Rendition of Fugitives Under the Constitution

Article IV, Section 2, Clause 2 states:

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.

How the Constitution Deals with Fugitives

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Although this provision is not in its nature self-executing, and there is no express grant to Congress of power to carry it into effect, that body passed a law shortly after the Constitution was adopted, imposing upon the governor of each state the duty to deliver up fugitives from justice found in such state.¹ The Supreme Court has accepted this contemporaneous construction as establishing the validity of this legislation.² The duty to surrender is not absolute and unqualified; if the laws of the state to which the fugitive has fled have been put in force against him, and he is imprisoned there, the demands of those laws may be satisfied before the duty of obedience to the requisition arises.³ But, in Kentucky v. Dennison,⁴ the Court held that this statute was merely declaratory of a moral duty; that the Federal Government "has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it,"⁵ and consequently that a federal court could not issue a mandamus to compel the governor of one state to surrender a fugitive to another. Long considered a constitutional derelict, Dennison was finally formally overruled in 1987.⁶ Now, states and territories may invoke the power of federal courts to enforce against state officers this and other rights created by federal statute, including equitable relief to compel performance of federally imposed duties.⁷

Fugitive from Justice Defined

To be a fugitive from justice within the meaning of this clause, it is necessary that, in the regular course of judicial proceedings, one has been charged with a crime, but it is not necessary for one to have left the state after having been charged. It is sufficient that, having been charged with a crime in one state, one is found in another state.⁸ And the motive that induced the departure is immaterial.⁹ Even if a fugitive were brought involuntarily into the state where found by requisition from another state, he may be surrendered to a third state upon an extradition warrant.¹⁰ A person indicted a second time for the same offense is nonetheless a fugitive from justice by reason of the fact that after dismissal of the first indictment, on which he was originally indicted, he left the state with the knowledge of, or without objection by, state authorities.¹¹ But a defendant cannot be extradited if he was only constructively present in the demanding state at the time of the commission of the crime charged.¹² For the purpose of determining who is a fugitive from justice, the words "treason, felony or other crime" embrace every act forbidden and made punishable by a law of a state,¹³ including misdemeanors.¹⁴

Procedure for Removal

Only after a person has been charged with a crime in the regular course of judicial proceedings is the governor of a state entitled to make demand for his return from another state.¹⁵ The person demanded has no constitutional right to be heard before the governor of the state in which he is found on the question whether he has been substantially charged with crime and is a fugitive from justice.¹⁶ The constitutionally required surrender is not to be interfered with by habeas corpus upon speculations as to what ought to be the result of a trial.¹⁷ Nor is it proper thereby to inquire into the motives controlling the actions of the governors of the demanding and surrendering states.¹⁸ Matters of defense, such as the running of the statute of limitations,¹⁹ or the contention that continued confinement in the prison of the demanding state would amount to cruel and unjust punishment,²⁰ cannot be heard on habeas corpus but should be tested in the courts of the demanding state, where all parties may be heard, where all pertinent testimony will be readily available, and where suitable relief, if any, may be fashioned. A defendant will, however, be discharged on habeas corpus if he shows by clear and satisfactory evidence that he was outside the demanding state at the time of the crime.²¹ If, however, the evidence is conflicting, habeas corpus is not a proper proceeding to try the question of alibi.²² The habeas court’s role is, therefore, very limited.²³

Trial of Fugitives After Removal

There is nothing in the Constitution or laws of the United States that exempts an offender, brought before the courts of a state for an offense against its laws, from trial and punishment, even though he was brought from another state by unlawful violence,²⁴ or by abuse of legal process,²⁵ and a fugitive lawfully extradited from another state may be tried for an offense other than that for which he was surrendered.²⁶ The rule is different, however, with respect to fugitives surrendered by a foreign government, pursuant to treaty. In that case the offender may be tried only "for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."²⁷

Footnotes

1. 1 Stat. 302 (1793), 18 U.S.C. § 3182. The Act requires rendition of fugitives at the request of a demanding Territory, as well as of a State, thus extending beyond the terms of the clause. In New York ex rel. Kopel v. Bingham, 211 U.S. 468 (1909), the Court held that the legislative extension was permissible under the territorial clause. See Puerto Rico v. Branstad, 483 U.S. 219, 229–230 (1987).
2. Roberts v. Reilly, 116 U.S. 80, 94 (1885). See also Innes v. Tobin, 240 U.S. 127 (1916). Justice Story wrote: "[T]he natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution;" and again, "it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby." Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 616, 618–19 (1842).
3. Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371 (1873).
4. 65 U.S. (24 How.) 66 (1861); cf. Prigg v. Pennsylvania 41 U.S. (16 Pet.) 539, 612 (1842).
5. 65 U.S. (24 How.) 66, 107 (1861). Congress in 1934 plugged the loophole created by this decision by making it unlawful for any person to flee from one state to another for the purpose of avoiding prosecution in certain cases. 48 Stat. 782, 18 U.S.C. § 1073.
6. Puerto Rico v. Branstad, 483 U.S. 219 (1987). "Kentucky v. Dennison is the product of another time. The conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development." Id. at 230.
7. 483 U.S. at 230.
8. Roberts v. Reilly, 116 U.S. 80, 95 (1885). See also Strassheim v. Daily, 221 U.S. 280 (1911); Appleyard v. Massachusetts, 203 U.S. 222 (1906); Ex parte Reggel, 114 U.S. 642, 650 (1885).
9. Drew v. Thaw, 235 U.S. 432, 439 (1914).
10. Innes v. Tobin, 240 U.S. 127 (1916).
11. Bassing v. Cady, 208 U.S. 386 (1908).
12. Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903).
13. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 103 (1861).
14. Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 375 (1873).
15. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 104 (1861); Pierce v. Creecy, 210 U.S. 387 (1908). See also Matter of Strauss, 197 U.S. 324, 325 (1905); Marbles v. Creecy, 215 U.S. 63 (1909); Strassheim v. Daily, 221 U.S. 280 (1911).
16. Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v. Nichols, 203 U.S. 192 (1906).
17. Drew v. Thaw, 235 U.S. 432 (1914).
18. Pettibone v. Nichols, 203 U.S. 192 (1906).
19. Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). See also Rodman v. Pothier, 264 U.S. 399 (1924).
20. Sweeney v. Woodall, 344 U.S. 86 (1952).
21. Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). See also South Carolina v. Bailey, 289 U.S. 412 (1933).
22. Munsey v. Clough, 196 U.S. 364, 375 (1905).
23. Michigan v. Doran, 439 U.S. 282, 289 (1978). In California v. Superior Court, 482 U.S. 400 (1987), the Court reiterated that extradition is a summary procedure.
24. Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707, 712, 714 (1888).
25. Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v. Nichols, 203 U.S. 192, 215 (1906).
26. Lascelles v. Georgia, 148 U.S. 537, 543 (1893).
27. United States v. Rauscher, 119 U.S. 407, 430 (1886).