An Abridged Sketch of Extradition To and From the United States

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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, but there are many with
whom it does not. This is an overview of those treaties and of the procedures followed in this
country in response to an extradition request or to request extradition from another country.
This is an abridged version of CRS Report 98-958, Extradition To and From the United States:
Overview of the Law and Recent Treaties, by Charles Doyle, without the footnotes and citations
to authority found in the longer report.

Contemporary U.S. Treaties............................................................................................................1
Treaty Crimes............................................................................................................................1
Political Offenses......................................................................................................................1
Capital Offenses........................................................................................................................1
Want of Dual Criminality..........................................................................................................1
Extrat er ritoriality ....................................................................................................................... 2
Nationa lity ................................................................................................................................. 2
Double Jeopardy........................................................................................................................2
Lapse of Time............................................................................................................................2
Extradition from the United States..................................................................................................3
Hearing ........................................................................................................................ .............. 3
Revi ew ...................................................................................................................................... 4
Extradition to the United States.......................................................................................................4
Specialty .................................................................................................................................... 5
Alternatives to Extradition..............................................................................................................5
Waiver ....................................................................................................................................... 6
Immi gr ation ............................................................................................................................... 6
Irregular Rendition/Abduction..................................................................................................6
Foreign Prosecution..................................................................................................................6
Author Contact Information............................................................................................................6

Subject to a contrary treaty provision, federal law defines the mechanism by which we honor our
extradition treaty obligations. Although some countries will extradite in the absence of an
applicable treaty as a matter of comity, the United States ordinarily will not.
Extradition is generally limited to crimes identified in the treaty. Early treaties often recite a list
of the specific extraditable crimes. While many of our existing extradition treaties continue to list
specific extraditable offenses, the more recent ones feature a dual criminality approach, and
simply make all felonies extraditable (subject to other limitations found elsewhere in their various
provisions).
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 political offenses. The political offense
exception has proven troublesome. The exception is and has been a common feature of
extradition treaties for almost a century and a half. In its traditional form, the exception is
expressed in deceptively simple terms. American courts require that a fugitive seeking to avoid
extradition demonstrate that the alleged crimes were committed in the course of and incidental to
a violent political disturbance such as a war, revolution or rebellion. Contemporary treaties often
seek to avoid misunderstandings in a number of ways. They expressly exclude terrorist offenses
or other violent crimes from the definition of political crimes for purposes of the treaty; they
explicitly extend the political exception to those whose prosecution is politically or
discriminatorily motivated; and/or they limit the reach of their political exception clauses to
conform to their obligations under multinational agreements.
A number of nations have abolished or abandoned capital punishment as a sentencing alternative.
Several of these have preserved the right to deny extradition in capital cases either absolutely or
in absence of assurances that the fugitive will not be executed if surrendered.
Dual criminality exists when the two parties to an extradition treaty each punish a particular form
of misconduct. Subject to varying interpretations, the United States favors the view that treaties
should be construed to honor an extradition request if possible. Thus, dual criminality does not
require that the name by which the crime is described in the two countries shall be same; nor that
the scope of the liability shall be coextensive, or, in other respects, the same in the two countries.
It is enough if the particular act charged is criminal in both jurisdictions. When a foreign country
seeks to extradite a fugitive from the United States dual criminality may be satisfied by reference
to either federal or state law. Our treaty partners do not always construe dual criminality

requirements as broadly. In the past, some have been unable to find equivalents for attempt,
conspiracy, RICO, CCE, and crimes with prominent federal jurisdictional elements. Many
modern extradition treaties contain provisions addressing the problem of jurisdictional elements
and/or making extraditable attempt or conspiracy to commit an extraditable offense. Some
include special provisions for tax and customs offenses as well.
As a general rule, crimes are defined by the laws of the place where they are committed. There
have always been exceptions to this general rule under which a nation was understood to have
authority to outlaw and punish conduct occurring outside the confines of its own territory. In the
past, our extradition treaties applied to crimes committed within the territorial jurisdiction of the
country seeking extradition. Largely as a consequence of terrorism and drug trafficking, however,
the United States now claims more sweeping extraterritorial application for our criminal laws
than recognized either in our more historic treaties or by many of today’s governments. Here, our
success in eliminating extradition impediments by negotiating new treaty provisions has been
mixed. More than a few call for extradition regardless of where the offense was committed. Yet
perhaps an equal number of contemporary treaties permit or require denial of an extradition
request that falls within an area where the countries hold conflicting views on extraterritorial
jurisdiction.
The right of a country to refuse to extradite one’s own nationals is probably the greatest single
obstacle to extradition. The United States has long objected to the impediment and recent treaties
indicate that its hold may not be as formidable as was once the case. A growing number go so far
as to declare that extradition shall not be refused on the ground that the fugitive is a citizen or
national of the Requested State. Another form limits the nationality exemption to nonviolent
crimes; a third allows a conflicting obligation under a multinational agreement to wash the
exemption away. Even where the exemption is preserved, contemporary treaties more regularly
refer to the obligation to consider prosecution at home of those nationals whose extradition has
been refused.
Depending on the treaty, extradition may also be denied on the basis of a number of procedural
considerations. Double punishment and/or double jeopardy (also know as non bis in idem) clauses
are among these. The more historic clauses are likely to bar extradition for a second prosecution
of the “same acts” or the “same event” rather than the more narrowly drawn “same offenses.” The
new model limits the exemption to fugitives who have been convicted or acquitted of the same
offense and specifically denies the exemption where an initial prosecution has simply been
abandoned.
Lapse of time or statute of limitation clauses are prevalent as well. Many states preclude
extradition if prosecution for the offense charged, or enforcement of the penalty, has become
barred by lapse of time under the applicable law. Under some treaties the applicable law is that of

