constitutional aspects of state extradition legislation - Indiana Law ...

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NOTES legislation, thus avoiding the necessity to define the limits of national power, the extent to which it has been exercised, and the determination as to whether state legislation conflicts. In other words, no limitation upon state power would be implied from the extradition clause of the Constitution. Superficially, such an interpretation seems radical for it apparently gives the states unrestricted authority to legislate in this field, including the power to replace a well-established system of extradition. But no grounds may be posited which support an implication that the states would abuse this power; existing uniform state laws have been of material benefit. Moreover, merely because the extradition clause places no limitation on the states, it does not follow that the states have unfettered power. The due process clause of the Constitution could feasibly be used to check the use of questionable rendition legislation. Though no Supreme Court decisions establish this function of due process, its possible application has been recognized, at least, by state courts. 31 Should state legislation result in grave injustice, the due process concept could be utilized to prevent its operation, for it is well established that state action not consonant with basic standards of justice is a denial of due process of law. 32 That some states might so act is not mere conjecture. A. compact entered into by Kansas, New Mexico, Colorado, and Wyoming 3 stipulates that the officers of any of these states in pursuit of an alleged criminal may cross the borders of any other member state to arrest and return him without resorting to extradition proceedings." If the effect of this agreement is to legalize the removal of a supposed 31. People v. Ruthazer, 98 N.Y.S.2d 104, 107 N.E.2d 458 (1952); Pierce v. Smith, 31 Wash.2d 52, 195 P.2d 112 (1948). 32. Gibbs v. Burke, 337 U.S. 773 (1949); Ashcraft v. Tennessee, 322 U.S. 143 (1943). 33. COLO. STAT. ANN. c. 153, §§44(1)-(5) (1935). Officers of member states are allowed to arrest: "(a) While in pursuit of any person who has committed a felony in said state; or (b) While in pursuit of any person who had been charged with the commission of a felony in said state; or (c) While in pursuit of any person who escaped from custody of any penitentiary, jail. .. ." Under these situations extradition is waived and officers of the compacting states are authorized to make an arrest and removal of a person. See discussion by THE COUNCIL OF STATE GOVERNMENTS, op. cit. supra note 7, at 4-6. 34. The UNIFORM FRESH PURSUIT AcT § 2, allows arrest by officers, but requires that a magistrate determine the lawfulness of the arrest, and that the alleged criminal be held for extradition. See discussion by THE COUNCIL OF STATE GOVERNMENTS, op. cit. supra note 7, at 1-7. Examples of the Uniform Fresh Pursuit Act may be found in CAL. PEN. CODE §§ 852-852.4 (1949); IND. ANN. STAT. §§9-451-9-458 (Bums Supp. 1951); IOWA CODE ANN. c. 756, § 1 (1951); MIcH. Comp. LAws §§ 780.101- 780.108 (1948).
INDIANA LAW JOURNAL criminal without affording him an opportunity to secure a writ of habeas" corpus to determine if the compact has been complied with, successful objection might be made that due process has not been accorded: 35 The Supreme Court has held that one has no right to extradition proceedings, hence if a person is illegally removed from a jurisdiction his sole remedy is a civil action against the removing officers. No question concerning the illegal return may be raised at the criminal trial in the demanding state's courts. 3 6 It does not by necessity follow, that a state has power to authorize the return of a person by local officers or by officers of the demanding state without giving him an opportunity to challenge the removal in court. Law enforcement officers possess no authority to arrest except upon a reasonable belief that a crime has been committed and that the suspect committed the crime. But when the officer of 'one state is empowered by the laws of another state to make arrests in the latter state. while in pursuit, he has thus been permitted to determine whether he is in pursuit within the statute's meaning and whether there are substantial grounds to support a valid return. Such wide discretion could easily be abused, resulting in the arrest and return of the innocent as well as the guilty. 3s Despite the fact that these four states may waive the requirement of technical extradition procedures, it may be contended that due process requires a hearing in the asylum state to determine whether the suspect has been charged with a crime, or, at least, whether reasonable grounds exist upon which a crime may be charged, before his return is legal. 38 35. The compact makes no provision for a hearing. If the officers arrest and return a man without giving him an opportunity to sue out a writ of habeas corpus or go before a magistrate to determine if the terms of the statute of the asylum state are complied with, the return may be questioned as illegal under due process subjecting the officers to civil liability and existing criminal measures. 36. Pettibone v. Nichols, 203 U.S. 217 (1906). 37. In Austjford v. Guthner, 109 Colo. 47, 121 P.2d 891 (1942), the petitioner was allowed to go into the courts of Colorado, and the Supreme Court of that state found that he could not be returned under the compact, CoLo. STAr. ANN. c. 153, §§ 44(1)-(5) (1935), since the arresting officers were not in pursuit. This case emphasizes the abuse which could result if the officers of a member state could make a legal return without first giving the alleged criminal a hearing. 38. A state official transporting a person illegally into another state for trial is, of course, subject to a civil action for false imprisonment and criminal action for kidnapping. Now he would also be subject to prosecution under the Federal Kidnapping Act, 18 U.S.C. § 1201 (1950). In Collins v. Frisbie, 189 F.2d 464 (6th Cir. 1951), it was held that if officials violated the Kidnapping Act in transporting one for trial in another state, the injured person could obtain relief against prosecution by securing a writ of habeas corpus in a federal court. If sustained this case would in effect reverse Pettibone v. Nichols, 203 U.S. 217 (1906), supra note 34. For discussion, see Note, 27 IND. IJ. 292 '(1952)..
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