Extradition treaties and international law

Extradition comes into play when a person charged with a crime under state statutes flees the state. An individual charged with a federal crime may be moved from one state to another without any extradition procedures.

Article IV, Section 2, of the U.S. Constitution provides that upon the demand of the governor of the prosecuting state, a state to which a person charged with a crime has fled must remove the accused "to the State having Jurisdiction of the Crime." When extraditing an accused from one state to another, most states follow the procedures set forth in the Uniform Criminal Extradition Act, which has been adopted by most jurisdictions. A newer uniform act, the Uniform Extradition and Rendition Act, is designed to streamline the extradition process and provide additional protections for the person sought, but by 1995, it had been adopted by only one state.

Extradition from one state to another takes place on the order of the governor of the Asylum state (the state where the accused is located). The courts in the asylum state have a somewhat limited function in extraditing the accused to the state where she or he is charged with a crime. They determine only whether the extradition documents are in order (e.g., whether they allege that the accused has committed a crime and that she or he is a fugitive) and do not consider the merits of the charge, since the trial of the accused will take place in the state demanding extradition.

In some cases, courts considering extradition from one state to another may go beyond the procedural formalities and look at the merits of the criminal charge or at allegations by the accused that extradition will lead to harmful consequences beyond a prison term. These cases are rare because under the U.S. Constitution, states are not given the power to review the underlying charge. This problem occurred in New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 118 S. Ct. 1860, 141 L. Ed. 2d 131 (1998), in which the state of New Mexico refused to return a fugitive to the state of Ohio.

The Supreme Court has identified that a court considering an extradition case can only decide four issues: (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for the extradition, and (4) whether the petitioner is a fugitive. The New Mexico Supreme Court in Reed determined that the person subject to the extradition, Manuel Ortiz, was not a "fugitive," and refused to honor the extradition order from the state of Ohio. The Supreme Court found that New Mexico courts had overstepped their authority and ordered the New Mexico Supreme Court to return the fugitive.

Extradition from one nation to another is handled in a similar manner, with the head of one country demanding the return of a fugitive who is alleged to have committed a crime in that country. Extradition between nations is usually based on a treaty between the country where the accused is currently located and the country seeking to place him or her on trial for an alleged crime. The United States has entered into extradition treaties with most countries in Europe and Latin America, and with a few countries in Africa and Asia.

To determine whether an individual can be extradited pursuant to a treaty, the language of the particular treaty must be examined. Some treaties list all the offenses for which a person can be extradited; others provide a minimum standard of punishment that will render an offense extraditable. The extradition treaties of most countries fall into the second category, since treaties in the first category must be revised completely if an offense is added to the list.