Interstate Rendition Clause

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.

Article IV, Section 2, Clause 2

The Extradition or Interstate Rendition Clause derives from similar language in the Articles of Confederation, but the principle of extradition between governments dates to antiquity. The Framers' purpose was to foster comity between states and to prevent criminals from evading law enforcement. Despite its classical roots, the Framers regarded interstate rendition as distinct from international extradition. In 1793, Congress passed the first rendition act—today, 18 U.S.C. § 3182—for fear that the clause was not self-executing. The statute governed rendition from territories as well as states. Although there is no express power granted to Congress to govern rendition, Justice Joseph Story regarded it as implied from the moral duty of Congress to carry into execution the duties imposed on the federal government by the Constitution. Prigg v. Pennsylvania (1842).

On its face, the clause requires (1) a facially valid criminal charge in a demanding state, (2) a flight to an asylum state, and (3) an executive demand for return. The Framers specified the words "Treason" and "Felony" to show that political crimes warrant rendition, as well as "other Crimes" to comprehend all crimes, regardless of gravity. Taylor v. Taintor (1872); Kentucky v. Dennison (1860). Exempted from the scope of the clause are civil liabilities and private debts. As to what constitutes a criminal charge, the 1793 act requires indictment or affidavit, but does not mention the criminal information. This omission arguably was deliberate, as such information was a known device abused by the British. The meaning of "charged" remains unresolved in this respect.

The clause suggests that deliberate flight is required. Thus, early scholars speculated, for example, that a person involuntarily removed from one state to a second state could not be rendered back or rendered forward to a third state. But consistently with the clause's law-enforcement purpose, flight has been construed without regard to intent, requiring only that the person sought be alleged to have been physically present in the demanding state so as to commit an overt act in furtherance of a crime there. Strassheim v. Daily (1911); Appleyard v. Massachusetts (1906). The fact that a fugitive is present in an asylum state before the indictment is issued does not insulate him from rendition. Roberts v. Reilly (1885).

In the antebellum period, a crisis of executive demands and compliance arose, as some Northern governors refused to return fugitives charged with slavery-related crimes to Southern states. Since the Civil War, the Supreme Court has clarified and limited the scope of the executive power in the asylum state to decline rendition. That executive may determine only whether the person sought is charged with a crime under the demanding state's law, and whether that person is a fugitive, that is, was present in the demanding state when the alleged overt act occurred. Munsey v. Clough (1905). A court may inquire similarly upon a habeas corpus petition. Michigan v. Doran (1978). But other questions—of, for example, guilt or innocence, sufficiency of evidence, construction of state law, or adequacy of justice in the demanding state—are triable only in the demanding state. New Mexico ex rel. Ortiz v. Reed (1998); Lascelles v. Georgia (1893). In 1987, the Supreme Court resolved the last vestige of antebellum indecision, ruling in Puerto Rico v. Branstad (1987) that federal courts may compel state executives to render fugitives properly demanded.

Rendition particulars today are controlled chiefly by the Uniform Extradition and Rendition Act, adopted in some form in every state. State rendition laws have been upheld insofar as they are consistent with the Constitution and federal statute. Furthermore, states today provide for rendition outside the scope of the clause. For example, states may agree to render subpoenaed witnesses and charged persons who were never present in the demanding state. It is unclear whether these ancillary agreements in any way offend the original conception of the Interstate Rendition Clause as an exclusive process. For example, an agreement between two states to allow rendition even if there are procedural deficiencies in the demand for rendition may contravene the Due Process Clause of the Fourteenth Amendment.

Richard Peltz
Professor of Law
University of Arkansas at Little Rock, William H. Bowen School of Law