Darcy lives in North Carolina. Upon learning about an upcoming music festival in California, Darcy creates realistic, high-quality digital replicas of the festival’s VIP wristband passes and PDF tickets. She posts them for sale online from her computer in North Carolina, and a group of friends in California buys four “tickets” from her for $1,200 via online payment. When the friends are turned away by festival security, they file a police report. A warrant is later issued in California for Darcy’s arrest on charges of theft by false pretenses.
Derek lives in North Carolina. Derek’s brother is currently on trial for drug trafficking in Utah. Derek discovers the identity of the state’s star witness, who lives in Utah. From his phone in North Carolina, Derek creates an anonymous encrypted messaging account and sends a series of graphic, highly specific death threats to the witness, warning her that if she shows up to the courthouse on Monday, she will be killed. A warrant is later issued in Utah for Derek’s arrest on charges of communicating threats and witness tampering.
The Uniform Criminal Extradition Act—which has been adopted in 48 states—provides a procedure not only for mandatory extradition arising under the United States Constitution but also provides for extradition of non-fugitives at the discretion of the governor. A non-fugitive is a person who commits an act punishable in another state but was not present in the state when the crime was committed. In the scenarios above, both Darcy and Derek are considered non-fugitives because they were not present in the charging state (California and Utah) when the respective crimes were committed. The process for extradition of non-fugitives is largely the same for that of fugitives, but there are some notable differences which I highlight in this post.
Can a non-fugitive be arrested on a fugitive warrant?
Pursuant to G.S. 15A-733, a fugitive warrant is most commonly issued when (1) a person is charged with a crime in another state and has fled, (2) a person was convicted of a crime in another state and has fled to avoid sentencing or has escaped from custody, or (3) a person was convicted of a crime in another state and has violated probation, parole, or post-release supervision by fleeing. The same statute also provides for arrests of non-fugitives.
The language of the fugitive warrant form (AOC-CR-910) does not account for non-fugitives. The existing version of the form requires the defendant to fall within one of the three categories of eligibility described above. Even so, a non-fugitive is usually arrested on a fugitive warrant. Most times, it is unclear without the details of the crime if a person is a non-fugitive. The demanding state’s charging documents are not required to specify whether the person was present in the state at the time the crime was committed. The charging document needs only to establish that a crime was committed and that the named person has been charged with the commission of the crime.
When and how can a person challenge fugitive status?
Before a waiver of extradition is accepted, the judge or clerk must inform the person that if a governor’s warrant is served, then the person will have a right to apply for a writ of habeas corpus to challenge the legality of the arrest. G.S. 15A-746. If the person does not waive extradition, then the demanding state must ask by way of a governor’s requisition that the governor of North Carolina issue a governor’s warrant to extradite the person. See G.S. 15A-723. The charging state’s requisition and supporting documents should clearly state whether the accused is a fugitive or the request is for a non-fugitive. If the request is for a non-fugitive, then the governor has discretion as to whether to issue a governor’s warrant. G.S. 15A-726.
If a request for extradition is premised on the person’s status as a fugitive, then a person arrested on a governor’s warrant has an opportunity to challenge the fugitive status via a writ of habeas corpus. See G.S. 15A-730; See also Jenkins v. Garrison, 265 Ga. 42 (1995). The United States Supreme Court has clearly delineated the scope of judicial review of a habeas corpus petition in extradition cases. Once the asylum state’s governor has granted the demanding state’s extradition request, a court considering release on habeas corpus can decide only the following issues:
- whether the extradition documents on their face are in order;
- whether the petitioner has been charged with a crime in the demanding state;
- whether the petitioner is the person named in the request for extradition; and
- whether the petitioner is a fugitive.
Michigan v. Doran, 439 U.S. 282 (1978). The petitioner has the burden of showing by “conclusive” evidence that he or she was not present in the demanding state at the time the alleged crime was committed. See People ex rel. Garner v. Clutts, 170 N.E.2d 538 (Ill. 1970). A habeas petition will not be granted where there is only contradictory evidence as to whether or not the person was in the demanding state at the time the crime was committed. Id.
Why does fugitive status matter?
Extradition of fugitives is a mandatory proceeding, compelled by Article IV, section 2, clause 2 of the United States Constitution. See New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151 (1998). Once presented with sufficient documentation from a demanding state, a governor’s warrant must be issued. On the other hand, extradition of non-fugitives is not constitutionally mandated. It is made discretionary by the Uniform Criminal Extradition Act, which has been enacted in all states except South Carolina and Mississippi (though these states have statutes very similar to those found in the UCEA). Thus, a person who is charged with a crime in another state and who can establish non-fugitive status may be able to avoid extradition. However, even if non-fugitive status is established, the governor may still exercise his or her discretion in favor of extradition.
