Concept
The Extradition Clause
Full Faith and Credit and Interstate Extradition
The Extradition Clause
Section 1 of Article IV operates on a decision already made: a court in one state is asked to treat a final judgment of another state's court as binding. The second paragraph of Section 2 concerns a situation that arises earlier and involves a person rather than a judgment, namely someone accused of a crime in one state who has gone to another. Its text reads: “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.”1 The sentence places an obligation on the state where the accused is found, requiring it to hand the accused over to the state that wants to try him. Because one state owes this obligation to another and officials carry it out rather than courts, the clause works very differently from Section 1.
Two features of the first part matter immediately. The phrase “other Crime” is broad, because it reaches every act that the demanding state's law forbids and punishes, which includes misdemeanors.2 Because the demanding state's own law defines the offense, the asylum state does not ask whether the same conduct would be a crime at home.3 The reason is that the state that will try the case is the state whose law was allegedly broken, and if each state could veto a sister state's charge by consulting its own criminal code, local penal policy would decide which prosecutions could go forward. The second part, flight, is different, because it is one of the few questions the asylum state may still examine: whether the person demanded is in fact a fugitive from justice.4
The vocabulary of the area follows from this picture. The state that wants the person is the demanding state, the state where the person has taken refuge is the asylum state, and the formal demand is called a requisition.5 The surrender itself is called extradition, or interstate rendition when it occurs between states of the Union.6 The device exists because the courts of the asylum state ordinarily have no power to try the crime, so the only state able to try the accused must ask the other state to arrest the person and hand the person over.7
The clause assigns the demand to the executive authority of the state the person fled, and the implementing statute directs that demand to the executive authority of the state where the person has gone, which must then arrest and secure the person and deliver the person to the demanding state's agent.8 Interstate extradition is therefore an executive process. In {{case-free}}Michigan v. Doran the Court described it as a summary and mandatory executive proceeding, and explained that the clause never contemplated the kind of preliminary inquiry that ordinarily separates arrest from trial.9 A hearing in the asylum state on whether the charge is well founded would duplicate the trial that belongs to the demanding state's courts, which is where the crime is to be tried and where the accused can contest the charge. The same decision describes the clause as putting into mandatory language the concepts of comity and full faith and credit that run through Section 1.10
The pair shows what triggers the clause and who acts under it. Students lose this issue when they reach for extradition to enforce a civil judgment or a private debt, because the clause applies only to a person charged with a crime. A private creditor goes to a court, while the state that wants a criminal defendant goes to the other state's executive.
The two ends of the process carry different obligations. The clause is triggered by a demand, and federal law imposes no duty on the offended state to make one, so a state may even confine its governor's demands to felonies.11 The asylum state has no comparable freedom, because the clause is written in mandatory terms and a fugitive on a proper demand shall be delivered up.12 A state policy of refusing to surrender fugitive misdemeanants would therefore conflict with the Constitution.13 The asymmetry follows from who bears the cost. A demand commits the demanding state's prosecutors, personnel, and court time to a case, so the choice stays with the state that pays for it, while the duty to deliver protects that prosecution from being defeated by the asylum state's disagreement with its priorities.
Two neighboring paragraphs of Section 2 are separate clauses and are not the subject of this chapter. The first, the Privileges and Immunities Clause, protects citizens of one state from discrimination by another, and in Toomer v. Witsell the Court described it as sharing the purpose of the full faith and credit and extradition provisions that surround it, which is to fuse independent states into one nation.14 The third, on persons held to service or labor, was superseded by the Thirteenth Amendment.15 The next two sections return to the extradition paragraph itself: first the purpose the clause serves, then the reason the clause could not operate on its own and the statute Congress adopted to supply a procedure.
No Safe Haven
The text of the Extradition Clause says what must happen, and its purpose explains why it is written as a command to the state where the accused is found. In California v. Superior Court the Court described the obvious objective of the clause as ensuring that no state becomes a safe haven for fugitives from a sister state's criminal justice system.17 The problem is one of geography. A state's courts and officers have no power to arrest or try anyone in another state, so an accused person who crosses the border is beyond the charging state's reach unless the state where the person lands agrees to send the person back. If each state could decide that question case by case, the answer would turn on local sympathy and on how the state regarded its neighbor, and a state that harbored one neighbor's fugitives could expect that neighbor to harbor its own. The clause removes that choice by committing every state in advance, and that advance commitment is the no-safe-haven principle.
Kentucky v. Dennison, the Court's first decision construing the clause, tied the point to the survival of the Union. The framers understood, the Court said, that because of the complex character of the government it must fail unless the states mutually supported each other and the general government, and that nothing was more likely to disturb its peace and end in discord than letting an offender against one state's laws cross the line dividing it from another, defy the first state's process, and stand ready, under the second state's protection, to repeat the offense when the next opportunity came.18 The repeat-offense point matters to the mechanism, because a refuge does more than frustrate one prosecution. It lets the same person return to offending from a protected position.
Later decisions repeat the theme. Michigan v. Doran described the clause as meant to let each state bring offenders to trial swiftly in the state where the offense occurred, to keep any state from becoming a sanctuary, and so to prevent the administration of criminal justice from fragmenting along state lines. It added that the clause states, in mandatory terms, the comity and full faith and credit principles of the clause just before it.19 Nevada v. Hall placed extradition among the specific limits on state sovereignty that show the Union is not made up of fifty wholly independent sovereigns, and it observed that the states are not free to deny extradition when another state's executive makes a proper demand.20 In each description the clause works as mutual support: every state gives up the option of shielding offenders, and in return every other state gives up the same option.
