What Are Ten Good Arguments Against Extradition?
If one has decided to oppose extradition, what are valid arguments that, if applicable, a judge will give serious consideration? In no definitive order, they are:
1. Identity. The defendant denies being the person named in the demanding state as the fugitive. See Penal Code § 1551.2; People v. Superior Court (Lopez) (1982) 130 Cal.App.3d 776, 783, 182 Cal.Rptr. 132. If defendant claims this, he should demand an identity hearing.For more information about extradition issues, please click on the following articles:
2. Never a conviction or charge. The defendant denies being charged with or convicted of a crime in the demanding state. See California v. Superior Court (Smolin) (1987) 482 U.S. 400, 96 L. Ed. 2d 223, 107 S. Ct. 2433.
3. Legal insufficiency. A required allegation is missing from the demanding state’s extradition request. This means the request is legally insufficient. This could mean that the written demand for extradition, called a requisition, is not signed, or that if a warrant was issued for defendant from the demanding state, that it is not produced. Lastly, it may mean that the demanding state failed to produce a certified copy of a judgment, sentence, indictment, information or affidavit stating that defendant is a fugitive.
4. Not a fugitive or non extraditable. The defendant is not a fugitive or is not extraditable. People v. Superior Court (Lopez), supra.
5. The crime alleged is no longer a crime. The statute in the demanding state that defendant is charged with violating has been declared void in the demanding state. In re Cooper (1960) 53 Cal.2d 772, 3 Cal.Rptr. 140. However, any question of statutory interpretation must be left to the demanding state.
6. Innocence. Defendant is innocent (to be raised in the demanding state), but it is obvious and thus is raised to contest extradition here. This could convince the judge here to release defendant on his or her own recognizance or to set a low bail, or to discharge the case.
7. Extreme hardship. Defendant is suffering extreme hardship. This may be due to defendant’s old age, youth, health issues or family issues. These issues should also be presented to the demanding state to persuade the demanding state to decide against extradition.
8. The crime is unsubstantial or not serious to justify the expense of extradition to the demanding state. For example, the crime is non-violent and/or the loss involves a very small amount of money. This is usually a threshold issue for the demanding state to consider in whether to extradite, not for the asylum state judge to consider, so raising this issue must be done carefully.
9. The crime charged is not illegal in California. This argument is not usually effective, but it should be made with care
10. Defendant has been rehabilitated. This may be true, as it is common that a person commits a crime in another state and leaves for California, where he or she earns a college degree, becomes employed, gets promotions, gets married, volunteers in the community, has children and is active in the church of his or her choice. The person may have also entered a drug rehabilitation program here after a drug charge in the demanding state. This should be communicated to the prosecutor in the demanding state to forego extradition.