114.1Extradition

Overview

Extradition refers to the process by which a person accused of a crime in one state may be taken into custody in another state and transferred back to the charging state. Technically, “extradition” refers to the process of returning a fugitive from one country to another, whereas “rendition” more accurately describes the process that occurs between two states. In practice, however, the term “extradition” is routinely used to describe state transfers. Extradition is a complex topic, and this entry is only intended to provide a brief overview of the many legal issues and basic procedures involved in extradition cases. Prosecutors who frequently handle extradition cases are encouraged to read Robert Farb’s State of North Carolina Extradition Manual (2013), which can be ordered in paper format here.

Applicable Statutory Law

To ensure the return of defendants who leave the state (hereafter “fugitives”), North Carolina has entered into the Uniform Criminal Extradition Act. See G.S. 15A-721 through 15A-750. (The return of juveniles from another state is governed by similar process under the Interstate Compact for Juveniles. See G.S. 7B-4000 through -4002 and the related Juvenile entry - ICJ.)

Under the Uniform Criminal Extradition Act, the Governor of North Carolina agrees to extradite any person charged with a crime in another state who has fled from justice and is found in this state. Other states that have adopted the Act likewise agree to return those accused of crimes in North Carolina back to this state. Therefore, whether a fugitive is arrested in North Carolina for an offense committed in another state, or arrested in another state for an offense committed in North Carolina, the process for effecting their return is substantially the same. 

In most cases, the arresting state is not called upon to make independent evaluations such as whether probable cause for the charge exists; instead, the only determinations to be made are: (i) whether the person is charged with a qualifying crime in the other state; and (ii) whether the detained person is, in fact, the person so charged. If the fugitive does not agree to waive extradition and voluntarily return to the charging state, then formal extradition proceedings (i.e., Governor’s Warrant and a hearing) will be required.

Crimes Subject to Extradition

Any person charged with a crime in North Carolina who flees to another state is subject to extradition, as well as any person convicted of a crime in North Carolina who escapes custody or flees supervision. However, per G.S. 15A-744, the state only pays the expenses for a fugitive charged with a felony or who has fled from probation, parole or post-release supervision for any crime (felony or misdemeanor). In other cases, such as a misdemeanor fugitive, the county must pay the costs. Extradition may also be sought for non-fugitives (i.e., a co-conspirator who lives out of state), but extradition of that fugitive will be discretionary with the governor of the other state.

Before seeking extradition on certain offenses, prosecutors are obligated to consider not only the potential costs but also whether the matter can be handled through alternative means, such as a civil remedy in lieu of criminal charges. The table below summarizes several common offenses in which civil remedies or additional factors must be considered before seeking extradition:

Taking the Fugitive Into Custody

Before taking a fugitive into custody, the officer should first swear out a North Carolina warrant for arrest, and provide the magistrate with a basis for finding probable cause to believe the person is charged in the other state and subject to arrest. See AOC-CR-910M (Warrant for Arrest for Fugitive); AOC-CR-911M (Fugitive Affidavit). It is preferable to obtain the warrant beforehand whenever possible, but a magistrate’s order may also be obtained after the fugitive is taken into custody, as long as the offense is punishable by death or imprisonment exceeding one year. See AOC-CR-909M (Magistrate’s Order for Fugitive). A copy of the paperwork or records showing the existence of the charge in the other state should be attached to the affidavit or order.

Though rare, it is also possible that an officer may arrest a fugitive who is not yet charged in the other state.  For example, this could occur if a person commits a crime in a neighboring state and then flees to North Carolina before charges are filed. In such a circumstance, before arresting the person, the local officer must first obtain an arrest warrant from the magistrate using the standard warrant form (AOC-CR-100), but including the name of the crime in the other state and a citation to the other state’s statute, if known. Since no warrant has yet issued in the other state, the applying officer must provide the magistrate with sufficient probable cause to believe the fugitive committed the crime, just as he or she would with a typical arrest warrant for any other crime committed within the state. As soon as an arrest warrant is issued in the state of offense, the officer should obtain a copy of that state’s warrant and attach it to the North Carolina warrant. The rest of the process (appearance before a magistrate, etc.) will then continue normally as described below.

Appearance Before a Magistrate

Once taken into custody, the fugitive will be taken before the magistrate like any other arrestee. The magistrate will inform the fugitive of the charges, and determine whether the person must remain in custody or is eligible for bail. No bail is permitted if the person is charged with an offense punishable by death or life imprisonment. G.S. 15A-736. Otherwise, bail is generally permitted, but it must be “bail by bond, with sufficient sureties” to ensure the fugitive’s appearance in court or surrender for extradition upon subsequent issuance of a Governor’s Warrant. Id. Note that bail is not permitted when (i) a Governor’s Warrant has already been issued (see below); (ii) the fugitive already executed a waiver of extradition (such as a parolee); or (iii) the person was transferred to North Carolina under the Interstate Compact for Adult Offender Supervision (this is a distinct process from extradition – see below). Next, the magistrate will schedule the fugitive’s appearance in district court. If the person is held in custody, that will be set for the next available session of district court. If the person is released on bail, the court appearance can be set out up to 30 days, but in practice it is usually still set for the next available session of court, to help expedite the rest of the process.

