While the documents required for extradition vary based on the treaty, generally originals and four copies of all documents are required for extradition requests. All materials must be submitted to the OIA for review, authentication, translation, and transmission to the Department of State. The Department of State will transmit the request to the foreign government in accordance with the applicable treaty. Please note that accuracy and punctuality are paramount.
The following documents are generally required:
- Affidavit
- Violated statutes and pertaining statutes of limitations
- Evidence of crime (avoid grand jury and trial transcripts if possible)
- Evidence to establish the identity of the fugitive
- If the fugitive has been convicted:
- Certified copy of the order of judgment, conviction establishment
- Affidavit stating how much (if any) of the sentence was served
- If the fugitive has not been convicted:
- Certified copies of the arrest warrant and the indictment or complaint
Procedure After Assembling Documents
The prosecutor is responsible for reviewing all documents for accuracy and consistency prior to submission. Normally an original and four copies are required per document.
The OIA will double-check and certify the documents before sending them to the Department of State for translation. The district requesting the extradition will be billed for the translation.
Procedure in the Foreign Country
Once the request is complete, the Department of State sends it to the American Embassy of the country in question, which in turn forwards it to the appropriate agency in the foreign government. This is usually the foreign ministry of the foreign government.
The foreign government determines whether to carry out the extradition based on the materials in the packet and evidence presented by the fugitive. The procedure can often be delayed because of technicalities presented by the fugitive.
Note that the prosecutor cannot appear before the foreign government. Therefore, the written affidavit must be as convincing as possible in order to incite the foreign government to carry out the extradition.
Return of the Fugitive
If the extradition is approved, the OIA will send U.S. Marshals (occasionally accompanied by other officials) to escort the fugitive into the United States. The OIA will request parole letters for alien fugitives so that they can enter the United States.
Post Extradition Considerations – Limitations on Future Prosecution
Most extradition treaties abide by the Rule of Specialty. The Rule of Specialty restricts prosecution to the offense(s) that the fugitive was extradited for unless the fugitive commits another offense after the extradition or the fugitive remains in the jurisdiction for a certain period of time following serving his or her sentence.
If the prosecutor wishes to prosecute the fugitive for an offense other than the one for which the fugitive was extradited for, he or she must contact the OIA. Similarly, if the defendant attempts to use the Rule of Specialty in court or otherwise challenges his or her extradition, the prosecutor should contact the OIA.
Alternatives to Extradition
Extradition may be refused if:
- The fugitive is a national of the country in which he or she is located
- The statue of limitations on the crime having expired
- The crime does not merit extradition in the foreign country
- Other reasons
If the extradition request is denied, the OIA will advise the prosecutor on alternative measures.