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.
The Interstate Rendition or extradition 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. The Framers regarded interstate rendition, despite its classical roots, 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 offenses of 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 rendition act requires formal indictment or affidavit, but it does not mention a method known as “criminal information,” generally, a unilateral accusation by the government. This omission likely was deliberate, as such information was a known device abused by the British.
The Interstate Rendition Clause suggests that deliberate and voluntary flight is required. Thus, early scholars speculated, for example, that a person involuntarily removed from one state to a second state (by another person or even by court order) 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 state seeking rendition allege that the person sought had committed an overt criminal act in the demanding state. Strassheim v. Daily (1911); Appleyard v. Massachusetts (1906). That the person sought was present in an asylum state before the indictment 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. A state’s governor may determine only (1) whether the person sought is charged with a crime under the demanding state’s law and (2) whether that person is a fugitive, that is, was present in the demanding state when the alleged overt act occurred. Munsey v. Clough (1905). Upon a habeas corpus petition, a court also may make inquiries only on those two questions. Michigan v. Doran (1978). Other questions—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 on whether governors had to return fugitives. It ruled in Puerto Rico v. Branstad (1987) that federal courts may compel state executives to render fugitives who have been properly demanded by the requesting state.
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 statutes. Furthermore, states today can 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 the original conception of the Interstate Rendition Clause contemplated an exclusive process of rendition. If so, then ancillary agreements 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.
Leslie W. Abramson, Extradition in America: Of Uniform Acts and Governmental Discretion, 33 BAYLOR L. REV. 793 (1981)
JOHN G. HAWLEY, INTERSTATE EXTRADITION (1890) ROLLIN C. HURD, A TREATISE ON THE RIGHT OF PERSONAL LIBERTY, AND ON THE WRIT OF HABEAS
JAMES M. KERR, INTERSTATE EXTRADITION (1880)
2 John Bassett Moore, A Treatise on Extradition and Interstate Rendition (1891)
John J Murphy, Revising Domestic Extradition Law, 131 U. Pa. L. Rev. 1063 (1983)
JAMES A. SCOTT, THE LAW OF INTERSTATE RENDITION (1917)
Dale Patrick Smith, Dissertation: Interstate Extradition: A Case Study in Constitutional Interpretation (1984)
Samuel T. Spear, The Law of Extradition, International and Inter-State (3d ed. 1885)
JOSEPH FRANCIS ZIMMERMAN, HORIZONTAL FEDERALISM: INTERSTATE RELATIONS (2011)
Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842)
Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1860)
Taylor v. Taintor, 83 U.S. (16 Wall.) 366 (1872)
Roberts v. Reilly, 116 U.S. 80 (1885)
Lascelles v. Georgia, 148 U.S. 537 (1893)
Munsey v. Clough, 196 U.S. 364 (1905)
Appleyard v. Massachusetts, 203 U.S. 222 (1906)
Strassheim v. Daily, 221 U.S. 280 (1911)
Michigan v. Doran, 439 U.S. 282 (1978)
Puerto Rico v. Branstad, 483 U.S. 219 (1987)
New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151 (1998)