International Extradition involves transferring a defendant from one country to another for prosecution. The process differs according to what countries are involved; normally, it is treaty regulated.
The U.S. can extract a person for prosecution in the U.S. without a treaty in the following situations:
- The other country agrees to the extradition
- The intended defendant is accused of committing a violent crime against a U.S. national located outside of the U.S.
U.S. Law pertaining to International Extradition:
- Constitution, Art. 4, Sec. 2.
- 18 U.S.C. 3181, 3184
Prosecutors must contact the Officer of the Independent Adjudicator (OIA) about international extradition cases before contacting foreign officials or other parties, as foreign policies and treaties complicate such cases.
Procedure for Requesting Extradition from Abroad:
- Contact the Office of International Affairs,
- Make a preliminary determination of the intended defendant,
- Determine whether a provisional arrest (arrest prior to extradition) is called for,
- Request the extradition by submitting the required paperwork.
In some courts, the prosecutor is required to request an extradition as soon as the location of the intended defendant is known in order to comply with the Speedy Trial Clause or Act, unless doing so would be futile.
Role of the Office of International Affairs
The Officer of International Affairs (OIA) is responsible for negotiating international extraditions on behalf of prosecutors. OIA responsibilities include:
- Receiving formal requests from prosecutors
- Initiating provisional arrest requests to other countries in accordance with extradition treaties
Prosecutors are forbidden from submitting such requests to foreign countries on their own. Doing so can cause serious diplomatic problems for the United States.
Determination of Extraditability
Fugitive extraditability is determined using the following criteria. Prosecutors wishing to extradite a fugitive should compile the following information before contacting the ORA. Note that extradition is normally only possible if there is an extradition treaty between the U.S. and the country where the fugitive is located.
- Location: Including address if available.
- Citizenship: Extradition is normally not possible if the fugitive is a citizen of the country in which he or she is located.
- Offense Charged: Some extradition treaties limit extraditions based on the nature of the crime.
- Docket Information: Include the name of the court and judge/magistrate handling the case as well as the docket number.
- Current Status of Case: Warrant, indictment, complaint or conviction
- Facts of Offense: Include all dates and locations (some treaties take these into consideration)
- Potential for Trial or Retrial
- Time Constrains in Preparation of Extradition Documents: Untimely document compilation can make treaty-enforced provisional deadline arrests impossible.
In some cases, a person cannot be extradited from a foreign country due to a number of reasons. The following lists some, but not all, of the reasons why a criminal defendant may not be extraditable from a foreign country:
Procedure when Fugitive is Non-Extraditable
- The defendant is a citizen of the foreign country in question and is protected by their government,
- The underlying offense is a non-extraditable crime,
- The statute of limitations for prosecuting the crime at issue has run in foreign country,
- The foreign country denied a request by U.S. officials to extradite the defendant.
Request for Provisional Arrest
Because a formal extradition arrest is time-consuming, many treaties allow provisional arrests for urgent requests. The OIA determines whether or not a request is urgent based on whether the fugitive is likely to flee.
Whether or not a fugitive is placed under provisional arrest, the prosecutor must prepare a formal extradition request including authenticated, certified documents that have been translated into the language of the country where the fugitive is located. If a fugitive is placed under provisional arrest, the prosecutor normally has 1-3 months to do this, depending on the treaty.
Note: State prosecutors requesting provisional arrest must certify that the costs associated with the extradition will be covered.