Extradition Law in The United States - Interstate Extradition

Interstate Extradition

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 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, and
• Such document must charge the fugitive demanded with having committed treason, felony, or other crime, and
• 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. (Some states allow longer waiting periods of up to 90 days before release).
• Cases of kidnapping by a parent to another state would see automatic involvement by the US Marshals department.

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 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.