When a person in California
- allegedly commits a crime,
- escapes imprisonment, or
- violates his/her bail conditions, probation or
...and subsequently leaves the state...the California Governor must decide whether to extradite that individual. "Extradition" refers to the legal process of transporting suspected or convicted criminals from one state to another.
Many times the individual...known as a "fugitive from justice"...flees California in order to avoid being charged with or sentenced for a crime. And yet other times, an individual will travel or move to another state unaware that there are criminal charges pending or that he/she has done anything wrong.
Under either scenario, California's extradition laws allow the Governor to bring this person back to California to
- stand trial,
- face sentencing,
- return to confinement, or
- be heard and potentially sentenced on his/her probation / parole violation.
And, unfortunately, before the extradition process is complete...which, on average, can take anywhere from one to three months...the fugitive is assumed guilty until proven innocent, as he/she is typically held in jail until the matter is resolved.
There are a number of legal defenses and strategies that a skilled California criminal defense lawyer can employ to challenge the extradition process. Your attorney may be able to
- contest the validity of the extradition application and supporting documentation,
- claim that you are not the person named in the extradition warrant,
- work directly with the prosecutor to agree on a way for you to appear in California voluntarily rather than in police custody, and/or
- negotiate a deal with the prosecutor where you resolve the matter without having to travel to California.
In this article, our California criminal defense attorneys1 will provide a comprehensive guide to understanding California's extradition process by addressing the following topics:
Extradition is the legal process of transporting a suspected or convicted criminal...known as a "fugitive from justice"...to another state or nation so that he/she may stand trial or face sentencing. The state requesting the alleged criminal is known as the "home state" or "demanding state." The state where the alleged criminal is located is known as the "asylum state."
Many people who have been charged with a crime...or who know that they are going to be charged with a crime...seek refuge in another state in order to avoid prosecution.
But as Santa Ana criminal defense attorney John Murray2 explains, "There are other people who travel or move completely unaware that they are "wanted" and considered fugitives of justice. These individuals don't even find out that they have an extradition warrant until they are cited for a traffic violation or arrested for a minor offense."
Rest assured, in either case, we can help.
California's extradition laws deal with two types of extradition:
- extradition where California is the asylum state because the offense was allegedly committed in another state yet the accused is discovered here (discussed in detail in our article on Extradition from California, and
- extradition where California is the demanding state because the crime was allegedly committed here yet the accused is discovered in another state.
It is the second type of California extradition upon which this article will focus.
The Uniform Criminal Extradition Act (UCEA) is an agreement between 47 of the 50 states (South Carolina, Louisiana and Mississippi are the exceptions) that regulates interstate extradition.
California has adopted this act, and it is codified in California's Penal Code sections 1548-1558 PC.3 These laws that are relevant when California is the demanding state are explained in Section 2. California's Extradition Process.
This act is more specific than the federal laws that regulate extradition and outlines distinct protocols and procedures that must be adhered to before alleged fugitives will be detained and transferred.
The federal law that regulates extradition is found in the United States Constitution4 and in the U.S. Code.5 This law is broader in scope than the UCEA. When there is a discrepancy between the UCEA and the Federal Act, federal law controls.
Simply put, federal law states that when the demanding state wishes to extradite a fugitive from the asylum state, it must deliver an indictment or affidavit charging the alleged fugitive with a crime. The asylum state must then arrest the named individual and keep him/her for up to 30 days until an agent from the demanding state comes to claim him/her. If no agent comes, the asylum state will release the prisoner.
The UCEA addresses these same steps...it just sets forth specific procedures for doing so.
The first point to understand is that extradition is not mandatory. There is nothing in the Constitution or in California law that requires extradition...it is a decision that is wholly within the demanding state's discretion. And because extradition is a lengthy and costly process,6 it is not sought in every case.
In order to determine whether or not to extradite a fugitive from justice back to California, there are a number of factors that the government must consider. The factors include (but are not necessarily limited to):
- the circumstances, nature and severity of the alleged offense,
- the fugitive's criminal history, and
- whether there is still sufficient evidence to secure a conviction (for example, has so much time passed since the alleged offense that witnesses may be unavailable or that physical evidence may have been destroyed?).
