Judicial Review After Warrant

Generally, the scope of judicial review in extradition cases is restricted.  Judicial review in extradition cases is an independent review function delegated to a court by the executive and is provided by a statute.  While reviewing an extradition order, courts will only look into whether the governor has exceeded the authority vested in him/her.  If an extradition warrant contains all the factors required and is found proper, then no review is necessary.  Under certain statutes, the courts of an asylum state may not determine the guilt or innocence of the party sought to be extradited[i].

A court of an asylum state will order extradition upon considering certain factors.  They are: whether a fugitive is charged with a crime in the demanding state, whether an accused person is a fugitive from the demanding state, whether the fugitive was present in the demanding state at the time of the commission of the crime;, and whether the requisition papers are in order.  All of these factors must be present to order extradition[ii].  A review may be possible if there is absence of any of the preceding factors.  An extradition warrant issued by a governor is void if it does not recite that s/he had before her/him an indictment charging an accused with a crime in the demanding state[iii].  The burden is on the accused to prove that an extradition order is illegal.

The identity of a fugitive may be proven with the help of photographs, witnesses from the demanding state, affidavits filed before the court by witnesses, admission of the fugitive, and finger prints.

A fugitive has certain rights under The Uniform Criminal Extradition Act and The Uniform Extradition and Rendition Act.  A fugitive is to be produced before a judge after being arrested on an extradition warrant.  S/he may be informed about the charges against him/her and s/he has the right to demand and procure legal counsel within reasonable time.  A judge shall grant an accused fugitive reasonable time to apply for a writ of habeas corpus, if s/he or his/her counsel wants to challenge the legality of his/her arrest[iv].  An arrested fugitive is entitled to court-appointed counsel if s/he is an indigent person[v].

A fugitive may or may not waive the rights available under the statutes.  A valid waiver may be made in the presence of an attorney[vi].  Certain jurisdictions have considered a person’s insanity for staying an extradition proceeding as s/he would be unable to conduct or assist the extradition proceedings properly, but there are jurisdictions that hold the contrary view[vii].

In international extraditions, the scope of habeas corpus review of a magistrate’s order is limited to determining whether the magistrate had jurisdiction, whether the offense charged is within the treaty, and whether there was any evidence to believe that an accused is guilty[viii].  If all these factors are properly found, an extradition order will be affirmed[ix].  A habeas corpus proceeding may be initiated by a fugitive.  The  secretary of state has more discretionary power in the case of international extraditions.  A fugitive who fears torture in the demanding state may move for a review under the Administrative Procedure Act.

Whether an accused is a political offender may be looked into and also whether s/he will be prejudiced on the basis of race or nationality also will be considered in a review.  Bail should be granted in extradition cases only in special circumstances[x].

[i] In re Ripepi, 427 Pa. 507 (Pa. 1967).

[ii] Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133 (Pa. 1967).

[iii] Ex parte Hagan, 295 Mo. 435, 1922 Mo. LEXIS 124.

[iv] People ex rel. Harris v. Ogilvie, 35 Ill. 2d 512, 1966 Ill. LEXIS 343.

[v] Mora v. District Court of First Judicial Dist., 177 Colo. 381, 1972 Colo. LEXIS 930.

[vi] People v. Osbourne, 2006 N.Y. Misc. LEXIS 3025.

[vii] Gagan v. Gately, 673 F. Supp. 1029 (D. Colo. 1987).

[viii] Smith v. United States, 82 F.3d 964, 1996 U.S. App. LEXIS 9989.

[ix] Polo v. Horgan, 828 F. Supp. 961, 1993 U.S. Dist. LEXIS 10486.

[x] In re Extradition of Heilbronn, 773 F. Supp. 1576, 1991 U.S. Dist. LEXIS 19450.


Inside Judicial Review After Warrant