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Extradition refers to the action where one jurisdiction surrenders an individual accused of committing a crime to another jurisdiction where they will face a trial. For foreign nations, the extradition process is carried out through a treaty between the United States government and the government of that other country. This article will provide a brief assessment of current extradition laws for an individual facing extradition to and from the United States and the extradition process that follows.
Currently, the United States has extradition treaties with more than 100 countries, of which a majority of the treaties are dual criminality treaties. Dual criminality refers to the notion that an individual can only be extradited if similar laws exist in both the extraditing country and receiving country. Unlike the United States, some other countries, such as Mexico and Canada, have extradition treaties for specific crimes. Notably, the United States has dual criminality extradition treaties with most of Latin America, South America, Europe, Australia, and South Asia. On the other hand, the United States continues to maintain diplomatic relations but has no extradition treaties with countries such as China, Bangladesh, Ethiopia, Ukraine, and the United Arab Emirates. In the United States, extradition can only occur with a country with which there exists a treaty, while certain countries allow extradition without a treaty.
Extradition from the United States
According to 18 U.S.C. § 3184, the United States can extradite any individual who has committed crimes of violence against a United States national. All foriegn requests for extradition must be conveyed through diplomatic channels such as the requesting nation’s embassy in Washington, DC to the Department of State. If the submitted request meets all requirements as per 18 U.S.C. § 3190 (treaty exists, crimes are extraditable offenses, etc.), an attorney from the Department of State’s Office of the Legal Advisor drafts a legal document outlining that all requirements were met. This request is then forwarded to the Justice Department’s Office of International Affairs (OIA). After reviewing the request, the OIA forwards it to the United States Attorney’s Office and the specific jurisdiction wherein the accused is located. After obtaining a warrant and arresting the individual, the United States Attorney’s office brings the accused in front of a magistrate judge or the US district judge. A further investigation and trial is carried out to determine if the accused did actually commit extraditable offenses. According to section 9-15.700 of 18 U.S.C. § 3190:
“If the court finds the fugitive to be extraditable, it certifies the extradition and sends the record to the Secretary of State, who decides whether to
surrender the fugitive. In some cases a fugitive may waive the extradition process or consent to extradition.”
Following the proceeding, the OIA arranges for the transfer of the convicted individual to the foriegn government and the agents that will receive them. At this phase, the United States no longer has any legal jurisdiction over the fugitive, and the individual is under the jurisdiction of that foreign government.
Extradition to the United States
According to the Council on Foreign Relations, a prosecutor or attorney will meet with the relevant law enforcement agency, “to learn about the crime and decide whether an extradition is worth the significant costs.” If the presented case is deemed sufficient, an application will be sent to the Department of Justice, which will then be forwarded to the Department of State. Once approved by the Department of State, the request will be sent to the US embassy in the relevant country, wherein diplomats will submit the request to the local authorities. Once the country housing the accused individual approves the extradition request, the United States Marshals Service will escort the fugitive to the United States to face trial.
However, extradition to the United States is more complicated as the police power and the power of foreign relations are held to different standards and levels than in the United States. For example, in the United States, most criminal proceedings are carried out at the state level and foreign relations are carried out at the federal level. This creates obstacles for extraditing someone to the United States as per the United States Constitution, foreign governments can only maintain relations, or have official treaties, with the federal government. Sub-federal entities, such as states and districts are restricted from doing so. Thus, any foreign nation which wants to extradite an individual must do so through federal channels, and a state which wishes to prosecute an accused individual in a foriegn nation must request it to be done through the federal government. This, however, creates a loophole. Any state that submitted an extradition request is not required to adhere to the conditions laid forth by the federal government when the extradition request was submitted if the penalty is permissible in that state (such as not imposing the death penalty).
Additionally, various crimes in the United States have different criteria than those abroad. For example, crossing a state line is a prerequisite for a murder case to be handled by the federal government as opposed to a state government, as the act creates a federal jurisdiction. However, similar laws are non-existent in many countries. As a result, many treaties include special language about the nature of certain crimes to address this loophole.
Special Cases of Extradition
In some cases, the accused individual is not a national in the country within which they reside or the country which wants them to stand trial. In such rare cases, the Interpol Red Notice plays a role. Interpol, or the International Criminal Police Organization, is an international law enforcement agency with 195 member countries that share and access data on crimes and criminals, and offer a range of technical and operational support worldwide in order to facilitate worldwide police cooperation and crime control. The Red Notice list alerts police and border agents worldwide of the fugitive, and upon capture, the country can proceed with extradition procedures without prior request from another country.
How Long Does Extradition Take?
The time for a full extradition procedure can vary, depending on the severity of the crime committed, the countries making the request for extradition, and the overall costs of the proceedings. However, the average time of extradition involving the United States can take more than a year, from request submission to trial and transportation. Some extradition cases, however, can take years. For example, one case of a French man accused of murdering his girlfriend in Philadelphia in 1977 took nearly 25 years to settle. Ira Einhorn, a French national, fled the United States in 1981 before standing trial for the murder of his girlfriend, Holly Maddux, in 1977. According to the New York Times, the case took various legal turns. In 1993, Einhorn was sentenced in absentia to life in prison (criminal proceeding in which the accused is not physically present). The United States submitted an extradition request in 1997, but “France does not extradite foreign nationals based on trials in absentia. It also refuses to extradite people to countries where they could face the death penalty.” However, a new Pennsylvania law in 1998 allowed for a retrial, and after the United States promised that Einhorn would not be eligible for the death penalty, he was finally extradited in 2001.
How Many People are Extradited Each Year?
Currently, there is no accurate report on how many people are extradited to and from the United States as different countries and their relevant agencies have set varying reporting standards. Additionally, the Council on Foreign Relations has stated that “law enforcement or political sensitivities preclude many extraditions from being recorded,” making the true number of extraditions unknown. However, it is estimated that the United States Marshals Service handles between 350 to 600 extradition cases annually.
Alternatives to Extradition
Signing a Waiver: An individual accused of a crime and facing extradition can forego all extradition procedures by signing a waiver. This waiver essentially expedities the extradition process by transferring the individual directly to the relevant foreign authorities.
Deportation: Some nations, rather than undergo a formal and lengthy extradition process, choose to rather deport the individual to their country of origin. Thus, no formal administrative process is required.
Foreign Prosecution: In this case, the accused is a national of the country in which the trial is taking place but they committed the crime on foreign soil. Thus, the individual is tried and convicted of that foreign crime, such as murder, in their home country.
Overall, extradition has allowed for various countries to hold criminals accountable for their actions on foreign soil. Despite the lengthy formal and judicial process a single extradition case can take, extradition law has given the United States and various countries the opportunity to work together. However, given recent world events, COVID-19, and a changing sentiment around the fairness of judicial proceedings, the future of extradition remains to be seen.