Extradition Act Procedure

Extradition Act Procedure

As the preceding section explained, the Extradition Clause states a duty without a procedure, and Congress supplied the procedure in 1793. That statute, now codified at 18 U.S.C. § 3182, is the working rule for interstate extradition, and it operates in two stages that belong to two different governments.¹ In the first stage, the executive authority of the demanding state, meaning the state that has charged the person, demands the person as a fugitive from justice and produces the supporting papers. In the second stage, the executive authority of the asylum state, meaning the state to which the person has fled, arrests the person and sends the person back. The statute speaks of demands by a state or territory addressed to a state, district, or territory, so the arrangement is not confined to the fifty states.² Dividing the process this way gives each government a defined job. The demanding state vouches for the charge in a form the asylum state can check without trying the case, and the asylum state acts on those papers without re-deciding the prosecution.

The first stage turns on the papers. The demand must be accompanied by a copy of an indictment that has been found, or by an affidavit made before a magistrate, and either one must charge the person with treason, felony, or other crime.³ The governor or chief magistrate of the demanding state must also certify the paper as authentic.⁴ The two requirements do different work. The indictment or affidavit tells the asylum executive what the person is accused of, and it comes from a grand jury or from a magistrate, so a judicial actor in the demanding state has already examined the accusation. The certification tells the asylum executive that the paper is genuine, which spares that officer from investigating another state's records. Together they let an officer in one state act on another state's charge with confidence, even though the officer has no means of testing the evidence behind it.

The second stage is the asylum state's duty, and the statute states it in mandatory terms. The executive authority of the asylum state shall cause the person to be arrested and secured, and shall cause the fugitive to be delivered to the demanding state's appointed agent when the agent appears, after notifying the demanding executive or that agent.⁵ California v. Superior Court read the statute's text the same way and concluded that the asylum state is bound to deliver up a fugitive against whom a properly certified indictment or affidavit is lodged.⁶ Michigan v. Doran explains why the duty leaves the asylum state little room to question the charge. Interstate extradition was meant to be a summary and mandatory executive proceeding, and the clause never contemplated that the asylum state would conduct the kind of preliminary inquiry that ordinarily falls between arrest and trial.⁷ In Doran, the Michigan court had found that Arizona's complaint, arrest warrant, and supporting affidavits were too conclusory to show probable cause, and the Supreme Court disagreed and reversed.⁸ The shape of the duty follows from the purpose. If each asylum state could weigh the strength of a sister state's case, every refuge would decide for itself whether its neighbor's prosecution deserved respect, and the sanctuary problem would return by another route. The clause also sends the person to the state having jurisdiction of the crime, and that state, with its witnesses and its law, is where the charge is tested.⁹ Students lose this issue by letting the asylum state weigh the evidence, when the Act directs the asylum executive to act on the certified papers and provides no step at which the strength of the charge is assessed.

The division between the two halves of the checklist is the division the next two parts follow. The first covers what the demanding state must send, and the second covers what the asylum state must do once a proper demand arrives.

Demand and Supporting Papers

The demanding state's part of the Act is a showing built from three pieces: a demand, a charging paper, and a certification of that paper. The executive authority of the demanding state must demand the person as a fugitive from justice from the executive authority of the state to which the person has fled. That demand must be accompanied by a copy of an indictment found or an affidavit made before a magistrate, charging the person with treason, felony, or other crime, and the copy must be certified as authentic by the governor or chief magistrate of the demanding state.¹² Each piece answers a different problem that the asylum state would otherwise face, so the reasons are clearest when the pieces are taken one at a time.

The demand comes first, and it is an act of one executive addressed to another. The asylum governor's duty in these cases is ministerial, meaning it is carried out without discretion to weigh the merits, and an officer in that position can arrest only on authority supplied by a law of the state or of Congress.¹³ A demand from the demanding state's executive authority is the event that engages the federal statute and gives the asylum governor that authority. Whether to make a demand at all is the demanding state's own decision, because federal law imposes no duty on a state to seek a fugitive's return, and a state may confine its governor's demands to felonies if it chooses.¹⁴ The Act itself reaches further than such a policy would: it covers treason, felony, or other crime, so a misdemeanor charge can support a demand, and an asylum state cannot adopt a policy of refusing to surrender fugitive misdemeanants.¹⁵

