Extradition

Extradition is the process through which an individual held by one country is transferred to another country to face criminal prosecution or serve a criminal sentence. In the United States, extradition is possible only pursuant to a valid extradition treaty; in the absence of such a treaty, the government has neither the right to demand extradition of an individual from a country nor the right or obligation to extradite an individual to that country. The United States has valid extradition treaties with most countries; notable exceptions include Afghanistan, Russia, Saudi Arabia,

and China. There are two substantive requirements for extradition. First, the offense for which extradition is requested must be an extraditable offense under the relevant treaty. Most extradition treaties include an exhaustive list of extraditable offenses. Others provide that all offenses of a certain severity—those that qualify as felonies, for example—are extraditable.

Second, the offense for which extradition is sought must be criminal under the laws of both the United States and the other country. This ‘‘dual criminality’’ requirement is designed to ensure that extradition is granted only for offenses that are considered serious by both countries.

Even if these requirements are met, there are a number of exceptions to extradition. The most controversial is what is known as the ‘‘political offense’’ exception, which prohibits the United States and its extradition partners from extraditing individuals whose offenses were either directed specifically at the government, such as treason and espionage, or involved a common crime like murder that was ‘‘so connected with a political act that the entire offense is regarded as political.’’ Courts have used the political offense exception, for example, to refuse to extradite members of the Irish Republican Army (IRA) to the United Kingdom.

The nature of the applicable punishment can also serve as a ground for denying extradition. A number of treaties preclude extradition for offenses for which the requesting country can impose the death penalty. Such a provision permitted France to refuse to extradite Ira Einhorn, the ‘‘Unicorn Killer,’’ to the United States until U.S. authorities promised not to execute him if convicted. (He was finally extradited to the United States in July 2001 to face trial for a 1977 murder.)

Individuals in the United States for whom extradition is sought are entitled to a hearing before a neutral magistrate. The magistrate’s only responsibility, however, is to determine whether the charged offense is extraditable under the relevant treaty and, if it is, whether there is probable cause to believe the individual committed the offense. The extradition hearing is not a full trial; the normal rules of evidence do not apply, and the individual does not have an absolute right to confront the witnesses against him, call his own witnesses, or even introduce evidence that contradicts the prosecution’s evidence. Moreover, the magistrate cannot take into account the treatment that the individual will receive in the requesting country.

If the magistrate determines that the individual is extraditable, the secretary of state retains the authority to deny extradition, and can deny extradition on humanitarian grounds. If the magistrate determines that the individual is not extraditable, however, the secretary cannot reverse the magistrate’s decision.

KEVIN JON HELLER

References and Further Reading

• Bassiouini, M. Cherif. International Extradition: United States Law and Practice. New York: Oceana Publications, 2002.
• Bush, Jonathan A., How Did We Get Here? Foreign Abduction After Alvarez-Machain, Stanford Law Review 45 (1993): 3:939–83.