Formal extradition proceedings can be waived by a fugitive. A fugitive can directly appear before a demanding state without submitting himself/herself to an extradition proceeding or resist an extradition proceeding by an agreement.
According to the Uniform Criminal Extradition Act (Act), a fugitive can waive an extradition proceeding if s/she satisfies the following conditions:
- by executing an agreement before a court of record judge within the asylum state; and
- by incorporating a fugitive’s consent to return to a demanding state in an executed agreement.
Before executing an agreement, a fugitive must be informed by a judge about his/her rights in an extradition proceeding[i]. S/he must also be informed about the right to file a writ of habeas corpus[ii].
The written consent of a fugitive who successfully executes an agreement will be forwarded to the asylum state’s governor. Thereafter, a fugitive, along with the copy of the consent, will be delivered to the demanding state’s accredited agent.
According to the Act, a fugitive can waive his/her right to require a judicial hearing and can consent to return to a demanding state by executing a waiver before a judge. However such waiver should be explicit and voluntary. Any compulsion to waive a right of extradition hearing does not violate a fugitive’s due process rights[iii].
Irregularities involved in exercise of right of waiver will not affect a state court’s jurisdiction to try a fugitive who has surrendered.
The pre-release waiver of a right in extradition proceeding by a prisoner who was released on parole can be used to bring back such person to a paroling state[iv]. However a demanding state must inform a parolee about the consequences involved in a waiver. S/he must also be informed that there are other formal procedures to satisfy his/her return[v]. The pre- release waiver of rights is considered non coercive. Any allegation of coercion in waiving the right must be proved by the parolee.
[i] Quiver v. State, 339 N.W.2d 303 (S.D. 1983).
[ii] In re Albright, 129 Cal. App. 3d 504 (Cal. App. 1st Dist. 1982).
[iii] People ex rel. Millet v. Babb, 1 Ill. 2d 191 (Ill. 1953).
[iv] State v. Arundell, 278 N.J. Super. 202 (Law Div. 1994).
[v] United States ex rel. McInery v. Shelley, 524 F. Supp. 499 (N.D. Ill. 1981).