AGO 1959 No. 34 - Apr 30 1959
EXTRADITIONS - AGREEMENTS BETWEEN TWO GOVERNORS FOR THE COOPERATIVE DISPOSITION OF ACTIONS AGAINST AN ACCUSED - WHAT CONSTITUTES BEING A FUGITIVE FROM JUSTICE.
(1) A person is a fugitive from justice within the meaning of the constitution and laws of the United States where it appears: (a) that he has been charged or convicted with an extraditable offense in the demanding state; (b) that he was present in the demanding state on the date the alleged crime was committed; (c) that he thereafter voluntarily left or was forcibly removed by legal process from the demanding state.
(2) A prisoner confined in the asylum state may be extradited to this state, upon demand of our governor, without the asylum state waiving its right to subsequently request the return of the prisoner where the governors of the respective states enter into an agreement setting forth the conditions under which the temporary waiver of custody is granted.
(3) An extradition agreement between two governors for the cooperative disposition of claims against an accused is not required to be founded in affirmative statutory authorization enacted in both states. Principles of comity, as between sovereigns, amply warrant the execution and performance of such an agreement.
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April 30, 1959
Honorable Charles O. Carroll
County City Building
Seattle 4, Washington Cite as: AGO 59-60 No. 34
Attention: !ttAnthony Savage,Jr. Deputy
By letter previously acknowledged you requested an opinion of this office on several questions relating to an interstate extradition proceeding. We believe a determination of the following questions will adequately answer your inquiry:
[[Orig. Op. Page 2]]
(1) Under the law in the State of Washington, is a person a fugitive from justice, within the meaning of the constitution and laws of the United States when it appears: (a) that he was charged, convicted and sentenced in the demanding state for the commission of an extraditable crime; (b) that prior to the expiration of his sentence to confinement therein, he was surrendered by the authorities thereof to the State of Washington in compliance with an extradition request made by our governor for the purpose of prosecuting him for the crime of murder in the first degree committed in this state; (c) that the governors, as a part of the extradition, entered into an agreement whereby they agreed that the extradition request of the governor of this state would be granted only upon the condition that if the accused were acquitted or was sentenced to a penalty less than death, that he would be returned to the asylum state (the state from which the accused was originally extradited) for the purpose of serving the remainder of his sentence to confinement under his original conviction?
(2) Does the governor of this state have the power to grant extradition of a person who is charged, convicted and sentenced to confinement for a violation of the laws of this state?
(3) If question two is answered in the affirmative, what effect, if any, would this extradition have upon the right of this state to subsequently demand return of the prisoner for the purpose of requiring him to complete his sentence of confinement in this state?
(4) Does the governor have the power or authority under the law of this state to enter into an extradition agreement, the terms of which are set forth in question one?
(5) If question four is answered in the affirmative, what is the legal effect of such agreement?
We answer questions one, two and four in the affirmative; questions three and five in the manner hereinafter set forth in our analysis.
[[Orig. Op. Page 3]]
You have advised this office of the following facts giving rise to your request for this opinion: One Roy Victor Olson is charged in King county with the crime of murder in the first degree; that he is presently serving a sentence of from five years to life imprisonment in the State of California following a conviction of murder in the second degree; that the prosecuting attorney of King county is attempting to extradite him at this time from the State of California rather than at the expiration of his minimum term because he feels that the recent cases ofTaylor v. United States, 238 F. (2d) 259 (1956) andPellegrini v. Wolfe, 283 S.W. (2d) 162 (1955) might cause our supreme court to hold that a delay in Olson's trial in this state of from five to ten years without requesting his extradition, would constitute a violation of his constitutional right to a speedy trial and would thus result in the dismissal of the information against him in this state; that the governor of the State of California has indicated that he would be willing to approve the extradition request of our governor provided the law in this state would permit California to retake Olson immediately after his trial in this state, through extradition proceedings, in the event that the accused is acquitted or sentenced to a penalty other than death.
Question (1): The basic authority, power and duty of the several states in matters relating to interstate extradition are contained and prescribed in Article IV, § 2 of the United States Constitution. McClendon v. Callahan, 46 Wn. (2d) 733, 284 P. (2d) 323 (1955);In re Summers, 40 Wn. (2d) 419, 243 P. (2d) 494 (1952); In re Wallace, 38 Wn. (2d) 67, 227 P. (2d) 737 (1951); In re Anthony, 198 Wash. 106, 87 P. (2d) 302 (1939);In re Roberts, 186 Wash. 13, 56 P. (2d) 703 (1936). This section, in pertinent part, provides as follows:
"'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.'" (p. 15.)
This constitutional provision has been implemented through the enactment of legislation by Congress. 18 U.S.C.A., § 3182 provides as follows:
"Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has [[Orig. Op. Page 4]] fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged." (p. 60.)
