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Article IV, Section 2, Clause 2 — Interstate Extradition

Article IV, Section 2, Clause 2

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.

ArtIV.S2.C2.1 Overview of Extradition (Interstate Rendition) Clause

The Extradition Clause,1 which is also referred to as the Interstate Rendition Clause,2 applies to a person accused of a crime in one state who flees to another state. The Extradition Clause “preclude[s] any state from becoming a sanctuary for fugitives from justice” and “enable[s] each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed.”3 To fulfill those ends, the Extradition Clause contemplates that the Governor of the state from which the accused has fled (the demanding state) may seek his return from the state to which the accused has fled (the asylum state). Interstate rendition was “intended to be a summary and mandatory executive proceeding derived from” the Extradition Clause.4 The Extradition Clause is nearly unchanged in substance from the analogous provision in the Articles of Confederation5 and was approved unanimously at the Constitutional Convention with little debate.6

The Extradition Clause is not self-executing, and the Constitution provides Congress no express grant of power to implement it. Yet the Second Congress passed a law, the current iteration of which is known as the Extradition Act, requiring the governor of each state to deliver up fugitives from justice found in their state, upon lawful demand from another state.7 The Supreme Court accepted this “contemporaneous construction” as establishing the constitutional validity of the legislation.8 In Kentucky v. Dennison,9 however, the Court held that this statute was merely “declaratory” of a moral duty of state and that the federal government “has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it.”10 Because of Dennison, a federal court could not issue a writ of mandamus to compel the Governor of one state to surrender a fugitive to another state.11 Long considered a constitutional derelict, Dennison was finally formally overruled by the Court in 1987.12

Currently, states and territories may invoke the power of federal courts to enforce the Extradition Act against asylum state officers, including seeking equitable relief to compel performance of federally imposed duties.13 The duty of one state to surrender a fugitive to another is not absolute and unqualified, however—if the fugitive is imprisoned in the asylum state, for example, the asylum state may satisfy its own laws before returning the fugitive to the demanding state.14

Notes
  1. See, e.g., Pierce v. Creecy, 210 U.S. 387, 393 (1908); Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 379 (1978). ↩
  2. See, e.g., Pollack v. Duff, 793 F.3d 34, 44 (D.C. Cir. 2015). ↩
  3. Michigan v. Doran, 439 U.S. 282, 287 (1978). ↩
  4. Id. at 288 (citing Biddinger v. Comm’r of Police, 245 U.S. 128, 132 (1917)). ↩
  5. ARTICLES OF CONFEDERATION OF 1781, art. IV, para. 2, (“If any Person guilty of, or charged with, treason, felony, or other high misdemeanor in any state, shall flee from Justice, and be found in any of the united states, he shall upon demand of the Governor or executive power of the state from which he fled, be delivered up, and removed to the state having jurisdiction of his offence.”). ↩
  6. See 2 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 443 (Max Farrand ed., 1911). The Convention replaced the term “high misdemeanor” with “other Crime” because “high misdemeanor” (which was used in the Articles of Confederation’s version) had a technical meaning thought to be “too limited.” Id. ↩
  7. 1 Stat. 302 (1793). The current interstate Extradition Act is codified at 18 U.S.C. § 3182. The Act requires rendition of fugitives at the request of a demanding territory, as well as of a state, thus extending beyond the terms of the Extradition Clause. In New York ex rel Kopel v. Bingham, 211 U.S. 468 (1909), the Court held that this legislative extension was permissible. See Puerto Rico v. Branstad, 483 U.S. 219, 229–30 (1987). ↩
  8. Roberts v. Reilly, 116 U.S. 80, 94 (1885); see also Innes v. Tobin, 240 U.S. 127 (1916). As Justice Story wrote in Prigg v. Pennsylvania: “[T]he natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution . . . . [I]t has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby.” 41 U.S. (16 Pet.) 539, 616, 619–20 (1842). ↩
  9. 65 U.S. (24 How.) 66 (1861). Cf. Prigg, 41 U.S. (16 Pet.) at 612. ↩
  10. Dennison, 65 U.S. (24 How.) at 107. ↩
  11. Id. at 109–10. In 1934, Congress plugged the loophole created by Dennison by making it a federal crime for any person to flee from one state to another to avoid prosecution in certain cases. 48 Stat. 782 (1934); 18 U.S.C. § 1073. ↩
  12. Puerto Rico v. Branstad, 483 U.S. 219, 230 (1987) (“Kentucky v. Dennison is the product of another time. The conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development.”); accord New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 155 (1998). ↩
  13. Branstad, 483 U.S. at 230. ↩
  14. Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371 (1873). ↩

