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Duty to Surrender Fugitives From Justice

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.

INTERSTATE RENDITION

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.222 The Supreme Court has accepted this contemporaneous construction as establishing the validity of this legislation.223 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.224 But, in Kentucky v. Dennison,225 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; . . .”,226 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 1987.227 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.228

222 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).

Fugitive From Justice Defined.—To be a fugitive from justice within the meaning of this clause, it is not necessary that the party charged should have left the State after an indictment found or for the purpose of avoiding a prosecution anticipated or begun. It is sufficient that the accused, having committed a crime within one State and having left the jurisdiction before being subjected to criminal process, is found within another State.229 The motive which induced the departure is immaterial.230 Even if he 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.231 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.232 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.233 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,234 including misdemeanors.235

223 Roberts v. Reilly, 116 U.S. 80, 94 (1885). See also Innes v. Tobin, 240 U.S. 127 (1916). Said Justice Story: “[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, 618-619 (1842).

224 Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371 (1873).

225 65 U.S. (24 How.) 66 (1861); cf. Prigg v. Pennsylvania 41 U.S. (16 Pet.) 539, 612 (1842).

226 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.

227 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.

228 Id. at 230.

229 Roberts v. Reilly, 116 U.S. 80 (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).

230 Drew v. Thaw, 235 U.S. 432, 439 (1914).

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.236 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.237 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.238 Nor is it proper thereby to inquire into the motives controlling the actions of the governors of the demanding and surrendering States.239 Matters of defense, such as the running of the statute of limitations,240 or the contention that continued confinement in the prison of the demanding State would amount to cruel and unjust punishment,241 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.242 If, however, the evidence is conflicting, habeas corpus is not a proper proceeding to try the question of alibi.243 The habeas court’s role is, therefore, very limited.244

231 Innes v. Tobin, 240 U.S. 127 (1916).

232 Bassing v. Cady, 208 U.S. 386 (1908).

233 Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903).

234 Kentucky v. Dennison, 65 U.S. (24 How.) 66, 103 (1861).

235 Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 375 (1873).

236 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).

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

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

239 Pettibone v. Nichols, 203 U.S. 192 (1906).

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

241 Sweeney v. Woodall, 344 U.S. 86 (1952).

Trial of Fugitives After Removal.—There is nothing in the Constitution or laws of the United States which 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,245 or by abuse of legal process,246 and a fugitive lawfully extradited from another State may be tried for an offense other than that for which he was surrendered.247 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.”248

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

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

244 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.”

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

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

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

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

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Last modified: June 9, 2014