Extradition is the process of arresting and returning a fugitive from one state to another state (or country). At an extradition hearing, a judge first determines whether the right person was arrested. Second, the transfer paperwork is reviewed for correctness. If the demand is proper, the fugitive from justice will be held for pickup by an agent of the demanding state.
The state where the fugitive is found is called the asylum state. The state that wants the fugitive returned is called the demanding state.
A fugitive is a person who:
- is charged with a crime in the demanding state,
- has escaped following conviction of a crime in the demanding state,
- has violated the terms of bail, probation, or parole in the demanding state, OR
- has committed an act in California which resulted in a crime in the demanding state.
Please note that a person can be considered a fugitive without knowing they are wanted. For example:
Joe goes on vacation to another state. He gets into a fight in a bar. Joe leaves the bar before police arrive and returns home. Months later he is stopped for a broken taillight. The officer informs Joe there is an out-of-state felony warrant. Joe is taken into custody.
After arrest an accused is entitled to an extradition hearing. At the extradition hearing, the prosecutor must prove that the right person is in custody. It must also be proved that the fugitive is charged with, or was convicted of, a crime in the demanding state.
What is the Extradition Process?
The extradition process basically involves three steps:
- a demand from the demanding state,
- the issuance of a California Governor's warrant,
- a probable cause and identification hearing.
Generally, a fugitive may be arrested without a warrant if the case involves a felony. A Magistrate's warrant may also be issued upon receipt of a verified complaint or affidavit. This includes both felonies and misdemeanors.
After arrest, the accused is informed of the reason for the arrest and the right to an attorney. If the person denies the fugitive accusations, an extradition hearing must be held within 10 days. The hearing is to determine:
- whether there is probable cause to believe that he or she is the correct person, and
- whether he or she is charged with, or was convicted of, a crime in the other state.
Please note that the accused may waive extradition hearing and agree to return to the demanding state.
Who is Subject to Extradition to Another State or Country?
Any person in California is subject to extradition if they:
- have been charged with a crime in another demanding state (or country),
- escaped following conviction of a crime in the demanding state,
- violated the terms of bail, probation, or parole in the demanding state, OR
- committed an act anywhere which resulted in a crime in the demanding state.
After arrest, a fugitive will be held in custody unless bail is set.
Please note that any criminal act recognized by the demanding state is an extraditable offense. However, extradition is usually not sought for misdemeanor offenses.
What is the Uniform Criminal Extradition Act?
The Constitution states that any person charged with a crime must be returned to the state having jurisdiction of the crime. But first, a demand must be made by the demanding state. The purpose of this rule is to keep one state from becoming a sanctuary for fugitives.
Most states have also signed the Uniform Criminal Extradition Act. This Act allows the extradition of any person who:
- is charged with a crime in the demanding state,
- has escaped from confinement following conviction of a crime in the demanding state,
- has violated the terms of his or her bail, probation, or parole in the demanding state, OR
- committed an act in California which resulted in a crime charged in the demanding state.
Under the Act any criminal act committed in the demanding state is a qualifying offense. This is true even if the criminal act is not a crime in the asylum state. It applies to both felonies and misdemeanors.
Extradition is proper when the fugitive has left the demanding state and is found in the asylum state. The reasons for leaving don't matter. It is not necessary for the fugitive to have fled the demanding state to avoid prosecution.
Should a Person Try to Fight Extradition?
Sometimes a person may decide not to fight extradition to another state or country. Reasons to agree to extradition include:
- if resisting will be futile,
- if the accused wants to clear their name.
The extradition hearing process is a good opportunity to negotiate with the demanding state prosecutor. Various things may be negotiated by an experienced attorney. These could include:
- setting bail,
- negotiating the charges,
- paying restitution by the accused,
- negotiating when and how to surrender to the demanding state.
What are Defenses to Extradition Warrants?
There are several potential defenses to an extradition demand. These include:
- mistaken identity (wrong person),
- invalid or irregular paperwork from the demanding state.