# Why would one waive extradition? **URL:** \ **Category:** Factual Questions\ **Created:** [November 15, 2005, 11:26pm UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232 "2005-11-15T23:26:37Z")\ **Posts on this page:** 17\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2005, 4:15am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/21 "2005-11-16T04:15:30Z")
> [@groman](#): > > I have this idea that if a person arrested in state B for a crime in state A refuses to waive an extradition hearing they get an extradition hearing. If they win (prove, for example, that they can’t get a fair trial in state A), they will not be extradited, if they lose they will be. > > Now, honestly I don’t know what happens if you win an extradition hearing. I suppose you’re not extradited, so you have to be tried locally or let go. I’m guessing it’s “tried locally”. Stop offering your ideas as fodder for GQ answers. “I can’t get a fair trial in state A,” is not a permissible reason to oppose interstate extradition. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2005, 4:19am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/22 "2005-11-16T04:19:08Z")
> [@groman](#): > > Ok, I looked it up: > > According to [this](http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/15mcrm.htm#9-15.700) , in cases of international extradition, the procedure of what to do in case the subject is non-extraditable is not specified. Yes. Which has nothing to do with the OP, but it sure is interesting. > [@](#): > > And according to a bunch of state extradition laws I just read, basically if you win you go free in that state, unless the locals find something to charge you with. Also true. But pretty damn rare, since the requirements for a successful extradition are simply the showing that the governor of the state that wants you has certified that you’re under indictment or information or a fugitive in his state. The only way to win an extradition hearing is to show that the governor HASN’T certified that status, or that you are not the person named in the governor’s petition. ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [November 16, 2005, 4:22am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/23 "2005-11-16T04:22:04Z")
> [@Random](#): > > Your guess is wrong. Go away and play in IMHO. **Random**. If you have a problem, take it to the appropriate forum. You can say that here, but you need to make it less confrontational. Civility, man! **samclem** GQ moderator ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [November 16, 2005, 4:25am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/24 "2005-11-16T04:25:57Z")
Oh, yeah, and there is this: > [@US Constitution Art. IV](#): > > A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. ---
**Author:** ![groman](https://avatars.discourse-cdn.com/v4/letter/g/73ab20/32.png) [@groman](https://boards.straightdope.com/u/groman)\ **Post date:** [November 16, 2005, 4:26am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/25 "2005-11-16T04:26:56Z")
> [@Bricker](#): > > “I can’t get a fair trial in state A,” is not a permissible reason to oppose interstate extradition. It would be an interesting case, I can’t find precedent, and I’m not sure one exists, but you can’t argue that it doesn’t make sense at all. Since the question is about law, and US is mostly under common and codified law which is subject to judicial interpretation. For example, Virginia Law allows you (according to [this](http://www.commonwealth.virginia.gov/Extraditions/extraditionManual.pdf) ) use “cruel and unusual punishment” as a reason to avoid extradition. Now, that shows that a potential for violation of your civil rights under the Bill of Rights in the target state can prevent extradition, a good defense attorney might at least attempt the “fair trial” defense. Laws aren’t fixed y’know. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [November 16, 2005, 4:38am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/26 "2005-11-16T04:38:54Z")
> [@groman](#): > > It would be an interesting case, I can’t find precedent, and I’m not sure one exists, but you can’t argue that it doesn’t make sense at all. Since the question is about law, and US is mostly under common and codified law which is subject to judicial interpretation. No. It’s part of the constitution and there is a federal statute on the issue. The state cannot entertain an argument like that. ---
**Author:** ![groman](https://avatars.discourse-cdn.com/v4/letter/g/73ab20/32.png) [@groman](https://boards.straightdope.com/u/groman)\ **Post date:** [November 16, 2005, 4:43am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/27 "2005-11-16T04:43:47Z")
> [@Gfactor](#): > > No. It’s part of the constitution and there is a federal statute on the issue. The state cannot entertain an argument like that. Can you cite the federal statute in question that allows the “Cruel and Unusual Punishment” defense but disallows “Unfair Trial” defense, as per the Virginia Extradition Guide I cited above (I know it’s not law, but it’s a government document, would they really make such a glaring error)? Because I do not believe that is in the constitution. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [November 16, 2005, 4:46am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/28 "2005-11-16T04:46:48Z")
A couple of questions for American criminal lawyers or one-time American criminal lawyers (but not for **Groman** ): do states give extra credit for time served prior to conviction, and if so, would time spent in state B fighting extradition to state A be so credited? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [November 16, 2005, 4:52am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/29 "2005-11-16T04:52:29Z")
> [@Indiana State Constitution](#): > > Section 13. (a) In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed > [@Pennsylvania State Constitution](#): > > In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; Even if Indiana had jurisdiction to adjudicate violations of Pennsylvania criminal law, these provisions both seem to require that the jury be drawn from Pennsylvania, which would be very complicated, to say the least. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 16, 2005, 4:54am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/30 "2005-11-16T04:54:11Z")
Theoretically, couldn’t a sympathetic governor refuse to let you be extradited? ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [November 16, 2005, 4:55am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/31 "2005-11-16T04:55:10Z")
