Imagine that someone has committed a serious crime — they killed someone or embezzled money — then they flee the jurisdiction before they can be prosecuted. Extradition is the legal process for a country to send an offender back to that first jurisdiction to stand trial or, if they have already been convicted, to serve their sentence.
International extradition is typically governed by treaties. While recent news stories have put heightened attention on extradition, the practice isn’t new. The first known extradition treaty was in place in 13th-century Egypt, while the United States’ first extradition treaty was with the United Kingdom in 1794.
Here are some other key points to understand about extradition.
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Wrongdoing That Can Result in Extradition
Early extradition treaties included a list of crimes that warranted extradition, such as murder, says Jeffrey Lehtman, a member of Miller & Chevalier Chartered who was previously a trial attorney in the Department of Justice Criminal Division’s Office of International Affairs.
However, if the treaty sets out specific offenses, it must be frequently updated to include new crimes (such as cyber-related offenses).
To avoid this, more recent treaties have increasingly taken an alternative approach, sometimes using what’s known as a “dual criminality clause” to determine what’s extraditable. Under a dual criminality provision, people are subject to extradition if they commit an act that is illegal in both signatory nations.
The Political Offense Exception
Most treaties have a “political offense” exception to extradition, meaning the country won’t extradite someone being prosecuted for a purely political act. However, few treaties define what constitutes a political offense, so this is largely left to domestic law, Lehtman says.
Usually, this exception only relates to the person’s political acts, such as campaigning for office. It does not apply to someone charged with perpetrating violent crimes — such as an assassination — even if those acts were undertaken with a political agenda.
Additionally, while some treaties include a provision to protect someone if the criminal charges are trivial or seem to be a pretext, in most cases the political offense exception doesn’t apply to someone who has been charged with political crimes and claims those indictments are politically motivated.
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Citizens Can Be Extradited by Their Home Countries
There’s a commonly held misconception that countries won’t extradite their own citizens. The reality is that many countries have no such bar on citizens’ extradition. And countries that are against extradition of their citizens still do it in certain circumstances — even in the absence of a treaty, Lehtman says.
When and Why Countries May Refuse to Extradite
Treaties often include exceptions to extradition, identifying situations where a signatory nation will refuse to extradite. For example, some countries won’t extradite to the United States if the person could receive the death penalty if convicted. Other countries will refuse to extradite if the offender would face life imprisonment.
In such cases, the U.S. State Department and the Department of Justice will usually provide assurances to the other country that they won’t seek the death penalty or lifetime incarceration without parole, in exchange for the other nation’s willingness to proceed with the extradition, Lehtman says.
Countries may also refuse to extradite someone who has been convicted in a trial by absentia, when they weren’t there, on the grounds that the trial did not provide them with the necessary due process, he says.
The ‘Speciality’ Rule
American extradition treaties often include the “specialty rule.” This means that, when someone is extradited for committing enumerated crimes, those are the only crimes they may be tried for once they’re returned to the requesting country. In most cases, a country can’t justify extradition because of one rationale and then later try the person for something completely different unless the requested country approves this change.
The Basic Process of Extradition
Once the requesting country has either issued an indictment or judgment against the person, the local authority will arrest them. The person then must go to an extradition proceeding in court. Since they will usually be seen as a flight risk, the presumption is that they will be held without bail, have their passport revoked or have other measures taken to prevent their escape before the proceeding has concluded.
In most cases, a treaty sets out requirements for extradition, and if the requesting country has met those obligations, the extradition will usually proceed, Lehtman says.
In U.S. federal courts, since the proceeding’s only determination is relating to extradition, the normal rules that guide American federal courts don’t apply. While a person can argue against extradition, they aren’t allowed to attack the merits of the case unless it relates to why they shouldn’t be extradited (such as why the political offense exception should apply).
If the judge concludes that the person should be extradited, the case goes to the country’s foreign ministry (in the U.S., the State Department) for a final review.
While it’s possible to appeal a court’s extradition decision, these appeals are rarely successful. Practically, the more likely alternative would be to petition the ministry, asking it to overturn the decision, Lehtman says.
In theory, a ministry can overturn an order of extradition if it concludes that it would harm the country’s larger foreign policy goals. However, that rarely happens.
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Extradition Applies Within the U.S. Too
International extradition is not the only form of extradition relevant in the U.S. Extradition may occur on a state-to-state basis as well.
Under Article IV of the Constitution, if someone is accused of committing a crime in one state and they’ve fled to another state to avoid prosecution, the governor of the first state can request that the second state surrender the accused offender to them. If so, the second state must surrender the person and has no discretion to challenge this request — even if the second state has concerns the fugitive will not receive a just trial if they are returned.
In both international and interstate jurisdiction, the overriding issue in extradition can be seen that the prosecuting authority should be able to adjudicate a crime that has occurred in its jurisdiction. And in this light, bringing perpetrators to justice is more important than citizenship — whether of a state or nation.
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What Is Extradition? originally appeared on usnews.com
