International extradition is the formal process by which a person found in one country is surrendered to another country for trial or punishment. The process is regulated by treaty and conducted between the federal government of the United States and the government of a foreign country. The international extradition process is very different from the extradition process between states within the United States (interstate extradition), which is mandated by the Constitution, under Article 4, Section 2.
Under United States law (18 U.S.C. §3184), international extradition generally may only be granted under a treaty with a foreign country. But some countries may grant extradition without a treaty, and of those that do, most require an offer of reciprocity. And federal statutes permit the United States government to extradite persons who have committed crimes of violence against nationals of the United States in foreign countries whether or not there is a treaty with the foreign country seeking extradition—unless the person sought to be extradited is a citizen, national, or permanent resident of the United States. See 18 U.S.C. §3181 and 18 U.S.C. §3184. A list of countries with which the United States has an extradition treaty is located in the Federal Criminal Code and Rules (following 18 U.S.C. §3181), which should be verified by consulting the Criminal Division’s Office of International Affairs (OIA).
Because the law of extradition varies from country to country and is subject to foreign policy considerations, prosecutors must consult OIA on any matter relating to extradition before taking any action in such a case—especially before contacting any foreign official.
If the fugitive is not subject to extradition, other steps may be available to return him or her to the United States, or to restrict his or her ability to live and travel overseas. For example, if the fugitive is not a national or lawful resident of the country in which he or she is located, the OIA—through the Department of State or other channels—may ask that country to deport, expel, or otherwise effectuate the lawful return of the fugitive to the United States.
In United States v. Alvarez-Machain, 504 U.S. 655 (1992), the United States Supreme Court held that a court has jurisdiction to try a criminal defendant even if the defendant was abducted from a foreign country against his or her will by United States agents. Although this decision reaffirmed the long-standing proposition that personal jurisdiction is not affected by claims of abuse in the process by which the defendant is brought before the court—see Ker v. Illinois, 119 U.S. 436 (1886) and Frisbie v. Collins, 342 U.S. 519 (1952)—it sparked concerns about potential violations of foreign sovereignty, territorial integrity, and criminal law.
Because of the sensitivity of abducting a defendant from a foreign country, prosecutors may not take steps to secure custody over persons outside the United States—whether by government agents or private bounty hunters or investigators—by using Alvarez-Machain type returns without advance approval by the Department of Justice. Thus, prosecutors must consult with OIA before they undertake any such operation. If a prosecutor anticipates that a defendant may raise a claim that his or her return was illegal, the prosecutor must consult with OIA before such return.
Fugitives deported to the United States or otherwise legally returned without a formal order of extradition may claim that they were returned illegally. The courts generally analyze these claims under the Ker-Frisbie doctrine. And if a fugitive is apprehended only after a long delay, a prosecutor may have to litigate a motion alleging a Constitutional speedy trial violation if extradition has not been sought or the government has not been actively pursuing other steps to return the fugitive to the United States.