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Extradition law in the United States is the formal process by which a fugitive found in the United States is surrendered to another country or state for trial or punishment. For foreign countries the process is regulated by treaty and conducted between the Federal Government of the United States and the government of a foreign country. The process is considerably different from interstate extradition, or interstate rendition, as mandated by Article 4, Section 2, Clause 2 of the United States Constitution.
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. 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.
In Kentucky v. Dennison, decided in 1860, the Supreme Court held that, although the Governor of the asylum state had a constitutional duty to return a fugitive to the demanding state, the federal courts had no authority to enforce this duty. As a result, for more than 100 years, the governor of one state was deemed to have discretion on whether or not he/she would comply with another state’s request for extradition.
In a 1987 case, Puerto Rico v. Branstad, the Court overruled Dennison, and held that the Governor of the asylum state has no discretion in performing his or her duty to extradite, whether that duty arises under the Extradition Clause of the Constitution or under the Extradition Act (18 U.S.C. § 3182), and that a federal court may enforce the Governor’s duty to return the fugitive to the demanding state. There are only four grounds upon which the Governor of the asylum state may deny another state’s request for extradition: (1) the extradition documents facially are not in order; (2) the person has not been charged with a crime in the demanding state; (3) the person is not the person named in the extradition documents; or (4) the person is not a fugitive. There appears to be at least one additional exception: if the fugitive is under sentence in the asylum state, he need not be extradited until his punishment in the asylum state is completed.
The United States has extradition treaties with more than 100 countries. Of the treaties most are dual criminality treaties with the remaining being list treaties. A list of countries with which the United States has an extradition treaty relationship can be found in the Federal Criminal Code and Rules, following 18 U.S.C. § 3181, but this list may not be completely accurate. (This list is reproduced as the list of United States extradition treaties.)
The United States maintains diplomatic relations but, according to the above-mentioned list, does not have extradition treaties with the following countries: Afghanistan, Algeria, Andorra, Angola, Armenia, Bahrain, Bangladesh, Belarus, Botswana, Brunei, Burkina Faso, Burma, Burundi, Cambodia, Cameroon, Cape Verde, the Central African Republic, Chad, China (except Hong Kong), Comoros, Congo (Kinshasa), Congo (Brazzaville), Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Guinea, Guinea-Bissau, Indonesia, Ivory Coast, Kazakhstan, Kuwait, Laos, Lebanon, Libya, Madagascar, Maldives, Mali, Marshall Islands, Mauritania, Micronesia, Moldova, Mongolia, Morocco, Mozambique, Namibia, Nepal, Niger, Oman, Qatar, Russia, Rwanda, Samoa, São Tomé & Príncipe, Saudi Arabia, Senegal, Slovenia,Somalia, Sudan, South Sudan, Syria, Togo, Tunisia, Uganda, Ukraine, the United Arab Emirates, Uzbekistan, Vanuatu, Vatican City, Vietnam, Yemen, and the countries formerly part of Yugoslavia: Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, Montenegro, and Serbia.
Generally under United States law (18 U.S.C. § 3184), extradition may be granted only pursuant to a treaty. Some countries grant extradition without a treaty, but every such country requires an offer of reciprocity when extradition is accorded in the absence of a treaty. Further, the 1996 amendments to 18 U.S.C. 3181 and 3184 permit the United States to extradite, without regard to the existence of a treaty, persons (other than citizens, nationals or permanent residents of the United States), who have committed crimes of violence against nationals of the United States in foreign countries.
All extradition treaties in force require foreign requests for extradition to be submitted through diplomatic channels, usually from the country's embassy in Washington to the Department of State. Many treaties also require that requests for provisional arrest be submitted through diplomatic channels, although some permit provisional arrest requests to be sent directly to the Department of Justice. The Department of State reviews foreign extradition demands to identify any potential foreign policy problems and to ensure that there is a treaty in force between the United States and the country making the request, that the crime or crimes are extraditable offenses, and that the supporting documents are properly certified in accordance with 18 U.S.C. § 3190. If the request is in proper order, an attorney in the State Department's Office of the Legal Adviser prepares a certificate attesting to the existence of the treaty, etc., and forwards it with the original request to the Justice Department's Office of International Affairs ("OIA").
Once the OIA receives a foreign extradition request, it reviews the request for sufficiency and forwards appropriate ones to the United States Attorney's Office for the judicial district in which the fugitive is located. The U.S. Attorney's office then obtains a warrant, and the fugitive is arrested and brought before the magistrate judge or the US district judge. The government opposes bond in extradition cases. Unless the fugitive waives his or her right to a hearing, the court will hold a hearing pursuant to 18 U.S.C. § 3184 to determine whether the fugitive is extraditable. If the court finds the fugitive to be extraditable, it enters an order of extraditability and certifies the record to the Secretary of State, who decides whether to surrender the fugitive to the requesting government. OIA notifies the foreign government and arranges for the transfer of the fugitive to the agents appointed by the requesting country to receive him or her. Although the order following the extradition hearing is not appealable (by either the fugitive or the government), the fugitive may petition for a writ of habeas corpus as soon as the order is issued. The district court's decision on the writ is subject to appeal, and the extradition may be stayed if the court so orders.
The federal structure of the United States can pose particular problems with respect to extraditions when the police power and the power of foreign relations are held at different levels of the federal hierarchy. For instance, in the United States, most criminal prosecutions occur at the state level, and most foreign relations occur at the federal level. In fact, under the United States Constitution, foreign countries may not have official treaty relations with sub-national units such as individual states; rather, they may have treaty relations only with the federal government. As a result, a state that wishes to prosecute an individual located in a foreign country must direct its extradition request through the federal government, which will negotiate the extradition with the foreign country. However, due to the constraints of federalism, any conditions on the extradition accepted by the federal government—such as not to impose the death penalty—are not binding on individual states.
In the case of Soering v. United Kingdom, the European Court of Human Rights ruled that the United Kingdom was not permitted under its treaty obligations to extradite an individual to the United States, because the United States' federal government was constitutionally unable to offer binding assurances that the death penalty would not be sought in Virginia courts. Ultimately, the Commonwealth of Virginia itself had to offer assurances to the federal government, which passed those assurances on to the United Kingdom, which extradited the individual to the United States.
Additional problems can arise due to differing criteria for crimes. For instance, in the United States, crossing state lines is a prerequisite for certain federal crimes (otherwise crimes such as murder are handled by state governments except in certain circumstances such as the killing of a federal official). This transportation clause is absent from the laws of many countries. Extradition treaties or subsequent diplomatic correspondence often include language providing that such criteria should not be taken into account when checking if the crime is one in the country from which extradition should apply.
To clarify the above point, if a person in the United States crosses the borders of the United States to go to another country, then that person has crossed a federal border, and federal law would apply in addition to state law. Crossing state lines (within the U.S.) in committing a crime could also create federal jurisdiction. In addition, travel by airplane in the United States subjects one to federal law, as all airports are subject to federal jurisdiction.