The charging paper must show that the person is substantially charged with a crime against the demanding state's laws. Before the asylum governor can lawfully comply with a demand, it must appear that the person is charged in that way by an indictment or an affidavit certified as authentic by the demanding governor, and that the person is a fugitive from the justice of the demanding state.¹⁶ The first of those prerequisites is a question of law answered from the face of the papers, so the charging paper is the document the demanding state must get right.¹⁷ Because the statute lists an indictment and an affidavit as alternatives, a state that has not yet gone to a grand jury can still proceed on a sworn affidavit taken before a magistrate.¹⁸

The reason for requiring a paper in one of these forms comes from what the asylum state is not asked to do. Interstate extradition is a summary and mandatory executive proceeding, and the Extradition Clause never contemplated that the asylum state would conduct the preliminary inquiry that ordinarily falls between arrest and trial.¹⁹ Because the asylum state does not test the charge, the assurance that the charge is genuine has to arrive with the demand. A grand jury's indictment or a sworn statement taken by a magistrate supplies that assurance, since a body or a witness other than the prosecuting officials has already committed to the accusation. The requirement also checks a temptation: the state that wants the person back has the strongest motive to overstate its case, and the paper forces the charge into a formal instrument before the demand can call on another state's police power.

The certification comes from the demanding state's own chief executive, the governor or chief magistrate of the place the person fled from, and it vouches that the copy of the charging paper is authentic.²⁰ Authentication is the problem this piece solves. Delivering a fugitive requires official communications between states and the authentication of official documents, which is one of the needs that led the framers to give Congress power over how records and proceedings are proved.²¹ Without the certification, the asylum executive would have to confirm for itself that an indictment exists in another state's court and reads as the copy says. With it, the asylum executive can rely on the document as genuine, which fits an office that has no room to investigate. The certification speaks only to genuineness and says nothing about how strong the evidence is. Students lose this issue by treating an assurance that a charge exists, such as a phone call or a letter from a prosecutor, as the equivalent of the certified paper, when the Act asks for the paper itself and for the demanding governor's certification of it.

These requirements have been stable since the beginning. The Act of 1793, as Dennison quotes it, already called for a demand by the executive authority of a state or territory, a copy of an indictment found or an affidavit made before a magistrate charging treason, felony, or other crime, and certification as authentic by the governor or chief magistrate of the jurisdiction the person fled from.²² The Revised Statutes version reproduced in Hyatt v. People ex rel. Corkran carries the same core, and so does the current text of 18 U.S.C. § 3182 quoted in California v. Superior Court.²³ Only the list of covered jurisdictions differs, since the current text speaks of a state, territory, or district where the 1793 text named the states and the territories northwest and south of the Ohio River.²⁴ Older decisions applying the papers requirement therefore remain useful under the modern statute.

The complete showing is the one that triggers the duty that follows. That decision describes the consequence in the Act's own terms: when a properly certified indictment or affidavit charging a crime is lodged, the asylum state is bound to deliver the fugitive to the demanding state's agent.²⁵ A demand from one governor to another that encloses a copy of an indictment charging a felony, certified as authentic by the demanding governor, is therefore complete, and the demanding state has nothing further to supply.

Each variation changes one fact and shows which fact carried the result. Swapping the indictment for an affidavit changes nothing, because the statute treats the two as alternatives. Dropping the paper leaves the asylum governor with an assurance and none of the instruments the Act requires. Genuine papers that arrive without the demanding governor's certification fall short for the same reason, since the Act makes certification part of the showing.²⁶ Once the papers are in order, the burden shifts to the asylum state, whose duty is the subject of the next section.

Asylum State's Duty to Deliver

Once a demand with the papers described above reaches the asylum state, the work shifts to that state's executive authority, and the statute leaves it three tasks. The executive must cause the person to be arrested and secured, must notify the demanding executive or the agent appointed to receive the fugitive, and must cause the fugitive to be delivered to that agent when the agent appears.²⁹ The Constitution uses the same mandatory vocabulary: a person charged with treason, felony, or other crime who flees and is found in another state "shall" on demand of the executive authority of the state from which the person fled be delivered up, to be removed to the state having jurisdiction of the crime.³⁰ The question for this part is how much room that language leaves the asylum governor, and the answer is that it leaves room only for confirming that the demand is the one the statute describes.