Essentially, it comes down to this: Is it worth the state's time, money and resources to extradite the fugitive?
An experienced California criminal defense lawyer can immediately begin negotiating with prosecutors to help dissuade them from moving forward with your extradition. A local attorney can call on his/her established relationships with law enforcement, prosecutors and judges to convince these players to allow you to resolve the pending matter voluntarily rather than being transported here in jail custody.
Perhaps your lawyer can negotiate for reduced bail or for an O.R. release so that you may return to California...maybe your lawyer can enter a plea in your absence...perhaps your attorney can buy you some extra time to try to resolve the matter on your own...
But if the government still decides to proceed with the extradition, there are specific steps it must follow in order to do so, beginning with the application to extradite.
There are three types of application for extradition:
- one that seeks the return of a fugitive who has been charged with a crime,
- one that seeks the return of a fugitive who has either escaped confinement or violated the terms of his/her bail, probation or parole, and
- one that seeks the return of a mentally-ill fugitive.
When a California prosecutor wishes to extradite a person who has been charged with a crime in this state, he/she submits a requisition application to the Governor. This application must contain
- the name of the accused,
- the crime(s) charged,
- the approximate time, place and circumstances of the offense, and
- the state in which he/she is believed to be living / hiding.
The application must also state that the district attorney or other prosecutor believes that the "ends of justice" require the arrest and return of the accused to California for criminal trial and not simply to enforce a civil claim.7
And...on that note...it is important to understand that a civil lawsuit that arises out of the same facts as the criminal case...and is filed against the accused....will not be heard until after the criminal case has been resolved.8
However, once the accused has been extradited back to California, he/she may be tried for other crimes allegedly committed in this state as well as for the crime(s) specified in the requisition application.9
When the extradition is being sought for a fugitive who has already been convicted of a crime and who has either
- escaped imprisonment, or
- violated the terms of his/her
the district attorney of the county in which the offense was committed or the governing institution or sheriff's office from where the escape from confinement took place submits its requisition application to the Governor.
The application must contain all the same information as the application noted above in Section 2.1. except that instead of noting the charge(s) and circumstances of the alleged offense, this application must list
- the crime(s) of which the fugitive was convicted, and
- the circumstances of his/her escape or of the violation of the terms of his/her bail, probation or parole.10
The final requisition application deals with California mentally disordered offenders. (MDO, see attached) A mentally disordered or developmentally disabled individual who has been convicted of an offense and who has been placed on outpatient status must adhere to specific travel conditions.
If such an individual fails to comply with these conditions, he/she is subject to extradition.
When this is the case, the Director of Mental Health submits his/her requisition application to the Governor. This application must also state the same identifying information described above but must also state
- the type of judicial commitment the person is under,
- the nature of the underlying criminal act that was the basis for the judicial commitment, and
- the circumstances surrounding the failure to comply with California's travel conditions as they apply to mentally disabled offenders.11
Each of these applications...that is, (1) for a fugitive accused of a crime, (2) for a fugitive who has escaped or violated bail, probation or parole, or (3) a mentally-ill fugitive...must be accompanied by a variety of additional legal documentation and should be filed with the Secretary of State.
The Governor then makes the decision whether to sign the requisition for the fugitive's return to California.
When the California Governor determines that extradition is appropriate...and therefore demands that the accused who
- allegedly committed a crime in this state,
- escaped confinement in this state, or
- violated his/her probation or parole in this state
be returned to California...the Governor in the asylum state issues a warrant to ensure that the fugitive is arrested and held for a maximum of 30 days so that an agent that from California may receive the accused and to bring him/her to the proper county in which the offense was committed.12
On a side note, neither that agent...nor any other person...can collect any compensation, fee, profit or reward in connection with receiving, detaining or delivering the fugitive outside of his/her normal compensation. A violation of this clause subjects the individual to a misdemeanor, punishable by up to six months in jail and a maximum $1,000 fine.13
If the California Governor has ordered the extradition of a person who has been charged with a crime...but the individual is imprisoned or is being held on criminal charges in the asylum state...the California Governor may agree with the Governor of that state to extradite the accused before the conclusion of those criminal proceedings or the completion of his/her sentence on the condition that the individual be returned to the asylum state as soon as the prosecution in this state is completed.14
There are a few key California legal defenses that may help prevent you from being extradited.
