Article IV, Section 2, Clause 2:

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 Extradition Clause,1 which is also referred to as the Interstate Rendition Clause,2 applies to a person accused of a crime in one state who flees to another state. The Extradition Clause “preclude[s] any state from becoming a sanctuary for fugitives from justice” and “enable[s] each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed.” 3 To fulfill those ends, the Extradition Clause contemplates that the Governor of the state from which the accused has fled (the demanding state) may seek his return from the state to which the accused has fled (the asylum state). Interstate rendition was “intended to be a summary and mandatory executive proceeding derived from” the Extradition Clause.4 The Extradition Clause is nearly unchanged in substance from the analogous provision in the Articles of Confederation5 and was approved unanimously at the Constitutional Convention with little debate.6

The Extradition Clause is not self-executing, and the Constitution provides Congress no express grant of power to implement it. Yet the Second Congress passed a law, the current iteration of which is known as the Extradition Act, requiring the governor of each state to deliver up fugitives from justice found in their state, upon lawful demand from another state.7 The Supreme Court accepted this “contemporaneous construction” as establishing the constitutional validity of the legislation.8 In Kentucky v. Dennison,9 however, the Court held that this statute was merely “declaratory” of a moral duty of state and that the federal government “has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it.” 10 Because of Dennison, a federal court could not issue a writ of mandamus to compel the Governor of one state to surrender a fugitive to another state.11 Long considered a constitutional derelict, Dennison was finally formally overruled by the Court in 1987.12

Currently, states and territories may invoke the power of federal courts to enforce the Extradition Act against asylum state officers, including seeking equitable relief to compel performance of federally imposed duties.13 The duty of one state to surrender a fugitive to another is not absolute and unqualified, however—if the fugitive is imprisoned in the asylum state, for example, the asylum state may satisfy its own laws before returning the fugitive to the demanding state.14

Footnotes

1

See, e.g., Pierce v. Creecy, 210 U.S. 387, 393 (1908); Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 379 (1978).

2

See, e.g., Pollack v. Duff, 793 F.3d 34, 44 (D.C. Cir. 2015).

3

Michigan v. Doran, 439 U.S. 282, 287 (1978).

4

Id. at 288 (citing Biddinger v. Comm’r of Police, 245 U.S. 128, 132 (1917)).

5

Articles of Confederation of 1781, art. IV, para. 2, ( “If any Person guilty of, or charged with, treason, felony, or other high misdemeanor in any state, shall flee from Justice, and be found in any of the united states, he shall upon demand of the Governor or executive power of the state from which he fled, be delivered up, and removed to the state having jurisdiction of his offence.” ).

6

See 2 Max Farrand, The Records of the Federal Convention of 1787, at 443 (Max Farrand ed., 1911). The Convention replaced the term “high misdemeanor” with “other Crime” because “high misdemeanor” (which was used in the Articles of Confederation’s version) had a technical meaning thought to be “too limited.” Id.

7

1 Stat. 302 (1793). The current interstate Extradition Act is codified at 18 U.S.C. § 3182. The Act requires rendition of fugitives at the request of a demanding territory, as well as of a state, thus extending beyond the terms of the Extradition Clause. In New York ex rel Kopel v. Bingham, 211 U.S. 468 (1909), the Court held that this legislative extension was permissible. See Puerto Rico v. Branstad, 483 U.S. 219, 229–30 (1987).

8

Roberts v. Reilly, 116 U.S. 80, 94 (1885); see also Innes v. Tobin, 240 U.S. 127 (1916). As Justice Story wrote in Prigg v. Pennsylvania: “[T]he natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution . . . . [I]t has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby.” 41 U.S. (16 Pet.) 539, 616, 619–20 (1842).

9

65 U.S. (24 How.) 66 (1861). Cf. Prigg, 41 U.S. (16 Pet.) at 612.

10

Dennison, 65 U.S. (24 How.) at 107.

11

Id. at 109–10. In 1934, Congress plugged the loophole created by Dennison by making it a federal crime for any person to flee from one state to another to avoid prosecution in certain cases. 48 Stat. 782 (1934); 18 U.S.C. § 1073.

12

Puerto Rico v. Branstad, 483 U.S. 219, 230 (1987) ( “Kentucky v. Dennison is the product of another time. The conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development.” ); accord New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 155 (1998).

13

Branstad, 483 U.S. at 230.

14

Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371 (1873).