Extradition involves one nation handing over a fugitive to another nation based on legal reciprocity or a treaty signed by both nations. International law generally only requires a nation to surrender a fugitive to another nation if an applicable treaty exists. An extradition treaty between the United States and another nation reflects each nation's belief that the other's criminal justice system is fair enough to justify sending the person to stand trial in that country.

In the absence of a treaty, the United States may exercise legal reciprocity, which is known as comity, and turn over a person to a foreign nation who is not a citizen or permanent resident of the United States. Typically, legal reciprocity may only be exercised when the Attorney General certifies that sufficient evidence has been produced by the foreign nation that the alleged offense would constitute a crime of violence if committed in the United States. Federal authorities have no power to turn over a United States citizen to a foreign nation in the absence of a treaty unless a federal law authorizes it.

Generally, extradition treaties require that the person at issue be a fugitive. The wording of a treaty controls who can be extradited, but a fugitive is broadly defined as a person who is absent from a country when that country seeks to prosecute him for a crime. It is not necessary for the person to have intentionally fled in order to avoid charges, or that the person knew he had charges against him. Thus, intent on the part of the fugitive is generally not a factor in determining if extradition is legal. In addition, a person generally remains a fugitive until the demanding nation has dropped the charges against him.

Offenses for which a person may be extradited are determined by the wording of the treaty involved. If there are questions about the wording of the treaty, the asylum country generally determines whether a particular crime is covered. The offense must generally constitute a crime in both nations. The laws do not have to be carbon copies of each other, but the laws must be substantially analogous. The fact that the requesting nation lacks legal defenses or has a different burden of proof generally does not defeat extradition.

When a person is arrested in the United States and a foreign government seeks extradition, certain proceedings are held and the fugitive is entitled to a hearing before being extradited. The purpose of these proceedings is to determine whether the fugitive can be handed over to a foreign government seeking the fugitive. Prior to arrest, a federal magistrate judge will decide if the alleged crime falls under a treaty signed by the United States, and the judge may then issue a warrant for the fugitive to be apprehended and brought before the court.

Once the fugitive is before the court, the judge will decide if the evidence is sufficient to sustain the charge. This requires the court to make several determinations. First, the offense complained of must constitute a crime in the foreign country. Second, the person arrested for the offense must be the same person the foreign country seeks. Third, the offense that is charged must be included under the treaty. Fourth, the foreign government must demonstrate that there is probable cause to believe that the fugitive committed the crime. Probable cause is a relatively easy burden to prove, and circumstantial evidence is often enough for a court to find probable cause. If the evidence is sufficient, the magistrate judge will issue a warrant for the commitment of the fugitive until he can be turned over to the foreign government. At this stage, bail is generally denied.

The decision of a magistrate judge or district court to extradite a fugitive may generally be reviewed through habeas corpus or a declaratory judgment. In addition, a fugitive who fears torture may have additional options in having his case reviewed. If the magistrate judge denies the request to extradite, the foreign government may generally not seek a review. Typically, the only recourse for the foreign government is to re-file the complaint against the fugitive.

In defending against an extradition request by a foreign country, a defense attorney has several options. First, a defense attorney may argue that there is insufficient probable cause to believe that the fugitive committed the crime. An attorney may also argue that the arrested person is not the person the foreign country seeks to extradite.

Even when sufficient cause has been found, a fugitive may be discharged from custody in some situations. Federal law allows the government to hold a fugitive for up to two months after the magistrate judge determines that he should be extradited. If two months elapse, the fugitive may seek to be discharged. The "two month rule" is not mandatory and courts will take into account all the facts. If the fugitive delayed the extradition process through habeas corpus proceedings, the prisoner will most likely not be discharged. If the delay was due to the foreign country, the fugitive will generally be released.

The information provided above is a very general summary of the law regarding this particular legal issue at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult with a lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all Georgia state and federal courts.