This is specifically for US Citizens (or residents) committing crimes in foreign nations and being caught in the United States.
I understand that there are at least two basis for European states to refuse extradition of an accused; 1. The state requesting the extradition has capital punishment or 2. There exists the real possibility that the accused will face torture once extradited*. I was wondering if there were any laws that regulate the US refusal to extradite an accused, similar to that of the second reason that I stated (the real possibility of torture or other human rights issue).
Like, say an Islamic women commits a crime in Saudi Arabia but is in the United States, and that she will be stoned to death if she is extradited to Saudi Arabia (I do not know Saudi law, I am just using this as a hypothetical example). Might the United States refuse the extradition, assuming that the US courts find stoning to be inhumane?
* Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984
The USA is a signatory to the UN Convention on Torture that you mentioned, so the USA’s obligations under that treaty have the force of law, same as the obligations of European states. Note, though, that the convention specifically excludes “pain or suffering arising only from, inherent in or incidental to lawful sanctions”, which makes your stoning case a thorny one. (Leaving aside the fact that the USA doesn’t have an extradition treaty with Saudi Arabia.)
Beyond that: I’m not a legal expert, but I expect that it’s going to depend on the details of the extradition treaty between the US and the foreign country in question. Here’s the USA’s treaty with France, for example. It permits refusal (or completely bars) extradition by either state on several possible grounds:
[ul][]Neither state is required to extradite its own citizens, although if a country refuses to extradite someone on these grounds, they must try the citizen themselves.[]Extradition will not be granted for “political offenses”, although there are some exceptions for particularly violent ones (assassinations, bombings, kidnappings, etc.)[]Extradition can be denied for military offenses such as desertion.[]Extradition can be denied if the offender is old or infirm.[]Extradition can be denied in death penalty cases, as noted in the OP.[]Extradition is barred in cases of double jeopardy, or if the appropriate statute of limitations has expired.[/ul]The exceptions for the death penalty, double jeopardy, and statute of limitations could all be considered to be “human rights issues”, so that’s a possible scenario under which the US could bar extradition for a human rights issue.
This is one of the general, but not universal limitations written into extradition compacts. It’s called double criminality. It generally also requires that a valid prosecution could occur in both states, so if the statute of limitations has expired in the state from which extradition is requested it will be denied.
Along similar lines, there is an exception called ordre public. The basic premise is that extradition will be denied if the prosecution would violate the high public policy of the extraditing state. This doesn’t come up very often because such cases tend to violate double criminality provisions anyway.
Extradition of one’s own citizens is generally barred, as noted in the US/France treaty above.
Two more that sort of run together are double jeopardy (or ne bis in idem) and concurrent jurisdiction. States usually don’t have to extradite people if they intend to prosecute them domestically, and never have to if they have already done so.
Isn’t there also a requirement for a fair (equitable, or at least reputable) justice system in the requesting country? I’m pretty sure there’s an official policy against extraditing when it’s likely to result in a sham trial.
Usually if that’s a problem, they torture and execute too, or otherwise violate human rights, so it doesn’t matter.
IIRC the extraditing country has to show there is enough evidence to bring charges; I assume whoever hears the case is free to hear the evidence and reject it as unconvincing. However, if you did choose to commit murder in the Congo or Saudi Arabia and the evidence is pretty convincing, well, you made your bed then you lie in it.
Beyond that: I’m not a legal expert, but I expect that it’s going to depend on the details of the extradition treaty between the US and the foreign country in question. Here’s the USA’s treaty with France, for example. It permits refusal (or completely bars) extradition by either state on several possible grounds:
[ul][li]Neither state is required to extradite its own citizens, although if a country refuses to extradite someone on these grounds, they must try the citizen themselves.[]Extradition will not be granted for “political offenses”, although there are some exceptions for particularly violent ones (assassinations, bombings, kidnappings, etc.)[]Extradition can be denied for military offenses such as desertion.[]Extradition can be denied if the offender is old or infirm.[]Extradition can be denied in death penalty cases, as noted in the OP.[*]Extradition is barred in cases of double jeopardy, or if the appropriate statute of limitations has expired.[/ul]The exceptions for the death penalty, double jeopardy, and statute of limitations could all be considered to be “human rights issues”, so that’s a possible scenario under which the US could bar extradition for a human rights issue.[/li][/QUOTE]
So which one of these is their excuse for not giving up Roman Polanski? I can’t see one.
Roman Polanski is a French citizen, also he has already been convicted but fled before sentencing, so probably the last part of that condition has been satisfied.
I think that it’s mainly the civil law countries that have problems with extraditing their own citizens. Common law countries are generally okay with. Of course, if one party to a treaty won’t extradite its own citizens, usually the treaty will say neither country is required to do so, so each has equal obligations under the treaty.
Polanski is not a Swiss citizen, though, and the Swiss court’s refusal to extradite is harder to defend. Basically, they accepted a claim from Polanski that the prosecution was flawed; i.e., they acted as an ad hoc appellate court.
Well, trying to keep it GQ, it seems that France should at least sentence Polanski for his crime if they would like to take advantage of that exception.
I mean, if I killed 84 people in France, was convicted, escaped, and fled to the U.S., it would seem to not be in good faith to say that I was already tried in France so the U.S. will let me roam free because of that fact.
From what I read once it seems the reason why Polanski wasn’t prosecuted in France was that neither the victim nor the USA brought charges or requested it.
Interesting. In the US, the criminal laws can vary somewhat from state to state or even between local municipalities. E.g. prostitution is legal in some places in Nevada. If Canada wanted to extradite an American to Canada on a prostitution related charge, how would the US court apply double criminality to determine if they should extradite? Would it depend on whether prostitution was legal in the jurisdiction in which the extradition hearing is held? Whether the desired extraditee is a resident of a jurisdiction that allows prostitution? What if someone possessed unlawful fireworks in France, reentered the US by flying to Texas ( (where I assume the laws on fireworks are very loose if there are any), lived in Houston for a few months, then decided to move to Newark, New Jersey, where two sparklers can get you two years. If France then asked for extradition, would the court automatically latch on to NJ law and say, yeah, fireworks are illegal there and here, off you go to France, hope you like French Prison!