but a single article in a broader treaty which sought to settle outstanding issues between our countries that were left unresolved since American independence. It mentions only the crimes of murder and forgery. The U.S.'s first modern treaty was signed with Ecuador in 1872, according to Douglas McNabb, an expert in U.S. federal criminal law and international extradition. 7

“Ingrained in most international extradition laws is the ‘political offence’ exception," according to McNabb. "It allows the requested state to refuse extradition of those accused of political crimes or where that state believes the real motivation for the request is political rather than criminal. . . . The first British Extradition Act of 1870 declared that no one could be surrendered if their offence was one of a political character. Many refugees fleeing Europe at the time—Including Karl Marx—were offered shelter in the UK.” . . . “Embassies have long given refuge to those fighting extradition. Under international law, diplomatic posts are considered the territory of the foreign nation. But authorities take different views on this. When Wikileaks editor Julian Assange took refuge in Ecuador's embassy in 2012, for example, the British government considered invoking the Diplomatic and Consular Premises Act (1987) allowing for the revocation of a building's diplomatic status if the foreign power occupying it ‘ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post.’" 8


Bars to international extradition may include:

  • When extradition is sought it must constitute a crime punishable by some minimum penalty in both the requesting and the requested states.When most countries refuse to extradite suspects of political crimes.
  • When some countries refuse extradition on grounds that the extradited person may receive capital punishment or torture. A few also include all punishments that they themselves would not administer.
  • When some will not allow extradition if the death penalty may be imposed or carried out.
  • When jurisdiction over a crime can be invoked to refuse extradition.
  • When some countries forbid extradition of their own nationals. 9


A country’s refusal to extradite suspects or criminals to another may lead to strained international relations. Often, the country to which extradition is refused will accuse the other country of refusing extradition for political reasons (regardless of whether or not this is justified).10


Meanwhile, as of 2014, all states except Missouri and South Carolina have adopted the Uniform Criminal Extradition Act. The Act includes rules for both the state demanding extradition and the state holding the individual. While there are minor differences in the versions the individual states have adopted, according to David Shestokas, the primary requirements remain the same. Under this Act, if extradition does not occur within 30 days, the state holding the criminal has the right to release him.11


Moreover, while states have the right to demand extradition of an individual, they do not always make the request. According to a USA Today editorial, there are over a million suspects and approximately 186,000 felons that states have determined not worth the time or cost to retrieve. Some suspects are designated as immune from extradition because police and prosecutors don't want to spend the time or money to retrieve them. Even if suspects are picked up in another jurisdiction, authorities where they were initially charged won't come get them.12   ///

  1. Extradition, n.d., retrieved April 8, 2017, http://criminal.findlaw.com/criminal-procedure/extradition.html (last visited April 8, 2017).
  2.  Extradition Law in the United States, (January 9, 2017), retrieved from https://en.wikipedia.org/wiki/Extradition_law_in_the_United_States (last visited April 8, 2017).
  3. David J. Shestokas, (December 4, 2013), Interstate Extradition in the United States, http://www.shestokas.com/general-law/interstate-extradition-in-the-united-states/ (last visited April 8, 2017).
  4. Ibid.
  5. International Extradition, n.d., retrieved April 8, 2017, https://extradition.uslegal.com/international-extradition/ (last visited April 8, 2017).
  6. Ibid.
  7. Kathryn Westcott and Vanessa Barford, 10 Things about Extraditionhttp://www.bbc.com/news/magazine-23029814 (last viewed April 8, 2017).
  8. Ibid.
  9. Extradition, (April 5, 2017), https://en.wikipedia.org/wiki/Extradition (last visited April 8, 2017).
  10. Ibid.
  11. Which states do not practice extradition?, n.d., Retrieved April 9, 2017, https://www.reference.com/government-politics/states-practice-extradition-50660194da95b2c4 
  12. Editorial Board, Unwanted Fugitives Next Door: Our View, (August 12, 2014)  https://www.usatoday.com/story/opinion/2014/08/12/fugitives-next-door-police-prosecutors-extradite-editorials-debates/13975379/ (last viewed April 9, 2017)

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