Extradition is the legal process by which a person is transferred from one place to another without the person’s consent. This is a legal method to prevent people from evading justice. When a person commits a crime in a state and then goes to a different one, the person can be sent back to face charges in the state where the crime was committed. Generally, a country’s power to arrest a fugitive only extends within its borders. If there is no provision for extradition, people can evade justice by moving from one place to another.
International extradition is the formal process by which a person found in one country is surrendered to another country for trial or punishment. The process is regulated by treaty and conducted between the federal government of the U.S. and the government of a foreign country. Extradition is not a judicial function[i]. It is an executive function under the U.S. President’s power to conduct foreign affairs[ii]. The Extradition Clause of the U.S. government only applies to interstate extradition. International extradition can only be based on international comity or extradition treaties between nations.
When a criminal tries to evade justice by escaping to another nation, the nation from where the person escapes justice can make a request to the nation where the fugitive escaped. Extradition treaties are signed between nations with the intention to transfer criminals from a requested country to a requesting country. However, this transfer of criminals can only be done by keeping in mind the territorial sovereignty of other nations.
An extradition treaty between the U.S. and any other nation shows that the executive and legislative branches of the U.S. government consider that nation’s justice system fair enough to send an accused person there for trial.
When a person is expelled from a country as an undesirable alien it would not come under extradition. People getting into the U.S. without proper documentation would also not come under international extradition.
International extradition is allowed by nations only after imposing conditions to the process. When an extradition treaty is formed, the parties to the treaty provide the offenses for which an individual can be extradited. The legislative policies of one country can be imposed upon another country through the conditions set in the treaty. However, the treaty should be signed by all the party nations for imposing the legislative policies.
Generally, the federal government of the U.S. deals with matters regarding foreign relations. Therefore, all international extradition matters are negotiated by the executive branch of federal government. The U.S. Secretary of State has the power to decline to surrender a suspect for extradition on any number of discretionary grounds, including humanitarian and foreign policy considerations. The Secretary of State can also attach conditions to a suspect’s surrender. However, even if the executive branch is in favor of the foreign nation’s request, extradition requests can be turned down by the judicial branch. The judiciary can dismiss an extradition request if the charges the foreign government leveled against the captive are not crimes in the U.S. The judicial branch can also dismiss an extradition request if the captive has a reasonable fear of facing cruel and unusual punishment if s/he was extradited, or if the captive had a reasonable fear that s/he would not face a fair trial.
A nation cannot surrender a fugitive to another nation or demand return of an offender from the nation if it is against the constitution of the nation[iii]. If there is no valid treaty between the nations, international law does not require surrender of a fugitive to a foreign nation. When a nation requests the surrender of a fugitive, the nation should make a proper written request that should be forwarded through diplomatic channels to the justice ministry or other appropriate agency. There should be warrants, sentences, and all relevant evidence attached along with the request.
Nations create laws on extradition based on the treaty of extradition with the foreign government. However, the statute on extradition in a country is valid only during the existence of a treaty of extradition. In certain cases, international comity can be exercised to surrender persons, who are not citizens, nationals, or permanent residents of the U.S., and who have committed crimes of violence against nationals of the U.S. in foreign countries. Such surrenders are permitted even without the existence of any treaty of extradition with such foreign government[iv]. This is permitted only when the Attorney General certifies that evidence from a foreign government shows that if the offenses were committed in the U.S. they would constitute a crime, and that the offenses are not of a political nature. The Secretary of State can also exercise discretion in surrendering captives even if there is no treaty between nations. The Secretary of State can grant discretion if all the other requirements of extradition treaties are met. However, federal authorities have power to surrender a U.S. citizen to a foreign government, whose extradition is sought in the absence of a treaty authorizing extradition, only if a federal statute allows it. Even when an extradition treaty is present, international comity can be exercised.
An extradition treaty is self-executing and a criminal can be arrested under the terms of the treaty alone. The statutes enacted by the legislatures are not necessary to implement a treaty. The treaty can be considered as binding as a statute. Treaties are made for the benefit of the party nations. Therefore, only a foreign government has standing to assert a flaw in extradition proceedings.
International extradition treaties have a continuing effect. The treaties will be valid even if it was signed by a former sovereign of a nation, or if it was ratified by two nations before they declared war on each other. In some cases, countries can also continue with the treaty obligations made when they were colonies. Extradition treaties can be replaced by new treaties. Generally, old treaties cover only offenses prior to its termination. However, this is only applicable when there is no clause to the contrary[v].
Extradition treaties are binding on federal and state courts. Treaties can be given the force of federal statutes even where there is no implementing statute. This is because the U.S. constitution considers treaties as law of the land[vi].
[i] Pajkanovic v. United States, 353 Fed. Appx. 183 (11th Cir. Fla. 2009).
[ii] Murphy v. United States, 1998 U.S. Dist. LEXIS 22642 (N.D.N.Y Nov. 30, 1998).
[iii] Pettibone v. Nichols, 203 U.S. 192 (U.S. 1906).
[iv] Cadle v. Cauthron, 266 Ark. 419 (Ark. 1979).
[v] Markham v. Pitchess, 605 F.2d 436 (9th Cir. Cal. 1979).
[vi] American Express Co. v. United States, 4 Ct. Cust. 146 (Ct. Cust. App. 1913).