The flight element has a definite content. A person has fled from justice only by leaving a state in which the person was present when the crime was allegedly committed, and someone who visits that state later on business and then leaves has not fled from it.22 The reason follows from the purpose. The clause answers an escape from a state's process, and a person who was never in the state when the offense allegedly occurred has nothing to escape by leaving.
A case in which all four elements are present shows the purpose at work. In California v. Superior Court, Louisiana charged Richard Smolin and his father with kidnaping after they picked up two children near Slidell, Louisiana, and took them to California, and Louisiana's governor demanded that California deliver them up for trial.23 California's highest court had refused extradition by relying on California custody decrees, and the Supreme Court opened its analysis by describing the Extradition Clause as one of the limits the Constitution places on state sovereignty, limits that are part of the Framers' conception of national identity and Union.24 California held the Smolins within its borders, and the clause is the rule that keeps a state's borders from operating as protection against a sister state's charge.
The text also settles how serious the charge must be. The clause lists treason and felony and then adds a general term, other crime, and the implementing statute repeats the same phrase, so neither one requires any particular grade of offense.25 The purpose points the same way, since the harm of a refuge is that a state's laws can be defied from across a line, and that harm does not depend on whether the offense is classified as a felony. Students lose this issue by treating extradition as limited to felonies, when the text sets no minimum grade.
The pair isolates the departure. The charge existed in both versions, and what changed was whether the accused crossed a state line, which is the event that creates the refuge problem. Without a crossing, the charging state's own officers can act and the clause is never called on. With a crossing, the clause answers the demand with a duty to deliver the person up.
Why Congress Had to Act
The Extradition Clause says what the asylum state must do, which is to deliver up a person who is charged with a crime, has fled, and is found there. It says nothing about how the demand is made, what papers must back it, or what the asylum state's officers do to take the person into custody. A provision that states a duty and omits the machinery for performing it is not self-executing, meaning it cannot operate until some other source of law supplies the missing procedure. In Kentucky v. Dennison, the first decision to construe the clause, the Court held that the provision required action by Congress, and later decisions have repeated that the clause establishes no procedure of its own.27 Without a procedure, the duty to deliver up fugitives depends on how two state governments happen to get along, and an early dispute between two states shows what happens then.
That dispute arose in 1791, when Pennsylvania demanded that Virginia surrender three men charged with kidnaping a free Black man and selling him into slavery. Virginia refused to comply.28 The clause gave Pennsylvania a claim to the men, but it gave neither state a way to settle what proof Pennsylvania had to offer or whether Virginia's governor had authority to act on it, so the controversy had nowhere to go except upward. Both governors agreed that the matter belonged before the President, who submitted it to Congress.29 In California v. Superior Court the Court recounted that President Washington, relying on the advice of Attorney General Randolph, personally appeared before Congress to obtain a law regulating extradition, and that Congress responded with the Extradition Act of 1793, which survives in current form as 18 U.S.C. § 3182.30
Dennison itself explains why Congress, rather than each state, was the right body to write the procedure. A demand rests on a judicial proceeding in the demanding state, and if each state set its own rules, each might require different proof that the proceeding had actually taken place.31 The result would be a demand that satisfies one state's governor and fails before another's, so the demanding state could never know in advance what to send. The second reason concerns authority. The asylum governor's role in these cases is ministerial, meaning the governor carries out a duty without discretion to weigh the merits, and an officer in that position cannot lawfully issue an arrest warrant unless a law of the state or of Congress authorizes it.32 A procedure written separately by each asylum state would leave the rule in the hands of the very state being asked to surrender the person, which may have its own reasons to make the process harder. A federal statute binds every state alike and gives the governor in each of them the same authorization to act.
The 1791 dispute and the modern demand differ in one fact that matters, which is the existence of a federal statute. Under the Act the standard is written down and applies to every state, and the asylum state is bound to deliver up a fugitive against whom a properly certified indictment or affidavit charging a crime is lodged.33 The demanding state therefore knows what to send, and the asylum governor knows what authorizes the arrest. Students lose this issue when they say that the procedure comes from the clause itself, because the clause supplies only the duty and the Act supplies everything needed to carry it out.
Congress's authority to act came from two places, and the second ties this topic back to full faith and credit. The Constitution contains no express grant of legislative power to execute the Extradition Clause, yet the 1793 Act was adopted so early and has stayed in force so long that its validity has been treated as settled by that contemporary construction.34 The Court has also described the Act as a proper exercise of Congress's powers under the Extradition Clause and under the second sentence of Article IV, Section 1, which lets Congress prescribe by general law the manner in which the acts, records, and proceedings of one state are proved and the effect they carry.35 The fit is natural. An extradition demand rests on an indictment or an affidavit made before a magistrate, which the asylum state must be able to trust as authentic, and Dennison observed that delivering fugitives requires official communications between states and the authentication of official documents, a need the framers had in mind when they gave Congress its power over proof.36 Where the Act specifies procedures beyond the bare duty in the clause, the Court has treated those procedures as an exercise of that Section 1 power.37 The Act also stands out for another reason: it was the only early federal law brought to the Court's attention that imposed duties on state executive officers, and it was a direct implementation of the Extradition Clause itself.38
One part of Dennison no longer states current law. Dennison treated the duty as only a moral one that no federal court could compel an asylum-state governor to perform, and Puerto Rico v. Branstad overruled that part, holding that federal courts may enforce the duty by mandamus or injunction.39 What remains is the reasoning about why the clause needed Congress to give it a procedure, together with the rule that federal law now binds the asylum state.