ArtIV.S2.C2.2 Meaning of Fugitive from Justice

Although a person must be charged with a crime to be a fugitive from justice under the Extradition Clause, the Extradition Clause does not require the state demanding extradition (the “demanding state”) to have charged the fugitive before he left the state. Instead, the Extradition Clause only requires the accused to be located in a state different from the one in which he is charged.1 Moreover, the accused may have left the state for reasons other than avoiding justice because the reason the accused departed is immaterial.2

A demanding state that has received a fugitive from another state may be required to surrender him to a third state upon an extradition warrant.3 A person indicted a second time for the same offense is still considered a fugitive under the Extradition Clause, even if, after dismissal of the first indictment, he left the demanding state with the knowledge of and without objection by state authorities.4 But a defendant cannot be extradited if he was only constructively present in the demanding state when the crime with which he is charged was alleged to have been committed.5

The words “treason, felony or other crime,” as used in the Extradition Clause, embrace every criminal offense forbidden and made punishable by state law,6 including misdemeanors.7

Notes
  1. Roberts v. Reilly, 116 U.S. 80, 95 (1885); see also Strassheim v. Daily, 221 U.S. 280 (1911); Appleyard v. Massachusetts, 203 U.S. 222 (1906); Ex parte Reggel, 114 U.S. 642, 650 (1885). ↩
  2. Drew v. Thaw, 235 U.S. 432, 439 (1914). ↩
  3. Innes v. Tobin, 240 U.S. 127 (1916). ↩
  4. Bassing v. Cady, 208 U.S. 386 (1908). ↩
  5. Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). ↩
  6. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 103 (1861). ↩
  7. Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 375 (1873). ↩

ArtIV.S2.C2.3 Extradition (Interstate Rendition) Procedures

A person must be charged with a crime in the regular course of judicial proceedings before the state’s Governor may demand his return from another state.1 The accused has no constitutional right to a hearing before the Governor of the asylum state (the state where the fugitive is located) on whether he has been substantially charged with a crime and is a fugitive from justice.2 Nor may courts inquire into the motives of the Governors of the demanding and surrendering states.3

The asylum state’s courts cannot use habeas corpus to refuse to surrender the accused based on speculations about the accused’s trial in the demanding state.4 Likewise the asylum state’s courts cannot hear the accused’s arguments that the statute of limitations has expired,5 or that confinement in the demanding state’s prison would constitute cruel and unjust punishment,6 although the accused may make such arguments in the demanding state’s courts. An accused will, however, be discharged on habeas corpus if he shows by clear and satisfactory evidence that he was outside the demanding state when the crime occurred.7 If, however, the evidence is conflicting, habeas corpus is not the proper proceeding to try the question of alibi.8

The role of habeas corpus in interstate rendition cases is, therefore, very limited.9 Once the asylum state’s governor grants extradition, a court considering releasing the accused on habeas grounds can only decide: “(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.”10

Nothing in the Constitution exempts an offender from trial and punishment following extradition, even though he was brought from another state by unlawful violence,11 or by abuse of legal process.12 A fugitive lawfully extradited from another state may be tried for an offense other than that for which he was surrendered.13 The rule is different, however, for fugitives surrendered by a foreign government, pursuant to treaty. In that case, the fugitive may only be tried “for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.”14

Notes
  1. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 104 (1861); Pierce v. Creecy, 210 U.S. 387 (1908); see also In re of Strauss, 197 U.S. 324, 325 (1905); Marbles v. Creecy, 215 U.S. 63 (1909); Strassheim v. Daily, 221 U.S. 280 (1911). ↩
  2. Munsey v. Clough, 196 U.S. 364, 372 (1905); Pettibone v. Nichols, 203 U.S. 192 (1906). ↩
  3. Pettibone, 203 U.S. at 203. ↩
  4. Drew v. Thaw, 235 U.S. 432, 440 (1914). ↩
  5. Biddinger v. Commissioner of Police, 245 U.S. 128, 135 (1917); see also Rodman v. Pothier, 264 U.S. 399 (1924). ↩
  6. Sweeney v. Woodall, 344 U.S. 86, 89–90 (1952). ↩
  7. Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903); see also South Carolina v. Bailey, 289 U.S. 412 (1933). ↩
  8. Munsey v. Clough, 196 U.S. 364, 375 (1905). ↩
  9. Michigan v. Doran, 439 U.S. 282, 289 (1978). In California v. Superior Court, 482 U.S. 400, 407 (1987), the Court reiterated that extradition is a “summary procedure.” ↩
  10. Doran, 439 U.S. at 289. ↩
  11. Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707, 712, 714 (1888). ↩
  12. Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v. Nichols, 203 U.S. 192, 215 (1906). ↩
  13. Lascelles v. Georgia, 148 U.S. 537, 543 (1893). ↩
  14. United States v. Rauscher, 119 U.S. 407, 430 (1886). ↩