the requested state, in others that of the requesting state; under some treaties extradition is
precluded if either state’s statute of limitations has run. When a treaty provides for a time-bar
only under the law of the requesting state, or only under the law of the requested state, United
States courts have generally held that time-bar of the state not mentioned does not bar extradition.
If the treaty contains no reference to the effect of a lapse of time neither state’s statute of
limitations will be applied. Left unsaid is the fact that some treaties declare in no uncertain terms
that the passage of time is no bar to extradition. In cases governed by American law and in
instances of American prosecution following extradition, applicable statutes of limitation and due
process determine whether pre-indictment delays bar prosecution and speedy trial provisions
govern whether post-indictment delays preclude prosecution.

A foreign country usually begins the extradition process with a request submitted to the State
Department sometimes including the documentation required by the treaty. The Secretary of
State, at his or her discretion, forwards the matter to the Department of Justice to begin the
procedure for the arrest of the fugitive. The United States Attorneys Manual encapsulates the
Justice Department’s participation thereafter in these words: “OIA [Office of International
Affairs] reviews ... requests for sufficiency and forwards appropriate ones to the district where the
fugitive is found. The Assistant United States Attorney assigned to the case obtains a warrant and
the fugitive is arrested and brought before the magistrate judge or the district judge. The
government opposes bond in extradition cases. A hearing under 18 U.S.C. 3184 is scheduled to
determine whether the fugitive is extraditable. If the court finds the fugitive to be extraditable, it
enters an order of extraditability and certifies the record to the Secretary of State, who decides
whether to surrender the fugitive to the requesting government. In some cases a fugitive may
waive the hearing process. OIA notifies the foreign government and arranges for the transfer of
the fugitive to the agents appointed by the requesting country to receive him or her. Although the
order following the extradition hearing is not appealable (by either the fugitive or the
government), the fugitive may petition for a writ of habeas corpus as soon as the order is issued.
The district court’s decision on the writ is subject to appeal, and extradition may be stayed if the
court so orders.”
The precise menu for an extradition hearing is dictated by the applicable extradition treaty, but a
common check list for a hearing conducted in this country would include determinations that 1.
There exists a valid extradition treaty between the United States and the requesting state; 2. The
relator is the person sought; 3. The offense charged is extraditable; 4. The offense charged
satisfies the requirement of double criminality; 5. There is probable cause to believe the relator
committed the offense charged; 6. The documents required are presented in accordance with
United States law, subject to any specific treaty requirements, translated and duly authenticated;
and 7. Other treaty requirements and statutory procedures are followed.
An extradition hearing is not, however, in the nature of a final trial by which the prisoner could be
convicted or acquitted of the crime charged against him. Instead, it is essentially a preliminary
examination to determine whether a case is made out which will justify the holding of the accused
and his surrender to the demanding nation. The judicial officer who conducts an extradition

hearing thus performs an assignment in line with his or her accustomed task of determining if
there is probable cause to hold a defendant to answer for the commission of an offense.
The purpose of the hearing is in part to determine whether probable cause exists to believe that
the individual committed an offense covered by the extradition treaty. The individual may offer
evidence to contradict or undermine the existence of probable cause, but affirmative defenses that
might be available at trial are irrelevant. The rules of criminal procedure and evidence that would
apply at trial have no application. Hearsay is not only admissible but may be relied upon
exclusively; the Miranda rule has no application; initiation of extradition may be delayed without
regard for the Sixth Amendment right to a speedy trial or the Fifth Amendment right of due
process; nor does the Sixth Amendment right to the assistance of counsel apply. Due process,
however, will bar extradition of informants whom the government promised confidentiality and
then provided the evidence necessary to establish probable cause for extradition.
Moreover, extradition will ordinarily be certified without examining the requesting country’s
criminal justice system or taking into account the possibility that the extraditee will be mistreated
if returned.
If at the conclusion of the extradition hearing, the court concludes there is some obstacle to
extradition and refuses to certify the case, the requesting government’s recourse to an unfavorable
disposition is to bring a new complaint before a different judge or magistrate, a process it may
reiterate apparently endlessly. If the court concludes there is no such obstacle to extradition and
certifies to the Secretary of State that the case satisfies the legal requirements for extradition, the
fugitive has no right of appeal, but may be entitled to limited review under habeas corpus.

