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Extradition
To and From the United States:
Overview of the Law and Recent Treaties
Summary
"Extradition" is the formal surrender of a person by a State to another State for
prosecution or punishment. Extradition to or from the United States is a creature of
treaty. The United States has extradition treaties with over a hundred of the nations
of the world. International terrorism and drug trafficking have made extradition an
increasingly important law enforcement tool. This is a brief overview of federal law
in the area and of the adjustments in recent treaties to make them more responsive
to American law enforcement interests.
Extradition treaties are in the nature of a contract and generate the most
controversy with respect to those matters for which extradition may not be had. In
addition to an explicit list of crimes for which extradition may be granted, most
modern extradition treaties also identify various classes of offenses for which
extradition may or must be denied. Common among these are provisions excluding
purely military and political offenses; capital offenses; crimes that are punishable
under only the laws of one of the parties to the treaty; crimes committed outside the
country seeking extradition; crimes where the fugitive is a national of the country of
refuge; and crimes barred by double jeopardy or a statute of limitations.
Extradition is triggered by a request submitted through diplomatic channels. In
this country, it proceeds through the Departments of Justice and State and may be
presented to a federal magistrate to order a hearing to determine whether the request
is in compliance with an applicable treaty, whether it provides sufficient evidence to
satisfy probable cause to believe that the fugitive committed the identified treaty
offense(s), and whether other treaty requirements have been met. If so, the
magistrate certifies the case for extradition at the discretion of the Secretary of State.
Except as provided by treaty, the magistrate does not inquire into the nature of
foreign proceedings likely to follow extradition.
The laws of the country of refuge and the applicable extradition treaty govern
extradition back to the United States of a fugitive located overseas. Requests travel
through diplomatic channels and the only issue likely to arise after extradition to this
country is whether the extraditee has been tried for crimes other than those for which
he or she was extradited. The fact that extradition was ignored and a fugitive forcibly
returned to the United States for trial constitutes no jurisdictional impediment to trial
or punishment. Federal and foreign immigration laws sometimes serve as a less
controversial alternative to extradition to and from the United States.
Related reports include CRS Report RL32096, Extradition Between the United
States and Great Britain: The 2003 Treaty; and CRS Report RS21633, Extradition
Between the United States and Great Britain: A Sketch of the 2003 Treaty.
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Doyle, Charles. Extradition To and From the United States: Overview of the Law and Recent Treaties, report, September 30, 2003; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc822443/m1/2/: accessed March 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.