What is Waiving Extradition?
Waiving extradition, in legal terms, refers to the process by which a state or jurisdiction relinquishes its right to extradite an individual to face criminal charges in a requesting state. Extradition is a formal process by which the legal jurisdiction in which an alleged crime has been committed requests the transfer of a fugitive or individual charged with a crime in order to hold him or her accountable for an alleged violation of the law, and the governments involved typically have a formal agreement that establishes the protocols for handling extradition requests according to international law. Extradition proceedings are typically conducted through a preliminary hearing before a judge or magistrate, and if it is determined that sufficient evidence of probable cause exists to hold an individual accountable for the alleged crimes, then a request is made for the extradition of that person to the country or state requesting it. If the individual agrees to extradition and waives his or her rights , extradition is granted and the individual is sent back to the requesting state. As a result, agreeing to waive extradition is often seen as the easiest way for an individual facing certain criminal charges abroad to avoid arrest and charges. However, it is worth noting that individuals can choose to waive extradition even if the evidence is highly unlikely to support a conviction. Sometimes an accused person might be better off risking extradition than standing a trial abroad due to the severity of the charges he or she is facing. In some cases, the person agreeing to waive extradition might discover that the legal system abroad is more sympathetic to foreigners charged with crimes than those charged with them on their home soil. It is also possible to waive extradition even if it puts you under the local jurisdiction, even if the charges against you are false. Under international law, a person seeking to waive extradition must do so at the local level, and cannot be coerced into doing so through undue pressure once extradition has begun.
Legislation Surrounding Extradition
The legal framework governing extradition is governed at both the international and domestic level. At the international level, there are multiple treaties and agreements that dictate the extradition process in certain circumstances. For example, the United Nations Convention against Corruption (UNCAC) has a variety of articles that govern the extradition and mutual legal assistance requirements in matters not limited to anti-corruption.
At the domestic level, the scope of extradition is limited to certain countries with whom the United States has treaties. The U.S. Department of Justice’s (DOJ) Office of International Affairs provides information on extradition treaties that the United States has with several countries, including the United Kingdom, Mexico, Canada, the Bahamas, Haiti, Antigua and Barbuda, and Jamaica. In addition to the extradition treaties, the Chapter of the United States Code that governs extradition has multiple statutory safeguards and requirements on the extradition process. See 18 U.S.C. §§3181-3195. Among these, one of the most important is the requirement that an extradition treaty clearly have a provision that allows for extradition for offenses in both countries. See Id. §3181. One exception to this "dual criminality rule" is that many of the extradition treaties explicitly exclude expenditure for "tax offenses," which generally include "defalcation of public funds or public trial fraud . . . for national revenue." U.S. Dep’t of Justice, Extradition, Treaties on Extradition, H-115: Extradition Treaties and Letters Rogatory (A-11.8), at 31 (Sept. 2000, updated Aug. 2017). A list of all of the Extradition Treaties is available at: https://www.justice.gov/criminal-ccips/page/file/1248386/download.
To extradite someone, at the statutory and treaty level, the offense must be recognized as a crime in both jurisdictions, also known as "dual criminality". For this, 18 U.S.C. §3181(a) requires legal offenses to be defined according to either:
However, the treaty can control those parameters. See "Extradition Treaty Requested by the Government of the British Virgin Islands", 2 Op. Off. Legal Adv. 23, 1978 WL 31929 (January 11, 1978) (wherein the Department of State recognized that a treaty can override the statutory definition of the extradition treaty); cf. 18 U.S.C. §3181 ("Nothing in this chapter shall restrict the right of the United States or of any State or Territory thereof to entertain, or to determine in accordance with its law whether to entertain, a request for extradition by the government of another country").
Accused Rights When Extradited
Whether or not to waive extradition is a significant decision that should be made only after thorough consideration and after seeking the advice of legal counsel. An accused has certain rights that apply when he or she is facing extradition. The offender has the right to have the charges against him or her explained – including what the specific charges are in order to know exactly why he or she is being extradited. The individual also has the right to attend the extradition hearing in person or through legal counsel, in order to dispute the decision and voice any objections he or she may have with regard to the status of the extradition. The accused offender also has the right to a determination on whether the United States will be able to determine jurisdiction on the offense of conviction and allow for a transfer to the United States. The accused has the right to examination of country of alleged offense to determine if the offense is punishable by death or life in prison under that country’s laws. The offender also has the right to request that the requesting country provide assurance that the death penalty will not be sought and that the offender will not be charged with any other offenses, nor will the individual be extradited to another country. Finally, the accused has the right to trial in the jurisdiction in which the offense occurred.
Benefits of Waiving Extradition
As previously discussed, a person can waive extradition after being arrested. However, nothing is ever as simple as it sounds. It is important to weigh whether the extradition waiver will actually bring the benefits it promises.