If the requisition application and supporting legal documents are not in perfect compliance with California's extradition laws, this could serve as a defense to extradition. And even if the flaws in documentation aren't fatal, the fact that some or all of the paperwork may need to be resubmitted will further delay the extradition process.
And this type of delay could prove to be to your advantage if your attorney then has more time to try to gather evidence in support of your not being extradited.
If you have been wrongfully detained because you are not the person named in the warrant...perhaps you have the same name as the true culprit or your name was incorrectly placed on the warrant (maybe it's one letter off from the true culprit)...you should not have to face extradition.
When misidentification is the issue, our firm can help. As former police investigators and district attorneys, we have the inside knowledge and skills that are necessary to help resolve these misunderstandings so that you are released from custody and exonerated as quickly as possible...which leads to the next section...
If your attorney believes you are being wrongfully imprisoned...regardless of whether he/she believes you are not the person actually being sought in the extradition warrant or because of some other defense...he/she would file a writ of habeas corpus.
A writ of habeas corpus...literally translated to mean "you have the body"...essentially informs the court that you believe you have been illegally incarcerated and asks for an opportunity to present evidence to that effect.
But in the unfortunate event that you will nevertheless be extradited, you may want to secure legal representation in both the asylum state and the demanding state who can work together to try to minimize the length of this process by ensuring that everything is being done in both states as expeditiously as possible.
Call us for help...
If you or loved one is is in need of help with extradition into California and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about extradition in Nevada. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.15
1 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 Santa Ana criminal defense lawyer John Murray represents clients throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster, as well as in the South Bay (including Long Beach and Torrance).
3 See California Penal Code sections 1548-1558.
See also California Penal Code1556.1 PC - Construction to effect uniformity. ("The provisions of this chapter shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact legislation based upon the Uniform Criminal Extradition Act.")
See also Penal Code 1556.2 - Short title. ("This chapter may be cited as the Uniform Criminal Extradition Act.")
4 US Const art IV, §2(2). Extradition. ("The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. 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. No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.")
5 18 U.S. Code 3182 -- Fugitives from State or Territory to State, District, or Territory - Extradition. ("Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.")
6 California Penal Code 1557 PC - Expense of returning fugitives; audit and payment; advances for or reimbursements of expenses - Extradition into California. ("(a) This section shall apply when this state or a city, county, or city and county employs a person to travel to a foreign jurisdiction outside this state for the express purpose of returning a fugitive from justice to this state when the Governor of this state, in the exercise of the authority conferred by Section 2 of Article IV of the United States Constitution, or by the laws of this state, has demanded the surrender of the fugitive from the executive authority of any state of the United States, or of any foreign government. (b) Upon the approval of the Governor, the State Controller shall audit and pay out of the State Treasury as provided in subdivision (c) or (d) the accounts of the person employed to bring back the fugitive, including any money paid by that person for all of the following: (1) Money paid to the authorities of a sister state for statutory fees in connection with the detention and surrender of the fugitive. (2) Money paid to the authorities of the sister state for the subsistence of the fugitive while detained by the sister state without payment of which the authorities of the sister state refuse to surrender the fugitive. (3) Where it is necessary to present witnesses or evidence in the sister state, without which the sister state would not surrender the fugitive, the cost of producing the witnesses or evidence in the sister state. (4) Where the appearance of witnesses has been authorized in advance by the Governor, who may authorize the appearance in unusual cases where the interests of justice would be served, the cost of producing witnesses to appear in the sister state on behalf of the fugitive in opposition to his or her extradition. (c) No amount shall be paid out of the State Treasury to a city, county, or city and county except as follows: (1) When a warrant has been issued by any magistrate after the filing of a complaint or the finding of an indictment and its presentation to the court and filing by the clerk, and the person named therein as defendant is a fugitive from justice who has been found and arrested in any state of the United States or in any foreign government, the county auditor shall