What Are the Procedures for Resisting Extradition?
There are four basic ways to oppose extradition of someone being held in one state, i.e. California, to another state.
The Reader’s Digest Version: Resisting extradition can involve demanding an identity hearing, convincing the demanding state to drop the extradition request, seeking a Governor’s hearing or filing a writ of habeas corpus. To read about each of these tactics, read the following article.
This is a big decision when the charge or charges alleged in the demanding state, as waiving extradition will shorten the time to thirty days for the demanding state to pick up the arrestee and unsuccessfully opposing extradition will lengthen it to 90 days maximum. Indeed, resisting extradition is often not the best tactic, as denial of extradition does not dismiss the case in the demanding case. In fact, the demanding state can renew its request to deliver the person (requisition) at any time once the person leaves California or if there is a change in circumstances to reinstate extradition proceedings. The person literally can be rearrested and dragged through the same process at any time because, presently, the denial of extradition does not appear on police computer records and the warrant from the demanding state is not removed from such records. Lastly, the demanding state may not give credit to the person for time spent in jail in the asylum state.
However, if one decides to oppose extradition, one should first request an identity hearing if the person denies being the person charged with or convicted of a crime in the demanding state. This hearing is provided for under Penal Code § 1551.2. The hearing must be held within ten days of the initial arraignment on the possible extradition, under Penal Code §§ 1550.1 and 1551.2.
US Marshall PatchThe identity hearing often involves the prosecutor from the demanding state submitting a photograph, fingerprint card, or both, attached to a declaration from the custodian of records of the demanding state laying a foundation to these records as to their authenticity. This declaration with its attachments are provided to the asylum state judge, depending upon whether the judge here in California follows the California Evidence Code in this hearing. A fingerprint expert here may then be needed to compare the fingerprints from the person in custody here with the fingerprints from the demanding state.
The second way to resist extradition is to persuade the prosecutor from the demanding state to withdraw its extradition request. This can be done several ways, most commonly by working out a plea bargain, or convincing the prosecutor of the severe hardship imposed by the extradition request, that the defendant is rehabilitated, that the charges are meritless or unsupported by the loss of evidence or witnesses, for example.
The third way to resist extradition is to request a Governor’s hearing on the extradition. It should be understood that this hearing is not a right, but is instead a matter of “grace,” or courtesy for the state to allow this.
Utt v. State (Md. 1982) 443 A.2d 582;
Cadle v. Cauthron (Ark. 1979) 584 SW2d 6. The California Penal Code in fact does not mention this, but the Governor may grant such a hearing to a nonfugitive accused (the crime took place outside the demanding state, i.e. in California but a state other than California demands defendant) if before the demanding state issues its warrant of rendition. Governor’s hearings are rarely granted, but can be requested.
Fourth, a person in custody awaiting extradition can oppose extradition by filing a petition for writ of habeas corpus after the Governor’s warrant has issued. There are only four valid grounds for such a writ: 1) that the person in custody is not the same person named in the Governor’s warrant; 2) that the person is not a fugitive from justice, i.e. the person is not extraditable under Penal Code § 1549.1; 3) that the person was not charged with or convicted of a crime in the demanding state; and 4) that the extradition documents are not sufficient, i.e. they are not in order. The issue of guilt or innocence may not be raised in such a writ. Penal Code § 1553.2.
For more information about extradition issues, please click on the following articles:
- What Documents Properly Support an Extradition Warrant?
- What Are the Deadlines for Extradition or Being Released?
- What Is an Extradition Hearing and How to Fight Extradition
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