An extradition warrant is issued for the arrest and custody of an accused fugitive and it surrenders him/her to a demanding state or country. An extradition warrant from the governor is necessary to extradite a fugitive. On the issuance of a warrant, a demanding state obtains authority to take a fugitive and try him/her under its jurisdiction.
The Uniform Criminal Extradition Act and the Uniform Extradition and Rendition Act require a governor who receives a valid request for extradition to issue a warrant for the arrest and extradition of the fugitive. The governor can delegate the task of signing of the warrant[i].
An extradition warrant authorizes a law enforcement officer or a person to whom it is directed to arrest a fugitive at any time, any place where s/he may be found. An arrested fugitive is to be brought before a judge before handing him/her to an agent of a demanding state.
In international extradition proceedings, the secretary of state has discretionary power with regard to extraditions. When a fugitive is found to be extraditable, a judge or magistrate must certify that fact to the secretary of state. S/he may affirm or refuse extradition. The secretary of state may or may not refuse extradition on humanitarian grounds[ii]. But the secretary of state has no authority to order the surrender of a fugitive where a fugitive is not found to be extraditable.
Under certain statutes, a warrant of arrest can only be issued upon a complaint made under oath. There is no requirement that the oath shall be taken before a judge or a commissioner who issues the warrant of arrest[iii]. There is no particular requirement as to the form of an arrest warrant. The validity of an arrest warrant will not be affected by any clerical errors or technical faults[iv].
Generally, a warrant should contain details with regard to a fugitive, the demanding state, details of the request from the demanding state, and the crime the fugitive is charged with in the demanding state. A warrant should also contain the way in which it has to be implemented and a direction to produce a fugitive before the judge.
A warrant issued under an invalid statute is unenforceable. An extradition order may be reversed if a governor mistakenly issued a fugitive warrant under an incorrect statutory code when the fugitive had not been charged with a crime in a demanding state.[v]
An order of extradition is not subject to direct appeal. It may be reviewed in a habeas corpus proceeding. The legality of extradition proceedings will be tested in a review during the habeas corpus proceeding. Once a governor has granted an extradition warrant, a court considering release on habeas corpus will decide only whether[vi]:
- the extradition documents are in order on their face;
- the fugitive has been charged with a crime in the demanding state;
- the petitioner is the person being demanded ; and
- the petitioner is a fugitive.
A governor’s extradition warrant that satisfies a concerned state’s statutory requirements is valid[vii]. A defect in an extradition warrant may be cured by producing the documents on the basis of which the warrant was issued. The burden of proof is on the fugitive to prove that the demanding papers from the demanding state are not proper or legally insufficient to issue a legal extradition warrant[viii].
An extradition warrant is prima-facie evidence that a person is a fugitive from justice[ix]. Generally, bail is not available after a warrant is issued. The Uniform Criminal Extradition Act does not provide for bail after an extradition warrant is issued. However, the Uniform Extradition and Rendition Act provides for conditional release on bail of an accused after the issuance of an extradition warrant[x]. A person released on bail shall be available for hearing even after release on bail. A bail can be granted in a case where delay occurs in an extradition hearing.
Statutes with regard to extradition provide recall and revocation of extradition warrant. This may be done when a governor issues an improper warrant. If a charge against him/her exists in the asylum state, an extradition warrant may be kept pending until the case in the asylum state is disposed.
[i] Macurdy v. Leach, 662 P.2d 166, 1983 Colo. LEXIS 526.
[ii] Prasoprat v. Benov, 421 F.3d 1009, 2005 U.S. App. LEXIS 18838.
[iii] Grin v. Shine, 187 U.S. 181 (U.S. 1902).
[iv] Phuong Vo v. State, 1994 Tex. App. LEXIS 1172.
[v] People ex rel. Swanson v. Fitzsimmons, 2 A.D.2d 235, 1956 N.Y. App. Div. LEXIS 4631.
[vi] Phuong Vo v. State, 1994 Tex. App. LEXIS 1172.
[vii] Ex parte Sifuentes, 2009 Tex. App. LEXIS 2919.
[viii] Wilcox v. State, 1994 Tex. App. LEXIS 129.
[ix] In Re: Goddard, 1981 Ohio App. LEXIS 12599.
[x] U.E.R.A. § 3-106(c).