District Court Proceedings

At the first district court hearing, the judge will again inform the fugitive of the charges against him, ensure that he or she has a copy of the arrest warrant or magistrate’s order, review the bail determination, and decide whether it is necessary to appoint counsel. A fugitive has a statutory right to counsel at extradition proceedings. See G.S. 7A-451(a)(5) (appointed counsel must be provided to indigent person whose extradition to another state is sought); cf. State v. Taylor, 354 N.C. 28 (2001) (Sixth Amendment right to counsel did not attach to out-of-state extradition proceedings; adversary criminal judicial proceedings had not yet commenced).

The fugitive will be given a choice: he may either waive formal extradition by completing form AOC-CR-912M, or request formal extradition proceedings.

Extradition Waived

If the fugitive waives extradition, he will be turned over to an agent from the other state for transport back to the charging state. An agent from the charging state should make arrangements to take custody of the fugitive at the earliest possible date after receiving notice that the fugitive is ready to be surrendered. Federal law (18 U.S.C. § 3182) indicates that fugitives may remain in custody up to 30 days to await pickup, although local jurisdictions may require the agents to arrive more quickly. If not picked up within 30 days, the fugitive may apply for a writ of habeas corpus demanding release.

Formal Extradition

If the fugitive does not waive extradition, he will be ordered held (or continued on bail, if eligible) for up to 30 days to await issuance of a formal Governor’s Warrant (see Section G, below). At the conclusion of the first 30 days, the fugitive will be returned to court to determine whether a Governor’s Warrant has been issued. If it has not, the matter may be continued for up to 60 additional days. G.S. 15A-735, 737. The fugitive may elect to waive extradition at any time during this process. A waiver of extradition can be completed before the judge of any court or before a clerk of superior court. G.S. 15A-746. If no Governor’s Warrant has been issued by the time of the first follow-up hearing, the prosecutor should make inquiries to ensure that a Governor’s Warrant is being diligently pursued. If no Governor’s Warrant is issued within 90 days of the initial hearing, the judge may dismiss the case.

Once a Governor’s Warrant is issued, the fugitive must be given a hearing before being delivered over to the agent of the demanding state. See G.S. 15A-730. A fugitive released on bail must surrender or be taken back into custody upon issuance of a Governor’s Warrant. The majority view, and the opinion of North Carolina's Attorney General, is that no bail is allowed once a Governor’s Warrant has issued. See 50 N.C. Op. Atty. Gen. 40 (1980). The judge will inform the fugitive that the other state has issued a formal demand for his return and advise him or her of the charged crime, his or her right to counsel if indigent, and that he or she has a ‘reasonable time’ (10 days is usually sufficient) to apply for habeas corpus relief.

If the fugitive does not apply for a habeas corpus hearing within the allotted time, then the district court judge will order the fugitive turned over to agents of the other state pursuant to the Governor’s Warrant.  Once he or she is picked up, the matter is closed. As noted in the discussion of waivers above, federal law (18 U.S.C. § 3182) indicates that fugitives may remain in custody for up to 30 days awaiting transport, but if agents from the other state do not pick up the fugitive within that time, the fugitive may apply for a writ of habeas corpus demanding release.

If a fugitive against whom a Governor’s Warrant has issued petitions for a writ of habeas corpus, the matter must be heard in superior court.

Superior Court – Habeas Corpus Hearing

A person objecting to his or her extradition generally must file a petition for writ of habeas corpus in the state from which he or she is being extradited. See Michigan v. Doran, 439 U.S. 282 (1978); State v. Mourning, 4 N.C. App. 569, 572 (1969) (“[T]he regularity of extradition proceedings may be attacked only in the asylum state; after an alleged fugitive has been delivered into the jurisdiction of the demanding state, the proceedings may not be challenged.” (citation omitted)); see also State v. Speller, 345 N.C. 600 (1997) (declining to reach issue of whether asylum state complied with Uniform Extradition Act in obtaining waiver of extradition from defendant). The issues that may be raised at a habeas proceeding are quite limited, and generally restricted to:

1. Whether the demand for extradition was made in proper form;
2. Whether the accused is the person sought;
3. Whether the accused has been charged with a criminal offense in the demanding state;
4. Whether the accused is a fugitive; and
5. Whether the accused’s statutory right to counsel in the asylum state was honored (if the asylum state gives a right to counsel).