In the case ofIn re Wallace, supra, our court said:
". . . The only prerequisites to extradition from one state to another are that the person sought to be extradited is substantially charged with a crime against the laws of the demanding state, and that he is a fugitive from justice. Brewer v. Goff, 138 F. (2d) 710; State of Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 52 L.Ed. 121, 28 S.Ct. 58. . . ." (p. 68.) (Emphasis supplied.)
The vital question here is whether the prisoner, presently confined in California, would be considered a "fugitive" from justice by the courts in this state, if the governor of California grants his extradition to this state for the purpose of trial (under the conditions outlined above) and thereafter requests his return to that state after the trial? To state it another way, would the State of California by granting extradition waive its right to request return of the prisoner to serve the remainder of his sentence in that state?
Our court has not passed directly on this question. However, the court has said that a person is a fugitive from justice, within the meaning of the constitution and laws of the United States when the following three elements appear:
(1) That he was charged before a proper judicial officer of the demanding state with the commission of an extraditable crime,
[[Orig. Op. Page 5]]
(2) That he was present in the demanding state on the date the alleged crime was committed, and
(3) That he thereafter left the state. In re Wheeler, 46 Wn. (2d) 277, 280 P. (2d) 673 (1955); In re Nerreter, 28 Wn. (2d) 520, 183 P. (2d) 799 (1947);In re Anthony, supra; In re Roberts, supra. State ex rel. Treseder v. Remann, 165 Wash. 92, 4 P. (2d) 866 (1931); see also, 35 C.J.S., Extradition, § 10 (b), p. 324.
The court in theTreseder case held that a person is "charged" with a crime after his conviction as well as before.
The argument that one removed from the demanding state by legal compulsion is not a fugitive from justice for purpose of extradition was presented to the court inIn re Anthony, supra. The facts in that case may be summarized as follows: The petitioner was charged, convicted and sentenced in the State of California for the crime of forgery. Thereafter he was paroled but the parole was subsequently revoked. He was arrested by the California authorities but instead of being returned to the state penitentiary he was turned over to federal authorities. He was convicted in the federal court on the charge of burglary of a post office and was sentenced to the federal penitentiary at McNeil Island. At the expiration of his term he was released from the federal penitentiary and was immediately taken into custody by a state parole officer of California holding a warrant upon extradition proceeding. Petitioner thereupon applied for a writ of habeas corpus and, after a hearing, he was discharged. The order was reversed on appeal by our supreme court. The court stated in its opinion:
"The question presented to us for decision is this: If a convicted person is taken into custody in another state, after his parole in that state has been revoked, and is thereafter surrendered by the parole officer to Federal authorities to answer for a Federal offense committed in the same state, and upon conviction of such offense is brought to this state for imprisonment in a Federal penitentiary, is such a person, upon his release from the Federal penitentiary in this state, subject to extradition as a fugitive from justice of the demanding state, within the meaning of the constitution and laws of the United States?" (pps. 107-108.)
Then, referring to the case ofIn re Roberts, supra, the court said:
". . . We there expressly held that if a party charged with a crime was physically present in the state of [[Orig. Op. Page 6]] location, at the time of the commission of the crime, and if thereafter he left that state, he is a fugitive from justice, within the meaning of the constitution and laws of the United States relating to interstate rendition, regardless of his motive or reason for leaving the state. (Authorities omitted.)
"The one distinguishing feature between that case and this is that in theRoberts case the petitioner left the demanding state voluntarily, while in this case he was removed by legal compulsion. Upon that distinction, petitioner claims the right to be discharged from custody and relieved from rendition to the state of California. His contention is that, since he did not 'flee from the justice' of that state, but was forcibly removed therefrom, he is not within the terms of the constitutional provision. The argument has, at first blush, a degree of plausibility, but mature consideration reveals its lack of merit.
"Extradition or rendition laws serve a public purpose that must be recognized. Their primary object is to prevent the successful escape of any person who has been accused of crime, whether convicted or unconvicted; for it is of vital importance to every state and to society in general that those who commit crimes in one state shall not find permanent asylum in another. The constitutional provision relating to fugitives from justice may be regarded as a solemn compact between the states, a faithful and vigorous observance of which will promote the general welfare and at the same time tend to maintain harmonious relations between the states as parties to the compact. While the rights of the individual are to be protected against illegal action, the rights of the states and of society to protect themselves against criminals are no less sacred or exigent. . . ." (Citations omitted.) (pps. 108-109.) (Emphasis supplied.)
See also,In re Fedder, 143 Cal.App. (2d) 103, 299 P. (2d) 881 (1956).
Our court therein recognized the decision in the case of In re Whittington, 34 Cal.App. 344, 167 Pac. 404 (1917) wherein the California court held that one forcibly removed from the demanding state could not thereafter [[Orig. Op. Page 7]] be considered as a fugitive thereof on the charge for which he was being held at the time extradition was granted. Our court stated this case was so often criticized by later cases of other jurisdictions that it was of doubtful value as precedent but, in any event, our court respectfully declined to follow it.