Pro: You Can Avoid Prolonged Detention in a Foreign Country
One of the most obvious benefits of waiving extradition is that you can avoid spending time in a foreign country under the authority of a foreign government. If you have no intention of fighting your extradition from a foreign country, then you might find it in your best interests to waive extradition. Waiving extradition allows you to do so with the knowledge that you can immediately facilitate your return home. That said, this is not without its own risks. Once you return home, you may find it difficult to convince the potential court system that it’s best to limit or dismiss the charges against you.
Con: Returning Does Not Mean You’ll Be Cast Free
Even if you do complete a successful waiver of extradition and return home, prosecutors still retain the power to decide whether to extradite you to the third country. In many states, the conviction of an extradition request is enough to warrant your return to the foreign country. Once you return, you may be subject to punishment that is particularly severe for the original offense.
Pro: You Can Reduce the Risk of Extradition
You may be thinking, "I can return to the U.S. and skip extradition, what do I have to lose?" Keep in mind that some countries will find it in their best interests to delay your return to the U.S. and leave you in their custody. Wasting time is in the country’s best interest because they can treat you as they see fit until you return to the U.S. That’s why it’s in your best interest to waive extradition and return home, even if that means facing your former charges at home.
Con: You Still Face Justice
If you waive extradition and return to the U.S., you may be subject to initial appearances and multiple hearings typical of a foreign arrival in the U.S. However, these hearings tend to be more general than specific. That means judges are often reluctant to review the merits of the case. Although this incentivizes these judges to grant the extradition, it also means you would be subject to more delays after your arrival.
The best way to determine the benefits of waiving extradition and whether this is right for you is to immediately contact an international extradition lawyer. With such a high level of complexity and such serious potential repercussions, this is not something you will want to do without the help of an experienced attorney.
Legal Process Following a Waived Extradition
The next step once extradition is waived is that the parties need to agree upon a time and place for the individual to be transferred to the requesting jurisdiction. Typically, this request for a "voluntary surrender" is made to each person’s attorney. An extradition order by the District Attorney’s Office needs to be signed by a judge. Once all of these steps are completed, an extradition warrant will issue, at which time the person is transferred .
If the judicial system attempts to make the transfer at a scheduled time but the individual is not present, a capias will issue for contempt. If at any point while the extradition process is pending extradition is contested, the agreement is voided and a petition to dismiss the request is filed in the requesting state’s court. The extradition process is considered to be a civil proceeding. The defense of the individuals wanted by law enforcement in the other state may be criminal or civil.
Well-Known Waived Extradition Cases
Extradition waivers are often useful for defendants who do not want to be sent back to a different state or country to face felony charges. But sometimes, even this is not enough. In the 1995 case of United States v. Sousa, the defendant tried to avoid extradition to New Jersey by seeking a dismissal in the Massachusetts district court. He argued that the indictment from New Jersey was tainted and should thus be dismissed. The defendant based this claim on the Supreme Court’s decision in the case of Franks v. Delaware. He claimed that the search warrant used to obtain evidence from his car in Massachusetts was invalid because the police officer misrepresented the facts on the warrant application. In Franks v. Delaware, the Supreme Court held that – under the Fourth Amendment – if a defendant can show that a warrant was obtained by the misrepresentation or deception of law enforcement, and that there was no probable cause on the record without the correction, the evidence obtained during the execution of the search warrant will automatically be suppressed. Courts typically hold that all subsequent arrests and charges, including extradition, are based on the invalid search warrant, and therefore there is no probable cause to hold the defendant. Since the indictment against Sousa followed the search warrant, the defendant thought his extradition should be dismissed. The federal district court and the Massachusetts Court of Appeals quashed the indictment because the defendant claims that the search warrant was invalid. Sousa was never extradited back to New Jersey to face the initial indictment, but in 1996, he was indicted on new charges in New Jersey and is now currently in prison.
Lawyer Consultation Regarding Extradition
Primarily because extradition proceedings are so complex, and because these proceedings often occur under duress and in a compressed timeline, it’s important to be represented by an attorney who is highly experienced in extradition matters. Your lawyer should be an advisor and advocate not just during your request for extradition but also throughout the entire process. The best attorney for extradition cases is one who knows how to navigate your home country’s judicial procedure while also being experienced in extradition law and criminal law in the requesting country.
To locate an attorney who specializes in extradition, follow the advice listed here:
• Ask other attorneys who work in unrelated fields to recommend an extradition attorney with whom they have worked in the past .
• Research and consult an attorney based on his people skills. Make certain that you feel comfortable disclosing all facts and developments to your attorney.
• Have initial consultation meetings with at least two attorneys.
• In these consultations, ask questions to understand how the attorney anticipates extradition proceedings will unfold and what possible outcomes may be.
• Follow up with the attorney afterward to either accept or decline the offer of representation.
• Confirm that the lawyer you’ve selected works at a reputable firm that has adequate resources to devote to your case.
• Maintain communication with your attorney throughout the entire extradition process.