See California v. Sup. Ct. of Cal., 482 U.S. 400 (1987); Doran, 439 U.S. at 289. Other than the limited questions listed above, other issues such as the state’s motive in seeking the fugitive’s return or the likelihood of receiving a fair trial in the charging state are not relevant to the hearing. Dodd v. State, 56 N.C. App. 214 (1982).

A Governor’s Warrant is presumed valid, and the burden is on the fugitive to disprove the allegations by clear and convincing evidence. People ex rel. Harris v. Warden, 345 N.Y.S.2d 29 (App. Div. 1973). The fugitive must present conclusive evidence against the allegations; “a court will not discharge a person detained where there is merely contradictory evidence on the subject of his presence in or absence from the demanding State.” People ex rel. Garner v. Clutts, 170 N.E.2d 538 (Ill. 1970); State ex rel. Zack v. Kriss, 74 A.2d 25 (Md. 1952). A judgment denying a habeas corpus petition is a final judgment of the superior court, and the fugitive may file a writ of certiorari to the court of appeals requesting review. (The state may also file a writ of certiorari, asking the court of appeals to review a judgment granting a writ.) Either the superior court or the court of appeals may issue a stay to allow the court of appeals to hear the fugitive’s appeal.

Obtaining a Governor’s Warrant

If the fugitive does not waive extradition, a Governor’s Warrant is required to transfer him back to the requesting state. In short, this means the prosecutor in the requesting state prepares an application for requisition (including a copy of the arrest warrant or indictment, application, certification, affidavit, photograph and fingerprints of fugitive, and copies of statute fugitive is charged with violating), which the Governor’s counsel (typically the Attorney General) reviews and then presents to the Governor for signature and agent’s commission. In the receiving state, the request is again reviewed for sufficiency (typically by that state’s Attorney General), and then presented to the receiving Governor for issuance of a warrant.

In North Carolina, requests for Governor’s Warrants from other states are reviewed by the Attorney General’s Office to ensure they are legally sufficient before being presented to the Governor for signature and issuance of a warrant. The Attorney General’s office does not evaluate the merits of the underlying case; rather, the office only ensures that the application documents are in order and verifies that the fugitive is actually charged by that state, and that he or she is the same person so charged. The general rule is that the fugitive is not entitled to a hearing before a Governor’s Warrant issues. See Application of Dugger, 497 P.2d 413 (Ariz. App. 1972); Horne v. Wilson, 306 F. Supp. 753 (E.D. Tenn. 1969); Scheinfain v. Aldredge, 12 S.E.2d 868 (Ga. 1941). If a fugitive has pending charges in the arresting state at the time that another state is requesting his return, the governor in the arresting state has discretion to either surrender the fugitive to the requesting state, or hold him until he has been tried, convicted, and punished in this state. G.S. 15A-739.

To request a Governor’s Warrant from another state, the prosecutor will need to complete the appropriate forms and submit a request packet to the Extradition Secretary at the Attorney General’s office for review and presentation to the Governor. The instructions, contact information, and key forms can be located here: GOV.Inst (Instructions and Contact Information); GOV.1 (Application for Requisition); GOV.1-A (Certificate of Magistrate); GOV.1-B (Certificate-Warrant and Affidavit); GOV.1-C (Certificate-Indictment); GOV.2 (Application for Requisition After Conviction); GOV.2-A (Certificate for GOV.2); GOV.2-B (Certificate-Notary); GOV.2-C (Affidavit-Escapee); GOV.3 (Certificate for GOV.1 and GOV.2).

Scope of Jurisdiction

If a person is returned to North Carolina for trial on one charge, he or she may be tried for any other crimes that the person allegedly committed in this state. See G.S. 15A-748. However, the person may not be served with civil process for any action arising out of the same facts that gave rise to the crime until the person has been convicted in the criminal proceeding or, if acquitted, has had a reasonable opportunity to return to the state from which he or she was extradited. See G.S. 15A-745.

If the defendant voluntarily returns to North Carolina and is taken into custody, North Carolina obtains personal jurisdiction and may proceed with the criminal prosecution. See State v. Speller, 345 N.C. 600 (1997) (defendant’s “voluntary return to the state conferred jurisdiction on the Superior Court, Richmond County, as fully and effectively as a Governor's warrant pursuant to section 15A-742 would have. We therefore hold that the Superior Court, Richmond County, properly exercised jurisdiction over this matter.”).

International Extradition

Extradition of a fugitive from a foreign country to North Carolina is more complex, and requires the assistance of the federal government. The extradition process will be governed by the particular terms of the treaty the U.S. has with the other country, and only certain offenses are extraditable. A detailed guide on international extradition from the Congressional Research Service can be found here. Prosecutors who wish to extradite a fugitive from another country should first contact the Department of Justice’s Office of International Affairs for specific guidance.