The laws of the country of refuge and the applicable extradition treaty govern extradition back to
the United States of a fugitive located overseas. The request for extradition comes from the
Department of State whether extradition is sought for trial in federal or state court or for
execution of a criminal sentence under federal or state law. The Justice Department’s Office of
International Affairs must approve requests for extradition of fugitives from federal charges or
convictions and may be asked to review requests from state prosecutors before they are
considered by the State Department.
The first step is to determine whether the fugitive is extraditable. The Justice Department’s
checklist for determining extraditability begins with an identification of the country in which the
fugitive has taken refuge. If we have no extradition treaty with the country of refuge, extradition
is not a likely option. When there is a treaty, extradition is only an option if the treaty permits
extradition. Common impediments include citizenship, dual criminality, statutes of limitation, and
capital punishment. Many treaties permit a country to refuse to extradite its citizens even in the
case of dual citizenship. Whether the crime of conviction or the crime charged is an extraditable
offense will depend upon the nature of the crime and where it was committed. If the applicable
treaty lists extraditable offenses, the crime must be on the list. If the applicable treaty insists only
upon dual criminality, the underlying misconduct must be a crime under the laws of both the
United States and the country of refuge.

Where the crime was committed matters; some treaties will only permit extradition if the offense
was committed within the geographical confines of the United States. Timing also matters. The
speedy trial features of U.S. law require a good faith effort to bring to trial a fugitive who is
within the government’s reach. Furthermore, the lapse of time or speedy trial component of the
applicable extradition treaty may preclude extradition if prosecution would be barred by a statute
of limitations in the country of refuge. Some treaties prohibit extradition for capital offenses;
more often they permit it but only with the assurance that a sentence of death will not be
executed.
Prosecutors may request provisional arrest of a fugitive without waiting for the final preparation
of the documentation required for a formal extradition request, if there is a risk of flight and if the
treaty permits it. The Justice Department encourages judicious use of provisional arrest because
of the pressures that attend it. If the Justice Department approves the application for extradition,
the request and documentation are forwarded to the State Department, translated if necessary, and
with State Department approval forwarded through diplomatic channels to the country from
whom extradition is being sought.
The treaty issue most likely to arise after extradition and the fugitive’s return to this country is
whether the fugitive was surrendered subject to any limitations such as those posed by the
doctrine of specialty.
Under the doctrine of specialty, sometimes called speciality, a person who has been brought
within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only
be tried for one of the offences described in that treaty, and for the offence 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. The limitation, expressly included in many
treaties, however, is designed to preclude prosecution for different substantive offenses and does
not bar prosecution for different or additional counts of the same offense. And some courts have
held that an offense whose prosecution would be barred by the doctrine may nevertheless be
considered for purposes of the federal sentencing guidelines, or for purposes of criminal
forfeiture. At least where an applicable treaty addresses the question, the rule is no bar to
prosecution for crimes committed after the individual is extradited.
The doctrine may be of limited advantage to a given defendant because the circuits are divided
over whether a defendant has standing to claim its benefits. Regardless of their view of fugitive
standing, they agree that the surrendering state may subsequently consent to trial for crimes other
than those for which extradition was had.

The existence of an extradition treaty does not preclude the United States acquiring personal
jurisdiction over a fugitive by other means, unless the treaty expressly provides otherwise.

Waiver or “simplified” treaty provisions allow a fugitive to consent to extradition without the
benefit of an extradition hearing.
Whether by a process similar to deportation or by simple expulsion, the United States has had
some success encouraging other countries to surrender fugitives other than their own nationals
without requiring recourse to extradition. Ordinarily, American immigration procedures, on the
other hand, have been less accommodating and have been called into play only when extradition
has been found wanting. They tend to be time consuming and usually can only be used in lieu of
extradition when the fugitive is an alien. Moreover, they frequently require the United States to
deposit the alien in a country other than one that seeks his or her extradition. Yet in a few
instances where an alien has been naturalized by deception or where the procedures available
against alien terrorists come into play, denaturalization or deportation may be considered an
attractive alternative or supplement to extradition proceedings.
American use of “irregular rendition” is a familiar alternative to extradition. An alternative of last
resort, it involves kidnapping or deceit and generally has been reserved for terrorists, drug
traffickers, and the like. Kidnapping a defendant overseas and returning him to the United States
for trial does not deprive American courts of jurisdiction unless an applicable extradition treaty
explicitly calls for that result. The individuals involved in the abduction, however, may face
foreign prosecution, or at least be the subject of a foreign extradition request. Moreover, the effort
may strain diplomatic relations with the country from which the fugitive is lured or abducted.
A final alternative when extradition for trial in the United States is not available is trial within the
country of refuge. The alternative exists primarily when extradition has been refused in because
of the fugitive’s nationality and/or where the crime occurred under circumstances that permit
prosecution by either country for the same misconduct. The alternative can be cumbersome and
expensive and may be contrary to U.S. policy objectives.
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