draw his or her warrant and the county treasurer shall pay to the person designated to return the fugitive, the amount of expenses estimated by the district attorney to be incurred in the return of the fugitive. (2) If the person designated to return the fugitive is a city officer, the city officer authorized to draw warrants on the city treasury shall draw his or her warrant and the city treasurer shall pay to that person the amount of expenses estimated by the district attorney to be incurred in the return of the fugitive. (3) The person designated to return the fugitive shall make no disbursements from any funds advanced without a receipt being obtained therefor showing the amount, the purpose for which the sum is expended, the place, the date, and to whom paid. (4) A receipt obtained pursuant to paragraph (3) shall be filed by the person designated to return the fugitive with the county auditor or appropriate city officer or State Controller, as the case may be, together with an affidavit by the person that the expenditures represented by the receipts were necessarily made in the performance of duty, and when the advance has been made by the county or city treasurer to the person designated to return the fugitive, and has thereafter been audited by the State Controller, the payment thereof shall be made by the State Treasurer to the county or city treasury that has advanced the funds. (5) In every case where the expenses of the person employed to bring back the fugitive as provided in this section, are less than the amount advanced on the recommendation of the district attorney, the person employed to bring back the fugitive shall return to the county or city treasurer, as appropriate, the difference in amount between the aggregate amount of receipts so filed by him or her, as herein employed, and the amount advanced to the person upon the recommendation of the district attorney. (6) When no advance has been made to the person designated to return the fugitive, the sums expended by him or her, when audited by the State Controller, shall be paid by the State Treasurer to the person so designated. (7) Any payments made out of the State Treasury pursuant to this section shall be made from appropriations for the fiscal year in which those payments are made. (d) Payments to state agencies will be made in accord with the rules of the California Victim Compensation and Government Claims Board. No city, county, or other jurisdiction may file, and the state may not reimburse, a claim pursuant to this section that is presented to the Department of Corrections and Rehabilitation or to any other agency or department of the state more than six months after the close of the month in which the costs were incurred.")
7 California Penal Code 1554.2 PC - Application for requisition from foreign state; contents; verification; accompanying documents; filing; forwarding copies with requisition. ("(a) When the return to this state of a person charged with crime in this state is required [via extradition into California], the district attorney shall present to the Governor his written application for a requisition for the return of the person charged. In such application there shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, and the state in which he is believed to be, including the location of the accused therein at the time the application is made. Such application shall certify that, in the opinion of the district attorney, the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim. (b) When the return to this state is required of a person who has been convicted of a crime in this state and who has escaped from confinement or has violated the terms of his bail, probation or parole the district attorney of the county in which the offense was committed, the Board of Prison Terms, the Director of Corrections, the California Institution for Women, the Youth Authority, or the sheriff of the county from which escape from confinement was made, shall present to the Governor a written application for a requisition for the return of such person. In such application there shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape or of the violation of the terms of his bail, probation or parole, and the state in which he is believed to be, including the location of such person therein at the time application is made. (c) The application shall be verified, shall be executed in duplicate, and shall be accompanied by two certified copies of the indictment, the information, or the verified complaint made to the magistrate stating the offense with which the accused is charged, or the judgment of conviction or the sentence. The officer or board requesting the requisition may also attach such affidavits and other documents in duplicate as are deemed proper to be submitted with such application. One copy of the application, with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment, verified complaint, information, or judgment of conviction or sentence shall be filed in the office of the Secretary of State. The other copies of all papers shall be forwarded with the Governor's requisition. (d) Upon receipt of an application under this section, the Governor or agent authorized in writing by the Governor whose authorization has been filed with the Secretary of State, may sign a requisition for the return of the person charged and any other document incidental to that requisition or to the return of the person charged.")
