Every act forbidden and made punishable by the law of a state is within the operation of the federal constitutional provision on extradition[i]. The words treason, felony, or other crime include every act forbidden and made punishable by a law of the state. The word crime itself includes every offense, from the highest to the lowest grade of offenses including misdemeanors[ii]. It is to be noted that extradition for the purpose of criminal prosecution is the exercise of a sovereign function, which the courts cannot review[iii].
The law of the land with respect to interstate extradition authorizes the governor and makes it his/her duty to see that the laws are executed and upon proper application and evidence to him/her to grant a requisition, without regard to the character or degree of the crime, whether it be treason, a felony, or a misdemeanor[iv].
It is to be noted that extraditions must not be used for the collection of private debts. Extradition of a citizen from his/her home state to a foreign state against his/her will is a most serious matter and cannot be done to disguise collecting a civil debt.
An extradition treaty between two countries imposes mutual obligations on both countries to extradite persons whom the authorities of the requesting party have charged with or found guilty of an extraditable offense[v]. A foreign conviction entered after a trial at which the defendant was present suffices to establish probable cause for extradition. The extradition court need not make an independent assessment of the facts surrounding the offenses. It can rely solely on a certified copy of the foreign conviction[vi].
The principles of international law recognize the right to extradition only through a treaty. To determine the nature and extent of the right, a court must look to the treaty which created it[vii]. The right of international extradition is solely the creature of the treaty. The conditions under which a fugitive is to be surrendered to a foreign country are to be determined solely by the non-judicial branches of the government[viii].
Similarly, while determining whether the offenses charged are extraditable treaty offenses, an extradition court must find that the treaty is in full force and effect and that the crimes charged come under the purview of the treaty[ix]. The role of the court in determining extraditability requires a limited evidentiary finding. It is required to evaluate whether there was any evidence warranting the finding that there was a reasonable ground to believe the accused guilty[x].
Generally, an act charged is considered criminal by both parties. It is not necessary that the name of the crime is the same in either countries or that the scope of liability must be coextensive. It was observed that some crimes were so universally condemned that the perpetrators were the enemies of all people. Therefore extradition is permissible for certain offenses such as war crimes, committed outside of the demanding nation[xi].
However, political offenses are not recognized as extraditable offenses. The political offense exception to extradition generally prevents a person from being extradited to face prosecution for crimes committed in furtherance of a political uprising, movement, or rebellion in the country in which such occurrences took place[xii].
[i] Commonwealth v. Hare, 36 Pa. Super. 125 (Pa. Super. Ct. 1908).
[ii] State ex rel. Brown v. Stewart, 60 Wis. 587 (Wis. 1884).
[iii] White v. Marshall, 11 Ohio Dec. 779 (Ohio C.P. 1901).
[iv] State v. Hudson , 2 Ohio Dec. 15 (Ohio C.P. 1893).
[v] Haxhiaj v. Hackman, 528 F.3d 282 (4th Cir. Va. 2008).
[vii] Factor v. Laubenheimer, 290 U.S. 276 (U.S. 1933).
[viii] Gallina v. Fraser, 278 F.2d 77 (2d Cir. Conn. 1960).
[ix] In re Extradition of Lin, 915 F. Supp. 206 (D. Guam 1995).
[xi] 18 USCS § 3184.
[xii] Koskotas v. Roche, 931 F.2d 169 (1st Cir. Mass. 1991).