What is Extradition?

• Extradition is a lengthy legal process that involves the surrender or transfer of a defendant from one jurisdiction to another to face criminal prosecution.
• The extradition process differs depending on whether the defendant is to be extradited from the United States, to the United States, or between U.S. states.
• The process is cumbersome and contains many exceptions or complications such as double jeopardy, the statute of limitations, prohibitions on extraditing citizens, or instances where the offense is punishable only in one jurisdiction.
• Consider hiring a competent attorney to handle the complex and sensitive extradition process.

Experienced Defense Team

If you need advice regarding the extradition process, do not hesitate to contact one of the experienced defense attorneys of Oberheiden, P.C..

The extradition process can be a challenging and worrisome time. Not only is the individual located in a foreign jurisdiction, but this is also an area of law where few attorneys have extensive experience and competence to undertake.

It is critical that you retain a qualified attorney in the requesting jurisdiction so that your defense team can immediately start working on your personalized strategy, investigating the facts, and communicating with the attorneys in the other jurisdictions.

Our attorneys are qualified to handle the complex issues surround extradition including bail, waivers, and possible plea deals. Do not wait to get in touch with a dedicated and skilled attorney today.

Put Oberheiden, P.C. on your side to challenge these extradition requests and fight for your liberty.

Extradition Defined

Extradition is a legal process that involves the formal surrender or transfer of a person from one jurisdiction to another to face criminal prosecution or some other form of punishment. Extraditions can take place between counties or between U.S. states.

Extradition has become especially popular with the increase in transnational organized crime and transnational criminal crime such as drug trafficking, international terrorism, counterfeiting, and even cybercrime.

Requests for extradition are generally granted only pursuant to extradition treaties where both parties have some form of reciprocity. They can sometimes be granted without a treaty where the individual – other than U.S. citizens – has committed a crime of violence against U.S. citizens in foreign countries.

The extradition process varies widely. On average, it can take over a year to receive the surrender of that individual, though some cases have taken over ten years to close.

What Are Extradition Treaties?

Extradition is generally governed by treaty. The United States has extradition treaties with over 100 countries. Despite this, extradition is sometimes possible with countries that have not established an extradition treaty with the United States.

Recent extradition treaties embrace the “dual criminality” approach. This approach allows an individual to be extradited only for crimes that are punishable under the laws of both jurisdictions. Older extradition treaties will instead simply list the offenses that are extraditable.

These treaties address many issues such as nationality (whereby most countries will not extradite their own citizens), transfer of evidence, double jeopardy, or statute of limitations. For instance, they will sometimes list various offenses that are not extraditable; in other words, countries will deny extradition for these offenses. Example here include political offenses, capital offenses, crimes where the defendant is a citizen of the country of refuge, or crimes punishable only under the laws of one country.

The Extradition Process

The extradition process must be separated into three categories:

1. Extradition Process of Persons from the United States: This process typically begins when the foreign government makes a request to the U.S. Department of State and Department of Justice. The details of the request include information on the person sought, the offenses alleged, evidence, and other important documents. After the Department of Justice determines that the request is compliant with the terms of the treaty, it obtains an arrest warrant and arrests the defendant. The matter is then generally referred to a magistrate judge, who determines whether there is probable cause that the person committed the offense. If the magistrate judge finds that there is probable cause, he or she will certify the country’s extradition request. The matter is then given back to the Department of State to carry out the remaining procedures of the extradition.

• Extradition Process of Persons to the United States: This process is generally initiated when either a state or federal law enforcement authority is notified of the extradition request. After that enforcement authority analyzes the request, it passes the matter to the Department of Justice. If the Department of Justice concludes that there is sufficient evidence for the request, the Department of State gets involved. Once the Department of State approves, it sends a request to the U.S. Embassy which is then responsible for communicating with the relevant authorities in the foreign country. At this point, the defendant may be able to challenge the extradition, depending on the requesting country. As soon as the foreign country approves, the defendant is transferred to the foreign country for further proceedings.

• Extradition Process Between U.S. States (Interstate Extradition): In the United States, federal law governs the transfer of defendants from one U.S. state to another. The U.S. Constitution Article IV, Section 2 provides that:

“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.”

Federal law – 18 U.S.C § 3182 – and the Uniform Criminal Extradition Act (“UCEA”) provide details on extradition requirements. The UCEA is not mandatory and states are free to adopt its provisions for extraditions or promulgate its own extradition laws that are otherwise compliant with federal law. The interstate extradition process generally begins when an out-of-state state arrest warrant is issued that is based on probable cause. There is a nation-wide database, called the National Crime Information Center (“NCIC”), where law enforcement authorities can view warrant notices in other states. If the defendant is arrested in a state other than the state that issued the arrest warrant, the second state notifies the requesting state that issued the warrant. If the state that issued the arrest warrant requests for the return of the defendant, the defendant has the option to waive the extradition process or fight it by filing a writ of habeas corpus. The process proceeds if the person refuses to waive the extradition process. At this stage, one state’s governor makes the extradition request to the other state’s governor. Once both governors agree, the extradition hearing is held, and the court will decide whether or not to grant the extradition request. If the request is granted, the defendant is transferred to the requesting state.

Examples of High-Profile Extraditions

To many, extradition evokes memories of high-profile and media-centered cases such as the following:

• Mexican drug lord, Joaquin “El Chapo” Guzman, who was extradited to the United States to face multiple charges including murder, money laundering, racketeering and organized crime charges, and drug trafficking.

• Former NSA contractor, Edward Snowden, who leaked classified documents and violated espionage statutes, evaded extradition by fleeing to Russia.

• WikiLeaks founder, Julian Assange, faces extradition hearings in a long battle to be returned to the United States for publishing confidential military and diplomatic documents, though the political nature of the offenses make extradition unlikely.

• Egyptian cleric, Abu Hamza al-Masri, was extradited to the United States after years of extradition requests and legal processes and was convicted for supporting Al Qaeda and Taliban terrorists.

Are There Any Alternatives to Extradition?

Waivers, extraordinary rendition, prosecution in the foreign country, and deportation are examples of alternatives to extradition.

• Waivers: Sometimes, the defendant may wish to waive the extradition hearing and details of the extradition process and simply be surrendered to the requesting jurisdiction.

• Extraordinary Rendition: In these circumstances, the defendant is forcibly abducted, denied access to the judicial process of the foreign country, and brought back to the United States or another country for detention or other legal process. This is a controversial practice, though the U.S. Supreme Court in United States v. Alvarez-Machain, 504 U.S. 655 (1992) held that the defendant can stand trial for violations of U.S. criminal laws even if the defendant was forcibly abducted from another country and brought to the United States.

• Prosecution in the Foreign Country: This option entails prosecuting the individual in the foreign country and usually occurs in situations where the defendant is a citizen of that foreign country and, consequently, not subject to extradition to the United States.

• Deportation: This process is most common with U.S./Mexican relations regarding drug trafficking or narcotics offenses. Here, the country agrees to deport the defendant to the United States as opposed to proceeding through the extradition process.

Need Advice on Extradition?

Both international and interstate extradition is a complex and multi-step process. Most importantly, it is a dauting prospect and carries with it the potential of severe penalties, significant jail time, and reputational damage.

It is imperative to retain competent counsel to handle either international or interstate extradition requests.

Call 888-680-1745 or contact us online today for a free consultation to help fight for your rights and prepare your extradition defense.