Stay of Extradition

Plot: Nola escapes from Western Australia facing the death sentance for killing a cop. She fleas to Melbourne. Arrested for petty theft. About to be extradited so she kills another prisoner. She does this so she will get life in Victoria and not get sent back.

Does life actually work this way?

I know with them trying the one person (I forgot his name) in regards to 9-11, the EU is upset as they have no death penalty (is that right?)

Well, the first point is that there is no death penalty in West Australia - Australia abolished the death penalty for all crimes in 1985.

Second, if a person flees to a country without the death penalty, the law in that country may prohibit extradition to a country where the government might kill that person. Often, the country where the person is located may only agree to extradition if the requesting country guarantees that the person will not be killed by the state.

For example, last year the Supreme Court of Canada held that before the Canadian government could extradite two persons accused of murder to the United States, the Canadian government had to get a a guarantee from the United States that the State of Washington would not kill them if they were convicted. (For more detail, see this thread from last year: Canada, Extradition, and the Death Penalty.)

So, the hypothetical you give seems rather far-fetched to me.

With respect to the E.U., my understanding from the media is that France is inclined not to cooperate with American law enforcement in gathering evidence against the “20th hijacker” who is going to trial in the U.S., since if convicted he will be killed by the U.S. government. That also is somewhat different from your hypothetical.

Hmmm…Are the Australian states like American states, or like separate countries?

Because Mark’s example sounds more like this, to me:

“Nola is facing the death sentence in Illinois for killing a cop. She escapes to Indiana, where she is arrested for petty theft, and they run her through the computer and find out that she’s an Illinois escapee. While she is awaiting extradition back to Illinois, she kills another prisoner, so that she will get life in Indiana and not get sent back to Illinois.”

IANA Lawyer but I don’t think so. I think they’d send her back to Illinois.

>> She fleas to Melbourne

There must be a good story right there. It seems there are a lot of things I don’t know about Australia…

Yes. None of the EU countries still has the death penalty.

Each Australian state has its own criminal law, plus the Commonwealth (federal) government has ciminal law jurisdiction in matters related to Commonwealth law.

According to this website, the state of Queensland was the first Australian jurisdiction to abolish the death penalty, in 1922, followed by other states over the years; the Commonwealth abolished it for Commonwealth matters in 1973; the state of New South Wales was the last to abolish it completely, in 1985.

Here in the Seattle area an extradition case was headline news for a while. A young man name Martin Pang torched his parents failing frozen food business which was in an older all wood warehouse. 4 firefighters died as a result. Mr. Pang fled to Argentina to avoid arrest. While on the run, the King County prosecutor charged Pang with 4 counts of first degree murder which is punishable by death. Pang was caught and arrested by Argentine police but Argentina would not release Pang unless the possibility of receiving a death sentence was removed. The prosecutor enlisted help from the federal government but was forced to change the first degree charges to manslaughter. Even after being returned to Seattle, the prosecutor tried to bring back the first degree charges but was shot down by a federal court. Pang in now serving a life sentence with no chance of parole.

Actually that plot was taken from an Aussie Soap “Prisoner” (AKA “Prisoner Cell Block H”).

BTW Bea the top dog of Wentworth eventually killed Nola anyway so her plan didn’t work.

I was never involved in a extradition that involved either a death or life sentence, but in general, if a person wanted in NY was serving a sentence in another state, the person would complete that sentence before being turned over to NY.


Ahhh. Prisoner. Well that was back in the days when we had the death penalty.

I’m not sure, but my guess would be that in the short term, she would be tried in Victoria, and if found not guilty, she would be held in custody to be extradited to WA. If found guilty, then the states would come to some sort of arrangement about who got to keep her, and that could probably go either way. Seeing as WA had the death penalty and Vic didn’t (in the era in which Prisoner was made), this could get complicated, and I don’t know which way it would go.

The Australian states are like American states - not separate countries (although you’re not allowed to take fruit into Tasmania, and customs officials can check your bag for bananas and oranges etc at Hobart airport). Most state laws are pretty uniform across the country, but it isn’t necessarily so.

Since I know nothing of Australian law (outside of the fact that it’s based on the same English common law as the US (not counting Louisiana)), I’ll take a stab at Duck Duck Goose’s rephrase, hoping it helps the OP…

IAAL, insert disclaimer, don’t try this at home.

Extradition under the above depends on the relation of the states. Indiana may, at its choice, extradite Nola, or hold her to answer under their own laws first. It is less a legal question than a political one. If the governor (or more likely, the DA of the local jurisdiciton in question) of Indiana has a large contingent of anti-death penalty voters, he may not wish to appear to be condoning Illinois’ use of it. He may also wish to be seen as seeking justice for Indiana’s citizenry (to which he must answer), as opposed to Illinois’ (to whom he has no responsibility). He may also not want to risk the possibility of Illinois screwing up its case against Nola, resulting in her release in a few years (why would he ever think that?) - technically, no state has a statute of limitations on murder, but cases grow stale, evidence is thrown away, witnesses die, and forget, etc. It also might be a high-profile case, and the Gov./DA might prefer to be in the spotlight, rather than hand the media limelight off to a DA in Ill. Governors and DAs are elected positions, after all.

OTOH, the governor/DA might not want Nola living on Indiana’s dime, handing the responsibility of warehousing Nola for the next twenty years off to Ill. He also might have a less strong case, thus providing the backup charges in case Nola walks on Ill.'s charges. Or the Gov. may want to engender a happy relationship with his sister state’s gov’t (or may need a favor now or in the future).

Odds are low that in such a case that Indiana would pass, but it’s happened.

The United Nations Model Treaty on Extradition (available here) Article 4 d) says that extradition to a country with the death penalty is an optional reason for refusal to extradite. The country that receives the petition is not obligated to honour the request, but they are not obligated to reject it, either.

In connection with the 9/11 terrorism, countries that have used this Treaty as the model for their own extradition acts may also choose to refuse extradition unless the methodology of trial has been decided in advance, under Article 4 g). Trial under the normal system would be expected.