“In Ohio, the governor can request extradition of any fugitive arrested in a different state.”
What is “extradition?”
Extradition is the process by which an individual who is being held in one state is surrendered to another state (demanding state) in connection with separate criminal proceedings. If the individual is taken into custody in a separate state, the demanding state can request to have that person extradited to address the underlying criminal offense or proceedings.
Who regulates extradition? Extradition is regulated by the executive authority of a state. In Ohio, the governor can request extradition of any fugitive arrested in a different state. If such a demand is made, the governor will issue a warrant (i.e., a Governor’s Warrant) setting forth the factual summary/basis for the fugitive’s arrest and extradition.
What happens when a fugitive is arrested?
Following arrest, the fugitive has two options: they can request a hearing to contest the extradition or they can waive their right to a hearing. If the fugitive waives the hearing, they will be made available immediately for return to the demanding state. Importantly, waiving the hearing does not constitute an admission of the offenses underlying the criminal proceedings in the demanding state; rather, it is simply an acknowledgment of the legitimacy of the warrant and the demanding state’s right to extradite the fugitive.
What is the judicial process for extradition after a fugitive is arrested?
In Ohio, an individual who has been arrested pursuant to a Governor’s Warrant is entitled to appear before a judge or magistrate, to be advised of the demand for their surrender and their right to procure legal counsel. R.C. § 2963.09. The fugitive is also entitled to file a writ of habeas corpus; however, the scope of this petition is limited to challenging the legality of the arrest and does not address the merits of the underlying charges. R.C. § 2963.09. There is no absolute right to release on bail after a Governor’s Warrant has been executed.
There are also instances where a fugitive is arrested pursuant to a general warrant – that is, prior to the issuance of a Governor’s Warrant. In that event, Ohio law authorizes detention of the fugitive for a total term of 90 days to allow the demanding state to obtain a Governor’s Warrant for the fugitive’s return. See R.C. § 2963.13; 2963.15. Ohio courts have discretion to release a fugitive on bail prior to the issuance of a Governor’s Warrant. See R.C. § 2963.14.
The fugitive also has the option to waive the issuance and service of a Governor’s Warrant and all other procedures incident to extradition process. See R.C. § 2963.24. Any fugitive who waives extradition is required to execute forms in the presence of a judge acknowledging their consent to return to the demanding state. Prior to accepting that waiver, the judge must inform the fugitive of their rights to the issuance and service of a Governor’s Warrant and/or to apply for a writ of habeas corpus. After the fugitive’s waiver has been accepted, the judge will order that the fugitive be made available to the demanding state. See R.C. § 2963.24.
What to do when representing a client who is facing extradition?
Whenever a client is arrested or detained pending extradition, the first step is to obtain information regarding the basis for the extradition demand and advise the client of their options pertaining to extradition. If no Governor’s Warrant has been issued, counsel should petition the detaining court for a bond.
Even if bail is granted, the client must be advised that the underlying warrant is still active and that the client should consider returning to the demanding state prior to the issuance of a Governor’s Warrant. There are significant benefits to having the client return to the demanding state on their own volition, including eliminating the time and expense attendant to the extradition process and reducing the likelihood that the client will spend a significant amount of time in custody while awaiting extradition. Furthermore, the client’s willingness to self-surrender to the demanding state can be a significant mitigating factor in facilitating a resolution of the underlying case in the demanding state or for securing a bond upon their return.
Prior to the client’s return, counsel should contact the appropriate authorities in the demanding state to inform them of the client’s intentions and to coordinate a date and time for the client to self-surrender and/or appear in court. Counsel can also explore the possibility of having the warrant recalled in anticipation of the client’s self-surrender, thereby reducing the likelihood that the client will be arrested and detained while attempting to return to the demanding state. Eric Nemecek