The doctrine of specialty: an argument for a more restrictive Rauscher interpretation After State v. Pang.

• Author: Thatcher, Hugh Chadwick
• Position: Extradition law

1. INTRODUCTION

   On January 5, 1995, four Seattle firefighters died fighting an arson fire.(1) Although the prime suspect, Martin Shaw Pang, was indicted in March of 1995, he did not enter into a plea agreement until February of 1998.(2) The three years between the indictment and plea were marked by Pang's flight to Rio de Janeiro, Brazil, his subsequent extradition to the United States, and a furious legal battle between his attorneys and the King County Prosecutor's Office over an element of extradition law known as the doctrine of specialty.(3)

   Although the United States sought Pang's extradition for arson and four counts of felony murder, the Federal Supreme Court of the United States of Brazil granted extradition only for the arson count.(4) Upon Pang's return to Seattle he moved to sever or dismiss the murder counts from the indictment, arguing that under the doctrine of specialty he could only be charged with those offenses for which extradition was granted.(5) The Supreme Court of the State of Washington agreed with Pang, noting that the extradition order was clear and unambiguous, and that Brazil did not otherwise consent to Pang's prosecution for the felony murder charges.(6) In so holding, the Pang court became one of the few courts to strictly follow the specialty doctrine and hold that an extradited person cannot be charged with offenses other than those for which the extradition was granted.(7)

   This Note examines how U.S. courts have weakened the specialty doctrine in treaty-based extradition to the United States. Although courts have consistently paid lip service to its vitality, the doctrine of a specialty has often been set aside to allow prosecution for additional offenses.(8) This Note examines the primary line of inquiry that has been used by courts to interpret the doctrine, and suggests that it is incorrect. A correct interpretation of the doctrine requires a presumption that the extradited person may not be charged with additional offenses.

   Part II of this Note will outline the doctrine of specialty and the role it plays in international extradition. Part III will present the development of the modern interpretation of the doctrine. Part IV will highlight the problems created by this loose interpretation using State v. Pang as a paradigm. Part V will present a more restrictive interpretation: when extradition is granted pursuant to treaty it should be presumed that the extradited person may not be prosecuted for additional offenses.(9)

2. EXTRADITION AND THE DOCTRINE OF SPECIALTY

   1. Extradition

      Extradition was first developed in ancient times as a tool to maintain the internal legal order of states.(10) As such, the focus of extradition was almost exclusively upon those persons who threatened a state's domestic legal order, including religious and political offenders.(11) Because the activities of common criminals did not typically impact the sovereign or public order, the extradition of these persons received low priority.(12)

      One prominent authority has identified four periods of extradition history:

      (1) ancient times to the seventeenth century--a period revealing an almost exclusive concern for political and religious offenders; (2) the eighteenth century and half of the 19th century--a period of treaty-making chiefly concerned with military offenders ...; (3) 1833 to 1948--a period of collective concern for suppressing common criminality; and (4) post-1948 ... which ushered in a greater concern for protecting human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations.(13) Modern extradition practice dates from the eighteenth century, when European states began to develop extradition as a tool to engender peaceful relations between states.(14) This practice developed further in the mid-to-late nineteenth century when states began to express a collective concern for suppressing criminal activity.(15) The United States did not extradite anyone during the eighteenth and first half of the nineteenth centuries because there was only one extradition treaty in force (with Great Britain) and Congress had failed to pass any legislation implementing the treaty or authorizing extradition in the absence of a treaty.(16) By comparison, in 1995, the United States had extradition treaties with 103 states.(17)

      Although contemporary extradition practice is still concerned with the enforcement of criminal law, extradition remains the exception rather than the rule in international relations.(18) This is in part because extradition is the antithesis to the traditional right of a nation-state to grant asylum or shelter from prosecution to any person within its territory.(19) However, because the majority of criminal activity is still regulated by the criminal law of individual states,(20) extradition is necessary to allow a state with jurisdiction over a crime to gain personal jurisdiction over an accused person not within its territorial jurisdiction.(21)

