Duty to Surrender Fugitives From Justice

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.229 The Supreme Court has accepted this contemporaneous construction as establishing the validity of this legislation.230 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.231 But, in Kentucky v. Dennison,232 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,”233 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 1987.234 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.235

Fugitive From Justice Defined.

To be a fugitive from jus- tice within the meaning of this clause, it is necessary that, in the regular course of judicial proceedings, one have been charged with a crime, but it is not necessary that one 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.236 And the motive that induced the departure is immaterial.237 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.238 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.239 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.240 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,241 including misdemeanors.242

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.243 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.244 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.245 Nor is it proper thereby to inquire into the motives controlling the actions of the governors of the demanding and surrendering states.246 Matters of defense, such as the running of the statute of limitations,247 or the contention that continued confinement in the prison of the demanding state would amount to cruel and unjust punishment,248 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.249 If, however, the evidence is conflicting, habeas corpus is not a proper proceeding to try the question of alibi.250 The habeas court’s role is, therefore, very limited.251

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,252 or by abuse of legal process,253 and a fugitive lawfully extradited from another state may be tried for an offense other than that for which he was surrendered.254 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.”255

Footnotes

229
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). [Back to text]
230
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). [Back to text]
231
Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371 (1873). [Back to text]
232
65 U.S. (24 How.) 66 (1861); cf. Prigg v. Pennsylvania 41 U.S. (16 Pet.) 539, 612 (1842). [Back to text]
233
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. [Back to text]
234
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. [Back to text]
235
483 U.S. at 230. [Back to text]
236
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). [Back to text]
237
Drew v. Thaw, 235 U.S. 432, 439 (1914). [Back to text]
238
Innes v. Tobin, 240 U.S. 127 (1916). [Back to text]
239
Bassing v. Cady, 208 U.S. 386 (1908). [Back to text]
240
Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). [Back to text]
241
Kentucky v. Dennison, 65 U.S. (24 How.) 66, 103 (1861). [Back to text]
242
Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 375 (1873). [Back to text]
243
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). [Back to text]
244
Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v. Nichols, 203 U.S. 192 (1906). [Back to text]
245
Drew v. Thaw, 235 U.S. 432 (1914). [Back to text]
246
Pettibone v. Nichols, 203 U.S. 192 (1906). [Back to text]
247
Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). See also Rodman v. Pothier, 264 U.S. 399 (1924). [Back to text]
248
Sweeney v. Woodall, 344 U.S. 86 (1952). [Back to text]
249
Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). See also South Carolina v. Bailey, 289 U.S. 412 (1933). [Back to text]
250
Munsey v. Clough, 196 U.S. 364, 375 (1905). [Back to text]
251
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.” [Back to text]
252
Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707, 712, 714 (1888). [Back to text]
253
Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v. Nichols, 203 U.S. 192, 215 (1906). [Back to text]
254
Lascelles v. Georgia, 148 U.S. 537, 543 (1893). [Back to text]
255
United States v. Rauscher, 119 U.S. 407, 430 (1886). [Back to text]