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Extradition Between States: Law and Process

Fleeing from one state to another doesn't necessarily mean that a criminal will evade punishment if caught. States and the federal government can seek to bring state-hopping criminals to justice through a process called extradition. Extradition laws give a state the ability to hand someone over to another state for purposes of criminal trial or punishment.

Extradition can occur between two states or between two countries. Both operate under similar principles, but the processes and procedures are different. This article focuses on extradition between states and will cover its legal basis, the applicable process, and what defenses may be available to prevent extradition.

Extradition Between States: Legal Basis

Within the United States, federal law governs extradition from one state to another. The Extradition Clause of the U.S. Constitution (Article IV Section 2) requires that:

A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

In addition to the Constitution, federal law (18 U.S.C § 3182) provides requirements for extradition. Requirements and guidelines can also be found in the Uniform Criminal Extradition Act (UCEA). The UCEA is not mandatory and not all states have adopted it. States that haven't adopted the UCEA have their own extradition laws that comply with the federal statute.

Extradition Between States: Process

Whether or not a state has adopted the UCEA, the extradition process will be similar. The process begins when there's probable cause to issue an out-of-state arrest warrant. Typically this occurs when a person fails to show up for a court date or if there's reason to believe the person has fled.

When the out of state warrant is issued, the information is entered into the National Crime Information Center (NCIC), a nationwide database that law enforcement uses to access warrant information in other states. If the person sought is arrested in the new state, the arresting authorities will notify the first state that issued the warrant. For instance, if a crime is committed in California, and the person flees to New York, the New York police will be able to see the California arrest warrant and will notify California of an arrest in New York.

The original state may make a request for the return of the fugitive, but they don't always do so. If the crime is a misdemeanor or something other than a violent felony, there may be no request for return. However, if such a request is made, the fugitive has the option of waiving extradition or attempting to fight extradition through a writ of habeas corpus.

If the fugitive refuses to waive extradition, the original state prepares a request to have the fugitive returned. Extradition requests are made from the office of one state's governor to the other. If the request is approved by both governors, an extradition hearing will be held and a court in the state with the fugitive will make a decision to grant or deny extradition.

States, in deciding whether to extradite, generally may not delve into the underlying charge behind an extradition request. However, the U.S. Constitution (Sixth Amendment) requires the accused "be informed of the nature and cause of the accusation." This means that states will inform the fugitive of:

  1. the extradition request;
  2. the underlying criminal charge; and
  3. the individual's right to seek legal counsel.

Once the request for extradition has been granted, the fugitive will be offered to the demanding state. The fugitive can still fight extradition by filing a writ of a habeas corpus. If the habeas corpus petition is denied, the original state will make arrangements to transport them back to the demanding state. If the habeas corpus petition is granted, the fugitive will be released.

Extradition Between States: Defenses

There aren't many defenses to extradition. As long as the process and procedure found in the U.S. Constitution and federal law have been followed, the fugitive must be surrendered to the demanding state. However, there are a few defenses that have been identified by the Supreme Court, such as:

  1. whether the extradition request documents are in order;
  2. whether the person has been charged with a crime in the demanding state;
  3. whether the person named in the extradition request is the person charged with the crime; and
  4. whether the petitioner is, in fact, a fugitive from the requesting state.

If the fugitive's petition or writ for habeas corpus is unsuccessful, the arresting state must hold them for the demanding state. The demanding state then has 30 days to retrieve the fugitive. If they don't, the arresting state may release them.

More Questions About Extradition Between States? Get Answers From an Attorney

There are several precise requirements that must be followed to extradite a criminal defendant between states. The process can be scary and confusing, but you don't have to go through it alone. Contact a criminal defense attorney near you who can help protect your rights and ensure the best possible defenses to extradition and the underlying criminal charges you may be facing.

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