      The structure of international extradition emphasizes that it is an exception of limited application, Contemporary extradition practice holds that there is no duty to extradite in the absence of an extradition treaty.(22) Even when extradition is sought pursuant to a treaty, most states view extradition as within the discretion of the requested state.(23) Although the human rights theory of international relations advocates procedural safeguards in extradition to protect the rights of an extradited person, contemporary practice is predominantly influenced by realist international political theory and extradition is viewed as a process that protects the rights of states that are party to an extradition treaty.(24) In this framework, the rights of the accused are essentially those of the requested state and are strictly tailored to the specific protections granted in the particular treaty at issue.(25) Extradition terminology reflects this bias, as the state asking for extradition is the "requesting" state, the state of refuge is the "requested" state, and the subject of extradition is termed the "relator."(26)

   2. Treaty Interpretation

      "There is no part of the law of treaties which the text-writer approaches with more trepidation than the question of interpretation."(27) U.S. extradition law is statutorily based, but relies on bilateral treaties for the creation and activation of any duty to extradite.(28) As a result, there must typically be an extradition treaty before extradition proceedings may be commenced.(29) This is consistent with well-established principles of international law, which provide that a nation-state does not have an obligation to surrender a person from its territory to another state absent a treaty provision.(30) The absence of such an obligation is an extension of a state's absolute domestic sovereignty over all persons within its territory, which necessarily results in the exclusion of other states, and the creation of asylum for persons prosecuted elsewhere.(31) States have consistently asserted their right to extend asylum; absent a treaty, a state is under no obligation to forego granting asylum, of retract an offer of asylum.(32)

      Under the U.S. constitutional framework, treaties become part of U.S. domestic law, equivalent to statutes, and are subordinate only to the Constitution.(33) As such, treaties cannot authorize what the Constitution does not allow.(34) The Constitution provides that treaties are the law of the land, equal to Federal statutes in weight.(35) In the event that a statute conflicts with a treaty provision, the dates of enactment of the treaty and statute become dispositive; absent clear indication otherwise, a subsequently enacted statute will overrule an inconsistent treaty provision.(36) Although treaty creation (via negotiation and ratification) is an exclusive federal power allocated to the executive and legislature,(37) treaty interpretation is allocated to the judiciary.(38) An interpretation of a treaty by a federal court is binding upon the other branches of the federal government and the states.(39)

      Federal and state courts have not utilized uniform and systematic methods to interpret treaties,(40) and a few courts have added to the confusion by utilizing international treaty interpretation methods as set forth in the Vienna Convention on the Law of Treaties.(41) Courts tend to use particular interpretive methods as guides rather than as obligatory legal norms.(42) Although the type of international agreement may have an impact on which interpretive method a court applies,(43) most courts utilize a combination of textual and intent-oriented analysis.(44)

      1. Textual Approach

         As suggested by the name, courts using a textual approach to analyze a treaty initially look to the text of the treaty to ascertain the plain meaning of the words.(45) If the text of the treaty is clear, no other interpretive methods may be used.(46) However, if the language is susceptible to more than one meaning, a court will move beyond the text of the treaty.(47) In determining how the language of the text is to be construed, the context of the language is considered.(48) Moreover, a court may also disregard the plain meaning of the text if the plain meaning results in a reading inconsistent with the intent or expectations of the party states.(49)

      2. Intent-Oriented Approach

         The intent-oriented approach requires the court to interpret the treaty in a manner that effectuates the intentions of the parties.(50) If the intent is not clear from the language of the text, then courts may look to extrinsic sources for evidence of the parties' intent.(51) Two extrinsic sources that have been used by courts include the negotiating history of the agreement and subsequent practice by parties under the treaty.(52)

      3. Application of Interpretive Methods

         Both of the above methods are used and blended with each other by courts seeking to properly...