Individual who may be Subject to Extradition

A federal court has the power to enforce the constitutional authority to extradite a fugitive.  A person is a fugitive when s/he commits a crime in the demanding state, subsequently leaves the demanding state, and thereafter resides in the asylum state[i].  The U.S. constitution imposes on the governor of each state a duty to surrender any fugitive from the justice of another state to that state upon proper request.  It is to be noted that a party remains a fugitive until the charges filed against him/her in the state from which s/he fled are dropped[ii].

Generally in an extradition, factors such as mission, motive, or purpose inducing a person accused of being a fugitive from justice to leave the demanding state are considered immaterial.  Similarly, an alleged offender’s status as a fugitive from justice is not affected by the fact that s/he has been brought into the asylum state involuntarily or unlawfully.  However, the actual presence of a person in a state at the time of commission of a crime is necessary to make him/her a fugitive from justice when found in another state and to render him/her subject to extradition under the federal statute[iii].

An extradition treaty between the U.S. and another country will not prohibit abductions outside of its terms.  A criminal defendant, who was abducted from a foreign nation to the U.S. and the foreign nation is one with which the U.S. has an extradition treaty, will not acquire a defense to the jurisdiction of the courts within the U.S.[iv] Therefore, a district court has jurisdiction to try a foreign national who was forcibly kidnapped and brought to the U.S. to stand trial for violations of criminal laws of the U.S.

It is to be noted that although the terms of an extradition treaty can limit the ability of a court to prosecute a person who returned to the U.S. by virtue of the treaty in certain circumstances, an extradition treaty cannot divest courts of jurisdiction over a person who was abducted from another country where the terms of the extradition treaty do not prohibit such forcible abduction[v].  However, in the absence of an extradition treaty, there is no obligation to surrender persons in a country to foreign authorities for prosecution.

Moreover, if an accused can establish that s/he was not physically present in the demanding state when the offense was committed, then s/he is not a fugitive from justice and he/she can secure his/her release by writ of habeas corpus[vi].

A person who leaves the state of his/her residence and commits a crime in another state and returns to his/her home state is also considered a fugitive from justice as though s/he had committed the crime in the state of his/her residence and fled to a sister state.  Likewise, a person charged in any state with treason, felony, or other crime who flee from justice and is found in another state will be delivered upon the demand of the executive authority of the state from which s/he fled[vii].

However, a person is subject to extradition as a fugitive from justice even though the alleged crime was not concluded before leaving the state.   The motive or purpose of the person while leaving is immaterial[viii].  The only thing required to convert a criminal into a fugitive from justice is that the accused left the state after having incurred guilt there.

It is to be noted that an escaped convict is subject to extradition.  Similarly, a person who has violated his/her terms of parole is also subject to extradition[ix].  However, extradition is not required under the constitution or laws for the return of a minor escapee or runaway to the custody of his/her guardian, even though it’s from one state to another[x].  A country has no right to refuse extradition of its citizens to foreign countries within the terms of treaty stipulations.

[i] Fullerton v. McCord, 339 Ark. 45 (Ark. 1999).

[ii] Gay, 406 Mass. 471 (Mass. 1990).

[iii] Munsey v. Clough, 196 U.S. 364 (U.S. 1905).

[iv] Mir Aimal Kasi v. Angelone, 300 F.3d 487 (4th Cir. Va. 2002).

[v] Id.

[vi] Papas v. Brown, 88 Ill. App. 3d 471 (Ill. App. Ct. 2d Dist. 1980).

[vii] McFarlin v. Shirley, 209 Ga. 794 (Ga. 1953).

[viii] State ex rel. Shapiro v. Wall, 187 Minn. 246 (Minn. 1932).

[ix] In re Application of Murdock, 5 Cal. 2d 644 (Cal. 1936).

[x] People v. Lingle, 122 Ill. App. 2d 87 (Ill. App. Ct. 2d Dist. 1970).


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