**groman** , I don’t fully understand your argument (and I’ve skimmed the 158 page pdf you link to), but permit me, if I may. “I can’t get a fair trial in State A” won’t work because it isn’t State B’s decision to make. (On preview, I adopt **Gfactor** ’s citations here.) The federal law on point (and what you cited to from Virginia doesn’t change the analysis) says that if the requisites for extradition are met, the fugitive will be extradited. Your concern – about lack of a fair trial – could then be raised by the fugitive in State A. If you will recall, Scott Peterson raised that as an issue in his trial, and his trial was in fact moved out of Modesto, where the crime occurred, and to San Jose. The San Francisco lawyers whose dogs killed a woman (their names escape me) also claimed that they could not get a fair trial in SF and sought a change of venue. But all of that would be decided pursuant to State A’s laws by the State A judge. Your second point, that “cruel and unusual punishment” could be a basis to avoid extradition from State A to State B is also problematic. Here is the section you cited (page 39 from the pdf): > [@](#): > > The only other justification for gaining release through **habeas corpus** is by demonstrating that his or her acts, according to relevant statutes of the state in question, do not constitute a crime. Again, the burden is on the defendant to refute the allegation in the Governor’s Warrant. It is not appropriate in this situation to consider guilt or innocence of the fugitive, motives of the demanding state, **constitutional issues related to the ability of the defendant to receive a fair trial in the demanding state** , prison conditions, etc. In fact, the only other justification that **might** apply would be the defendant’s ability to show great likelihood of being subject to cruel and unusual punishment in the demanding state. Emphasis added. As you see, the manual you cite explicitly rejects your first argument. As to the second, you need to understand that “cruel and unusual punishment” is pretty severe – the death penalty currently is not considered cruel and unusual punishment. So the mere fact that a fugitive might have to face death won’t get you there – _even if the law permitted him to make that argument_. And that’s the other issue. The section is talking about seeking habeas relief; it’s not about extradition per se. A habeas petition is different from extradition, as the manual you cite makes plain. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [November 16, 2005, 5:04am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/32 "2005-11-16T05:04:58Z")
> [@groman](#): > > Can you cite the federal statute in question that allows the “Cruel and Unusual Punishment” defense but disallows “Unfair Trial” defense, as per the Virginia Extradition Guide I cited above (I know it’s not law, but it’s a government document, would they really make such a glaring error)? Because I do not believe that is in the constitution. Ok. I’ve already shown you the part of the Constitution that rules this out, are you suggesting that Virginia can amend the Constitution? Are you suggesting that Congress can do so by passing a statute? You are sezing on a single sentence in a manual, which is not law, and trying to read it like a statute. And that single sentence says not that the argument would be grounds for refusal of extradition, but instead that it might be grounds for habeas corpus. That’s not gonna work. It is unlikely that the cruel and unusual punishment theory would fly because: 1. Assuming the defendant has not been convicted yet (as in all of your hypotheticals), he might be acquitted, which would moot the issue. So the issue is not ripe. 2. The defendant would have access to federal courts in the prosecuting state, and cruel and unusual punishment is unconstitutional, so the federal courts would guarantee that right irrespective of the state of prosecution. By they way, where in Virginia law (aside from the single sentence to which you have alluded) do we find th cruel and unusual exception to extradition? ::High-five to \*\*Campion \*\*on preview:: ---
**Author:** ![groman](https://avatars.discourse-cdn.com/v4/letter/g/73ab20/32.png) [@groman](https://boards.straightdope.com/u/groman)\ **Post date:** [November 16, 2005, 5:08am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/33 "2005-11-16T05:08:43Z")
Basically my example is an extreme hypothetical. Suppose the very nature of State A prevents the fugitive from getting a fair trial there. Now, internal issues of State A and it’s statehood and all fun stuff like that are not really of interest to an extradition hearing in state B, however, if it is obvious that for example, upon return to state A the fugitive will be summarily executed without a trial. Clearly unconstitutional for state A, but nonetheless the case in this hypothetical. Then, clearly “fair trial” SHOULD be a valid defense. I’d still like to see something that says it would be somehow against the law for a court to even entertain such a defense. After all any court decision that violates your constitutional rights is unconstitutional, but I don’t know if you can appeal extradition hearings all the way to the supremes. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [November 16, 2005, 5:10am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/34 "2005-11-16T05:10:48Z")
> [@groman](#): > > I don’t know if you can appeal extradition hearings all the way to the supremes. [You can](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=452&invol=920) ---
**Author:** ![groman](https://avatars.discourse-cdn.com/v4/letter/g/73ab20/32.png) [@groman](https://boards.straightdope.com/u/groman)\ **Post date:** [November 16, 2005, 5:20am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/35 "2005-11-16T05:20:58Z")
If anybody is interested, [here’s](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=449&invol=86#87) an attempted 8th amendment defense to extradition that failed. It also states that > [@](#): > > Once the Governor of California issued the warrant, claims as to constitutional defects in the Arkansas penal system should be heard in the courts of Arkansas, not those of California. which to me sounds like it would be sufficient to prove that if “constitutional defects” in state A’s legal system would in of themselves prevent “claims as to constitutional defects” as they pertain to this particular case. Now, could a courtrelease you to another jurisdiction if that jurisdiction itself was violating the 6th amendment and would not allow you to challenge it from the inside? ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [November 16, 2005, 5:52am UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/36 "2005-11-16T05:52:21Z")
**groman**. While I warned **Random** about his tone in that one response to your inane posts in this thread, I’m now warning you. If you try to come in and hijack a General Question thread with your personal opinions, and after being told by posters with legal qualifications that your posts are nothing but your unfounded opinions, and you continue your line of drivel, then I’ll issue you a formal warning. If you want to debate your opinions, take them to GD. If you merely wish to offer them, take them to IMHO. But keep them OUT of GQ. I hope this is clear. **samclem** GQ moderator ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [November 16, 2005, 1:14pm UTC](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232/37 "2005-11-16T13:14:53Z")
**groman**. I want to apologize for calling your statements “drivel.” That was impolite on my part. But I’m tired of people(not just you) offering their _opinions_ in General Questions. I know it will never change, but let’s try to do the research _before_ you offer your first post. **samclem** GQ moderator [Previous page](https://boards.straightdope.com/t/why-would-one-waive-extradition/331232.md?page=1)