In extradition proceedings, it is the mandatory duty of the governor of a state to surrender a person who is a fugitive from another state.  The governor as the executive head cannot question the constitutional responsibility entrusted upon him.  Thus, when a valid request comes from another state to extradite a person, the duty of the executive head is to take steps to extradite him/her.

A governor does not have discretionary power to inquire in to the nature of the crime committed by the fugitive and the guilt or innocence of the accused as to the crime of which s/he is charged.  The reason of prohibiting any inquiry into the guilt or innocence of an accused is to confine such inquiry to the demanding state which has jurisdiction of the crime charged against a fugitive[i].

The main factors taken into consideration by a court while deciding an extradition case are[ii]:

• whether extradition documents are in order;
• whether the petitioner is a fugitive;
• whether the petitioner is charged with a crime in the demanding state; and
• whether the petitioner is the person named in the extradition request.

The Uniform Criminal Extradition Act gives authority to a judge to commit a person to jail, who is considered a fugitive, up to 30 days so that s/he may be arrested on a governor’s extradition warrant[iii].  If the arrest of a person is not possible within 30 days, s/he may be recommitted for another period of 60 days, thus not exceeding a total period of 90 days.  This is to enable the issuance of the extradition warrant by the Governor.  If an extradition warrant is not produced before the expiry of 90 days, the jail sentence is to be lifted[iv].  A fugitive may or may not be heard before extending the period of detention[v].

A governor has to issue an extradition warrant upon accepting a valid extradition request.  The nature of the duty of evaluating extradition requests and issuing extradition warrants are judicial in nature and are immune from suits[vi].  In the case of extradition of a person who is considered a non fugitive, a governor has the discretion to consider the extradition request[vii].  An asylum state where a fugitive is present may consider only whether the extradition documents are valid before surrendering a fugitive[viii].

In the case of international extraditions, a federal court has jurisdiction over the extradition complaints if a treaty to extradite fugitives exists between the U.S. and the foreign country where the alleged crime was committed by the fugitive.  A fugitive of a foreign country has to be given an opportunity to be heard in the asylum country.  A court has to consider factors like whether a crime alleged to have been committed in the demanding country is included in the treaty.  A court has to check whether s/he is a fugitive.

An order of extradition is not subject to direct appeal.  A collateral review is possible through a writ of habeas corpus.  But the area of inquiry into an extradition order by the court while entertaining habeas corpus case is restricted.  Habeas corpus is available for inquiry into whether an offense charged is within the extradition treaty of the state and whether the magistrate had jurisdiction to entertain the case.  Also in certain cases a liberal treatment may be given by considering whether there is any evidence showing a reasonable ground to believe that the accused is guilty.[ix]

The duty of a governor may be enforced by a writ of mandamus from a federal court.  A governor has no power to refuse to extradite a fugitive considering the merits of a fugitive’s case.

[i] Commonwealth ex rel. Raucci v. Price, 409 Pa. 90 (Pa. 1962).

[ii] Boudreaux v. State, 1999 UT App 310, 1999 Utah App. LEXIS 132.

[iii] Garcia v. Cooper, 711 P.2d 1255, 1986 Colo. LEXIS 474.

[iv] Commonwealth ex rel. Jacobs v. Digiacinto, 321 Pa. Super. 536, 1983 Pa. Super. LEXIS 4452.

[v] Commonwealth ex rel. Quackenbush v. Fairchild, 291 Pa. Super. 358, 1981 Pa. Super. LEXIS 3530.

[vi] Rivera v. Algarin, 350 Fed. Appx. 703, 2009 U.S. App. LEXIS 19273.

[vii] Morris v. Nelson, 659 P.2d 1386, 1983 Colo. LEXIS 500.

[viii] Boudreaux v. State, 1999 UT App 310, 1999 Utah App. LEXIS 132.

[ix] Hooker v. Klein, 573 F.2d 1360 (9th Cir. Cal. 1978).