8 California Penal Code 1555 PC - Exemption of person extradited from civil process in certain actions; time - Extradition into California. ("A person brought into this State on, or after waiver of extradition based on a criminal charge shall not be subject to service of process in civil actions arising out of the same facts as the criminal proceedings for which he is returned, until he has been convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the State from which he was extradited.")
9 California Penal Code 1556 PC - Prosecution of extradited person for other offenses - Extradition into California. ("After a person has been brought back to this State by extradition proceedings, he may be tried in this State for other crimes which he may be charged with having committed in this State as well as for the crime or crimes specified in the requisition for his extradition.")
10 See Penal Code 1554.2 PC, endnote 6, above.
11 California Penal Code 1551.05. PC - Mentally disordered and developmentally disabled offenders on outpatient status; departure from state without approval; application for extradition. ("(a) Any person on outpatient status pursuant to Title 15 (commencing with Section 1600) of Part 2 or pursuant to subdivision (d) of Section 2972 who leaves this state without complying with Section 1611, or who fails to return to this state on the date specified by the committing court, shall be subject to extradition in accordance with this section. (b) When the return to this state is required by a person who is subject to extradition pursuant to subdivision (a), the Director of Mental Health shall present to the Governor a written application for requisition for the return of that person. In the requisition application there shall be stated the name of the person, the type of judicial commitment the person is under, the nature of the underlying criminal act which was the basis for the judicial commitment, the circumstances of the noncompliance with Section 1611, and the state in which the person is believed to be, including the specific location of the person, if known. (c) The application shall be verified, shall be executed in duplicate, and shall be accompanied by two certified copies of the court order of judicial commitment and of the court order authorizing outpatient status. The director may also attach any affidavits or other documents in duplicate as are deemed proper to be submitted with the application. One copy of the application, with the action of the Governor indicated by endorsement thereon, and one copy of the court orders shall be filed in the office of the Secretary of State. The other copies of all papers shall be forwarded with the Governor's requisition. (d) Upon receipt of an application under this section, the Governor or agent authorized in writing by the Governor whose authorization has been filed with the Secretary of State, may sign a requisition for the return of the person.")
12 California Penal Code 1554.1 PC - Governor's warrant; issuance to agent to receive person demanded from foreign state - Extradition into California. ("Whenever the Governor of this State shall demand the return of a person charged with crime in this State or with escaping from confinement or violating the terms of his bail, probation or parole in this State, from the executive authority of any other State or of any foreign government or the chief justice or an associate justice of the Supreme Court of the District of Columbia authorized to receive such demand, he shall issue a warrant under the seal of this State to an agent, commanding him to receive the person so demanded and to convey him to the proper officer in the county in this State in which the offense was committed.")
13 California Penal Code 1558 PC - Compensation, fee, profit, or reward for procuring demand for or surrender of fugitive, etc.; violation - Extradition into California. ("No compensation, fee, profit, or reward of any kind can be paid to or received by a public officer of this state, a corporation or firm, or other person, for a service rendered in procuring from the Governor the demand mentioned in Section 1557, or the surrender of the fugitive, or for conveying him or her to this state, or detaining him or her therein, except as provided for in that section. Every person who violates any of the provisions of this section is guilty of a misdemeanor.")
See also California Penal Code 19 PC - Punishment for misdemeanor; punishment not otherwise prescribed. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.")
14 California Penal Code 1549 PC - Domestic offender held in foreign state; agreement for extradition and return; surrender of person who left demanding state involuntarily. ("When it is desired to have returned to this state a person charged in this state with a crime [via extradition into California], and the person is imprisoned or is held under criminal proceedings then pending against him or her in another state, the Governor of this state may agree with the executive authority of the other state for the extradition of the person before the conclusion of the proceedings or his or her term of sentence in the other state, upon the condition that the person be returned to the other state at the expense of this state as soon as the prosecution in this state is terminated. The Governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in Section 1548.2 with having violated the laws of the demanding state even though such person left the demanding state involuntarily.")
15 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to extradition in Nevada. Our Nevada law offices are located in Reno and Las Vegas.