By FindLaw Staff | Legally reviewed by Evan Fisher, Esq. | Last reviewed October 31, 2022
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Extradition is a cooperative effort to hand over a suspected or convicted criminal from one state or country to another. Extradition laws define the procedure for that hand over process.
Extradition can take place within the United States in a state-to-state extradition. However, this article focuses on the process of international extraditions.
Whether someone can be extradited depends on the laws of the countries involved. There are four essential questions that must be addressed before extradition can occur:
An extradition treaty is an agreement between two countries to extradite persons charged or found guilty of an extraditable offense. The United States has extradition treaties with more than 100 countries, as well as with the European Union.
Extraditable offenses are crimes that are punishable in both countries by at least one year of imprisonment. Extraditable offenses also include financial crimes involving tax evasion, custom duty evasion, and currency exchange offenses.
Extradition treaties often exclude the extradition of a national of the requested state. One famous example of this is Roman Polanski. He was convicted in the U.S. for raping a 13-year-old, but he fled to France before sentencing. Because Mr. Polanski is a French citizen, France refused to extradite him.
At least sometimes the U.S. can and will extradite its own citizens, depending on the circumstances and the country requesting extradition.
There are other scenarios where extradition may be refused. Courts in many nations refuse to extradite people who may face torture or the death penalty in the requesting nation. Most notably, the European Court of Human Rights has ruled that extradition in these circumstances would violate European law.
Famed serial killer Charles Ng fled to Canada after torturing, raping, and murdering at least 11 people in California. Ng contested his extradition back to the U.S. on the grounds that Canadian law had abolished the death penalty. Ultimately, he appealed his case to the highest court in the nation.
The Canadian Supreme Court delivered a divided ruling on the question, but in the end, Canada extradited Ng to California. Canada could have demanded that Ng not face the death penalty, but they extradited him without such an assurance.
That Canadian Supreme Court ruling was overturned in 2001. Canada no longer extradites fugitives to the U.S. or anywhere else if they might face the death penalty.
The federal extradition statutes 18 U.S.C. § 3181 define the extradition process. It requires action from both the judicial and executive branches of government, the court that ensures the extradition is compliant with the law and the Secretary of State who exercises diplomatic power on behalf of the U. S.
Extradite FROM the U.S.
The process of extradition from the U.S. (18 U.S.C. §3184) is well described in the case of Aguasvivas v Pompeo (2021). The Department of Justice receives a request for extradition from a foreign government. The Department sends a complaint to a magistrate judge in the jurisdiction where the person is thought to reside. The magistrate issues a warrant for the suspect's arrest.
Once the person is in custody, the magistrate will hold a limited hearing. Many constitutional and due process protections that would ordinarily apply in pretrial detention are not applicable in hearings involving fugitives.
The judge will determine whether the extradition request from the foreign government complies with U. S. treaty obligations with that government. The judge will also look at U. S. extradition laws. They will consider whether the evidence provided by the foreign nation is sufficient to sustain the criminal charges.
If the magistrate determines the requirements have been met, they will certify the extradition request and send it to the Secretary of State. It is ultimately up to the Secretary to decide whether or not to extradite.
The Secretary of State will review the magistrate's findings and conclusions. If the Secretary believes there was an error in the judge's finding of facts or conclusion, the Secretary can reverse the certification. The Secretary also has discretion to decide not to surrender the person to foreign authorities or choose to attach conditions to the surrender.
Extradite TO the U.S.
When the United States wants to request the extradition of a fugitive, a prosecutor must contact the Office of International Affairs within the Department of Justice. Before that, a criminal complaint must have first been filed in the court with jurisdiction over the offense. The complaint states the criminal charges and identifies the defendant. A warrant for the defendant's arrest might also be sought.
Once the prosecutor provides their case information to the Office of International Affairs, that office makes a preliminary determination on whether the person is extraditable by examining the treaty requirements and the facts of the case.
The Office of International Affairs then decides whether to ask law enforcement in the foreign nation to make an arrest. It submits that request and documents to the Secretary of State.
Every nation has its own legal protections and extradition procedures, so what happens next will vary. Foreign officials may consider the time and effort it would take to apprehend the fugitive, the cost of extradition, and any political or diplomatic concerns.
For example, Julian Assange, founder of WikiLeaks, created headlines by resisting extradition in a politically charged case. Assange gained notoriety in 2010 when his website published a series of leaks initiated by U.S. Army intelligence analyst Chelsea Manning. Among the stories leaked was a video of an airstrike in Baghdad.
Although he was sought by U. S. authorities, it was Sweden that initiated extradition of Assange. Sweden sought his extradition from the U.K. on charges of sexual misconduct. Assange argued in court that the Swedish extradition case was a pretext for an eventual handover to the Americans. He lost his case, jumped bail, and took refuge in the Ecuadorian embassy in London.
He was granted asylum by Ecuador on the grounds of political persecution. The Ecuadorian government refused to extradite him, believing he would be turned over to the U. S. After Sweden dropped its extradition request and Ecuador withdrew its protection, Assange was arrested by London police and imprisoned for jumping bail.
Once he was in British custody, the U. S. Department of Justice unsealed an indictment against him for violation of the Espionage Act. Some news organizations characterized this effort as an attack on the First Amendment. The British district court judge ruled against the American extradition request, but the U. S. has appealed. The appeal is still pending, and Assange awaits the decision in an English prison.
In countries with no extradition treaty with the U.S., it is still possible to bring a fugitive back to the U.S. The United States may try to negotiate with foreign officials, who might refuse the request.
A high-profile case of the U. S. seeking international extradition without success is that of Edward Snowden. A former computer intelligence consultant with the National Security Agency, Snowden disclosed the existence of several global surveillance programs. He faces criminal charges for theft and espionage in the United States.
He fled to Russia, which has no extradition treaty with the U. S. Despite the lack of treaty, Russia could choose to extradite Snowden any time it chooses, but so far it has declined to do so. In effect, Russia has chosen to shield Snowden him from prosecution.
Snowden's case illustrates how international extradition is frequently political and diplomatic in nature. There is no global enforcement mechanism that forces a country to extradite.
In rare cases, the U. S. has resorted to extraordinary rendition. Unlike extradition, which is overseen by a court, extraordinary rendition is the forcible removal of a person, usually a suspected terrorist, to another country with fewer human rights protections.
There are several complex requirements that must be followed with international extraditions. Extradition can be difficult to fight, but no case is a foregone conclusion and there are defenses that can be utilized. Contact an experienced criminal defense attorney.
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