Extradition Process

The Long, Winding Road of Extradition

Initial Arrest and Bail Hearing

The extradition process often starts with an arrest based on a foreign warrant. Prosecutors will file a complaint outlining the charges and demanding “provisional arrest” to hold the person until extradition documents arrive from the requesting country.

At the initial appearance, the judge considers whether the person is actually the one being charged overseas. They also decide whether to release them on bail pending the extradition hearing. Bail is rarely granted in extradition cases because of the flight risk. Expect your client to wait in jail, sometimes for months, before seeing a judge again.

Extradition Hearing

Once the foreign country formalizes its extradition request through diplomatic channels, the court holds an extradition hearing. This process can take upwards of a year as the requesting country gathers evidence and files the proper paperwork.

At the hearing, the judge has limited scope. Their only role is to certify that treaty requirements are met, such as confirming the person’s identity and that the alleged conduct would be criminal in both countries. The extradition judge does not weigh evidence or consider defenses. It’s a lower bar than an actual trial.

As counsel, your objectives are proving mistaken identity or that no extraditable offense is charged. Mistaken identity claims rarely succeed but could introduce doubt. For the extraditable offense strategy, research whether the foreign law equates to a U.S. felony. This angle saved British banker Ian P. here. Utilize expert witnesses to challenge if the foreign charges truly match domestic laws.

While an uphill battle, creative lawyering has value even in the extradition context.

Secretary of State Decision

If the court certifies extradition, the case goes to the Secretary of State to approve or deny the request. This phase focuses on humanitarian claims and political factors rather than legal defenses.

Arguments center on the person’s health, mental condition, or the substandard prison conditions they may face overseas. The Secretary sometimes negotiates with the requesting country to improve prospective treatment prior to extradition.

However, political calculations typically control the final call more than humanitarian pleas. The State Department weighs foreign policy interests like maintaining positive diplomatic relations or furthering law enforcement cooperation. Less strategic concerns like individual rights receive lower priority, unfortunately.

As counsel, getting the requesting country “on record” about intended incarceration conditions and pressing health or human rights issues can support the case. Just understand that the law and facts often bend to global “realpolitik” at this point.

Surrender and Foreign Trial

If the Secretary approves extradition, the person gets transferred to custody overseas through the surrender process. The foreign trial itself operates under the requesting country’s rules of criminal procedure.

However, the extradition treaty may shape some aspects of the trial. For example, the “rule of specialty” limits the foreign court from prosecuting for any crimes beyond those listed in the certified extradition request.

Strategies in the foreign proceedings require adjusting to the specific evidentiary and fair trial rights in that country. But due process and human rights norms still apply under international law. Where the foreign system falls short, pursue recourse through entities like the United Nations or the European Court of Human Rights.

While extradition treaties facilitate law enforcement cooperation between countries, sometimes at the cost of individual liberties, those accused still deserve dignity and compassion. As counsel, blend rigorous advocacy with empathy for the turmoil extradition brings to clients and their families. Understanding the process’ risks and defenses offers a starting point to guide people through this legal quagmire.