The asylum governor's role is ministerial, a word that describes an officer who carries out a duty the law defines without discretion to decide whether the duty is wise. Kentucky v. Dennison described the governor's function in just those terms, as one performed without the right to exercise either executive or judicial discretion.³¹ The case arose when Kentucky sought mandamus, a court order directing an official to perform a legal duty, against Ohio's governor to compel the surrender of a man charged under Kentucky law with helping an enslaved person escape.³² Dennison nonetheless called the duty merely moral and refused the writ, which left the federal courts unable to compel any governor to act.³³ That half of the decision did not last. In Puerto Rico v. Branstad the Court overruled the moral-duty holding and held that a state's failure to meet its obligations under the Extradition Clause may be remedied by mandamus or injunction in the federal courts.³⁴ Branstad kept the part of Dennison that found a mandatory duty on a proper demand, and later decisions repeat that the clause's commands are mandatory and leave no discretion to the asylum state's executive officers or courts.³⁵ An answer that relies on Dennison's moral-duty language as though it were current law states a rule that Branstad overruled.

The duty has this shape for reasons that can be separated. Its mandatory character comes from the clause's purpose, which was to keep any state from becoming a sanctuary for fugitives from another state's justice system and so to fragment the administration of criminal justice among the states.³⁶ If delivery depended on the asylum governor's goodwill, the guarantee would be only as strong as the least cooperative governor. Its ministerial character answers a subtler problem of incentive. The governor holding the fugitive has no stake in the demanding state's prosecution, answers to local voters who may sympathize with the person sought or dislike the demanding state's law, and bears none of the cost when a crime goes unpunished elsewhere. Every one of those pressures runs toward refusal, so a rule that let the governor weigh them would bring the sanctuary back by a different route. History shows the pressure at work: in the antebellum period, governors of free states invoked the moral-duty reading that Dennison later adopted when asked to extradite people who had assisted the escape of enslaved people.³⁷ Making the governor's task ministerial leaves the question of guilt with the courts of the state that has jurisdiction of the crime, which is where the clause sends the person.³⁸

Mandatory does not mean unconditional. The duty to deliver binds the asylum state when a properly certified indictment or affidavit charging a crime is lodged against the person sought, so the asylum executive has to read the demand to learn whether the duty has attached.³⁹ Reading the demand against the statute applies a legal standard to papers in front of the governor, and that differs from deciding whether the prosecution is sound. A governor's grant of extradition is presumptively sufficient, and a court asked to release the person on habeas corpus, a petition challenging the lawfulness of a detention, may then decide only four questions, each a historic fact that can be verified without trying the case.⁴⁰

When all four answers are yes, the asylum executive proceeds to arrest, notify, and deliver, and nothing further remains to be weighed.⁴¹ The fourth question is the one that most often produces a real dispute, because it is the one where a statutory element can genuinely be missing. In Hyatt v. People ex rel. Corkran, Tennessee's demand led New York's governor to issue a warrant, and the Court affirmed the person's discharge because he had been in Tennessee only for a single day on business, well after the alleged acts, and was not there when the crimes were allegedly committed.⁴² Presence in the demanding state when the alleged crime occurred is what the fugitive element requires, so the warrant was improperly issued and the duty to deliver never arose.

Everything outside the four questions stays with the demanding state. Whether the charged conduct would also be a crime under the asylum state's own law is irrelevant.⁴³ So are claims about what actually happened in the demanding state, about that state's law, and about what awaits the person on return. In New Mexico ex rel. Ortiz v. Reed, the New Mexico Supreme Court had treated a man who fled Ohio, fearing that his parole would be revoked without due process and that he would be hurt in prison, as a "refugee from injustice" rather than a fugitive, and the Court held that such claims must be tried in the demanding state's courts.⁴⁴ The reason is practical as well as legal: a trial of those claims in the asylum state would force the demanding state to bring witnesses and records to a court far from the events, and the demanding state is where the parties can be heard and relief can be shaped.⁴⁵

In the first scene the governor's disagreement changes nothing, because the four questions have no place for it. In the second scene the governor's own sheriff asks a question the statute does require, and a negative answer ends the duty as to that person. A demand that arrives without the demanding governor's certification fails at question one in the same way, so an asylum executive who waits for the certified copy has not exercised discretion, since the statutory duty had not yet attached.⁴⁶