Article IV, Section 2, Clause 2:

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.

A person must be charged with a crime in the regular course of judicial proceedings before the state’s Governor may demand his return from another state.1 The accused has no constitutional right to a hearing before the Governor of the asylum state (the state where the fugitive is located) on whether he has been substantially charged with a crime and is a fugitive from justice.2 Nor may courts inquire into the motives of the Governors of the demanding and surrendering states.3

The asylum state’s courts cannot use habeas corpus to refuse to surrender the accused based on speculations about the accused’s trial in the demanding state.4 Likewise the asylum state’s courts cannot hear the accused’s arguments that the statute of limitations has expired,5 or that confinement in the demanding state’s prison would constitute cruel and unjust punishment,6 although the accused may make such arguments in the demanding state’s courts. An accused will, however, be discharged on habeas corpus if he shows by clear and satisfactory evidence that he was outside the demanding state when the crime occurred.7 If, however, the evidence is conflicting, habeas corpus is not the proper proceeding to try the question of alibi.8

The role of habeas corpus in interstate rendition cases is, therefore, very limited.9 Once the asylum state’s governor grants extradition, a court considering releasing the accused on habeas grounds can only decide: “(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.” 10

Nothing in the Constitution exempts an offender from trial and punishment following extradition, even though he was brought from another state by unlawful violence,11 or by abuse of legal process.12 A fugitive lawfully extradited from another state may be tried for an offense other than that for which he was surrendered.13 The rule is different, however, for fugitives surrendered by a foreign government, pursuant to treaty. In that case, the fugitive may only be tried “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.” 14

Footnotes

1

Kentucky v. Dennison, 65 U.S. (24 How.) 66, 104 (1861); Pierce v. Creecy, 210 U.S. 387 (1908); see also In re of Strauss, 197 U.S. 324, 325 (1905); Marbles v. Creecy, 215 U.S. 63 (1909); Strassheim v. Daily, 221 U.S. 280 (1911).

2

Munsey v. Clough, 196 U.S. 364, 372 (1905); Pettibone v. Nichols, 203 U.S. 192 (1906).

3

Pettibone, 203 U.S. at 203.

4

Drew v. Thaw, 235 U.S. 432, 440 (1914).

5

Biddinger v. Commissioner of Police, 245 U.S. 128, 135 (1917); see also Rodman v. Pothier, 264 U.S. 399 (1924).

6

Sweeney v. Woodall, 344 U.S. 86, 89–90 (1952).

7

Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903); see also South Carolina v. Bailey, 289 U.S. 412 (1933).

8

Munsey v. Clough, 196 U.S. 364, 375 (1905).

9

Michigan v. Doran, 439 U.S. 282, 289 (1978). In California v. Superior Court, 482 U.S. 400, 407 (1987), the Court reiterated that extradition is a “summary procedure.”

10

Doran, 439 U.S. at 289.

11

Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707, 712, 714 (1888).

12

Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v. Nichols, 203 U.S. 192, 215 (1906).

13

Lascelles v. Georgia, 148 U.S. 537, 543 (1893).

14

United States v. Rauscher, 119 U.S. 407, 430 (1886).