Interstate Rendition Under the Uniform Criminal Extradition Act
| Publication year | 1977 |
| Pages | 2134 |
1977, December, Pg. 2134. Interstate Rendition Under the Uniform Criminal Extradition Act
Extradition is the surrender by one state ("asylum state") or nation to another ("demanding state") of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other, which being competent to try, and punish him, demands his surrender.(fn1) Technically, the word "extradition" characterizes the arrest and surrender of individuals between nations; and "interstate rendition" properly expresses the arrest and surrender of individuals on an interstate basis.(fn2) Nevertheless, "interstate rendition" is commonly referred to as "extradition" or "interstate extradition," and these terms will be used interchangeably in this article.
International extradition is based on treaty stipulations and international comity, whereas interstate extradition is governed by the United States Constitution, federal legislation and effectuating state statutes.(fn3) Colorado adopted its effectuating legislation, the Uniform Criminal Extradition Act, on April 1, 1953.
This article is concerned with the principles of law governing interstate rendition under the uniform act. It is intended to guide the practitioner through the extradition process, from the time of the accused's arrest to his appeal to the Colorado Supreme Court.
Extradition statutes must be strictly construed as they are in derogation of the common law.(fn4) However, they should not be so narrowly construed as to enable offenders against the laws of a state to find permanent asylum in another state.(fn5)
The extradition process is usually initiated by the prosecuting attorney in the county wherein the person sought is charged with a crime. The prosecuting attorney makes out an application for requisition which, attached to the supporting documents, is delivered to the governor of the demanding state. When the person sought has been convicted of a crime and has escaped from confinement or broken the terms of his bail, probation or parole, the parole board, or the superintendent of the institution or sheriff of the county from which the escape was made also have authority to present an application for requisition to the governor.(fn6)
After the papers arrive at the governor's office of the demanding state, the application for requisition and supporting documents are examined by a
Once more, the legal sufficiency of the extradition papers is checked by a member of the attorney general's staff in the asylum state. When the papers are approved as to form, the governor of the asylum state issues his warrant for the arrest of the person demanded. All of the aforementioned documents are then forwarded to the court having jurisdiction over the person sought.
A judge, before whom a sworn charge or complaint and affidavit has been made, may issue a warrant for the arrest of any person within this state who is charged with any crime in any other state.(fn9) A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued must be attached to the warrant and served upon the accused.(fn10) This warrant, commonly known as a "fugitive warrant," is directed to any peace officer and commands him to apprehend the fugitive, wherever found in the state, and bring him before any judge or court available in or convenient to the place where the arrest was made, to answer the charge or complaint and affidavit.(fn11)
A peace officer or private citizen may arrest a person, without a warrant, "upon reasonable information" that he is charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year.(fn12) Once such an arrest is made, the accused must be brought before a judge "with all practicable speed," and a complaint must be made under oath setting forth the grounds for his arrest.(fn13) The accused's answer is then heard as if he had been arrested on a warrant.(fn14)
As previously stated, the accused, after his arrest, must be taken before a judge. The judge will examine him and if it appears from the examination that he is the person charged with having committed the crime alleged, the judge will by a warrant reciting the accusation, commit him to the county jail for a specified period not to exceed thirty days, unless he posts bail.(fn15) If the governor's warrant does not arrive by the expiration of the time specified in the warrant or bond, the district court judge may, in his discretion, discharge the accused or recommit him or continue his bond for an additional period, not to exceed sixty days.(fn16) There is no extension of time beyond the sixty-day period and the accused must be released if the governor's warrant has not arrived by that time.(fn17)
The accused is entitled to have bail set by the court (in a reasonable amount) unless the offense charged in the demanding state is punishable in that state by death or life imprisonment.(fn18) The district court must give the district attorney and the person or authority holding the accused reasonable notice of the application for bail.(fn19) The bond must be conditioned upon the accused's surrender to the governor's warrant.(fn20) The accused is not entitled to be admitted to bail after the governor's warrant has been served and pending the outcome of a habeas corpus petition in the district court.(fn21) If the person
The fugitive may waive all formal extradition process by signing, before a judge of a court of record, a writing which states that he consents to return to the demanding state.(fn23) For such consent to be valid, the judge must first inform the fugitive of his rights to issuance and service of the governor's warrant and his right to obtain a writ of habeas corpus.(fn24) The judge then directs the officer having the fugitive in custody to deliver the fugitive, along with a copy of the consent, "forthwith" to the agents of the demanding state.(fn25)
A state proceeds in extradition in either of two ways: (1) by making a demand upon another state for the return of a fugitive from justice; or (2) by making a demand upon the asylum state for the surrender of a person chrarged in the demanding state with having committed an act in the asylum state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand.(fn26) The first type is commonly called a "fugitive extradition," and is made under the authority of the Constitution(fn27) and laws of the United States,(fn28) and C.R.S. 1973, § 16-19-103. The second type is usually referred to as a "non-fugitive extradition" and is governed by the provisions of C.R.S. 1973, § 16-19-107.
A fugitive is one who is charged with "treason, felony or other crime"(fn29) in one state, and who goes into another state.(fn30) Thus, contrary to popular belief, a person can be extradited for a misdemeanor.(fn31) It should be emphasized, however, that the person demanded must be charged with a crime before he can be extradited. Therefore, a person held in contempt of court in Colorado could not be extradited, since contempt is not classified as a crime.
The courts have agreed that the word "charged" as used in the extradition statutes should not be given a narrow or strained construction.(fn32) Even after conviction, a person remains charged with a crime, within the meaning of the Uniform Criminal Extradition Act, so long as his judgment of conviction remains unsatisfied.(fn33) Therefore, a convicted individual may be extradited as a fugitive when, prior to the revocation of his probation or parole, he goes to another state.(fn34) The paroled prisoner is declared to be a fugitive from justice on the ground that he is a convict whose judgment of conviction has not expired and who, therefore, is charged with a crime.(fn35) Whether a person convicted of a crime has in fact violated his parole or probation is of no concern in the courts of the asylum state.
The phrase "fled from justice" has generally been interpreted to cover individuals who are merely absent from the state when they are sought to answer for a crime.(fn36) A person's motive or reason for leaving the demanding state is immaterial in an extradition proceeding.(fn37) Numerous courts have held that the in-voluntariness of the person's removal to the asylum state does not prevent him from being subject to...
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