We will concede that the Anthony case can be distinguished upon its facts from the situation presented here. However, for the most part the distinction lies merely in the manner in which the person was, or would be, brought into the state. As previously stated, in the Anthony case the prisoner was forcibly brought into this state by the federal authorities; whereas, here the prisoner would be extradited to this state for the purpose of requiring him to stand trial for the crime of murder. An argument based on this distinction, to paraphrase the language of our court in theAnthony case, would at first blush have a degree of plausibility but mature consideration would reveal its lack of merit. Consequently, it is our opinion that our court, if presented with the question, would hold that a person extradited from another state, under the conditions outlined above, would be a fugitive from the state which initially granted extradition, thus allowing the governor of this state to issue his warrant upon demand from the governor of that state.
This conclusion is consistent with and therefore, supported by the reasoning of the tenth circuit court of the United States in the case ofWerntz v. Looney, 208 F. (2d) 102 (1953) wherein the court said:
". . . It is well settled that where a sovereignty or its courts have possession of a person, they cannot be deprived of the right to deal with such person until their jurisdiction and remedy are exhausted, and no other sovereignty or its courts have the right or power to interfere with such custody or possession. Lunsford v. Hudspeth, 10 Cir., 126 F. 2d 653, 655. It is equally well established that a prisoner may be taken from the custody of one sovereign, with its consent, to be tried in the courts of anotherwithout the loss of the right to possession of the prisoner. In discussing this rule we said in Lunsford v. Hudspeth, supra:
'As an easy and flexible means of administering justice and of affording each sovereignty the right and opportunity to exhaust its remedy for wrongs committed against it,there has evolved the now well established rule of comity which is reciprocal, whereby one sovereignty having exclusive jurisdiction [[Orig. Op. Page 8]] of a person may temporarily waive its right to the exclusive jurisdiction of such person for purposes of trial in the courts of another sovereignty. Thus the offender is accorded a speedy trial and the administration of justice is expedited by the availability of evidence, which might through lapse of time be lost, but such a waiver is a matter addressed solely to the discretion of the sovereignty, or its representatives having power to grant it. Ponzi v. Fesenden [258 U.S.254, 42 S. Ct. 309, 66 L.Ed. 607], supra, and Ex parte Aubert, D.C., 51 F.2d 136. The privileges granted by this flexible rule of comity should and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state, because neither sovereignty has the power to override it. Under the free exercise of this rule, no right or immunity granted by the constitution, laws, or treaties of the United States, is invaded or impaired.'" (p. 104.) (Emphasis supplied.)
See also,Moulthrope v. Matus, 139 Conn. 272, 93 A. (2d) 149; United States ex rel. Moulthrope v. Matus, 218 F. (2d) 466.
TheWerntz case was cited in Rau v. McCorkle, 47 N.J. Super 36, 135 A. (2d) 224 (1957). In the latter case, the governors of New Jersey and New York entered into an agreement relative to the extradition of a prisoner from New Jersey to New York for the purpose of trial and his return to New Jersey thereafter. In the course of its opinion the New Jersey court said:
"In any event, however, plaintiffs' underlying assumption that the cooperative disposition of the claims against them by the authorities of New York and New Jersey was required to be founded in affirmative statutory authorization enacted in both States is without justification. Principles of comity as between sovereigns amply warranted New Jersey, which has possession of and jurisdiction over plaintiffs in respect of crimes they were convicted of and charged with here, tosurrender them to New York for prosecution on charges pending against them there conditionally upon their redelivery here after disposition of the charges in New York. 22 Am.Jur., Extradition, § 64, p. 302; see Ex Parte [[Orig. Op. Page 9]] Lovingood, 58 Okl. Cr. 336, 53 P. 2d 290 (Cir. Ct. App. 1936); Werntz v. Looney, 208 F.2d 102, 104 (10 Cir., 1953); Lunsford v. Hudspeth, 126 F.2d 653, 655 (10 Cir., 1942). The arrangement thereby consummated served the public policy that plaintiffs should have the benefit of their constitutional right to speedy trial or other disposition of the New York charges which would take place at a time when the evidence to be relied on by both sides was fresh, at the same time securing to New Jersey its right to exact prior satisfaction from plaintiffs for their depravations here. Ibid. In that procedure plaintiffs can point no deprivation or impairment of any right of substance." (pps. 225-226.) (Emphasis supplied.)
Although the above language may not have been necessary for the court's opinion, it is, nevertheless, of assistance to us in this instance in that presented here.
On the basis of the sound reasoning of the foregoing cases which we believe to be in accord with the general policy and purpose of the laws governing extradition and in furtherance of an accused person's right to a speedy trial, we conclude:
(1) That a person who is forcibly removed from confinement in another state by extradition proceedings, initiated by this state, under the conditions herein specified, remains a "fugitive from justice" of the surrendering state, and, therefore, the governor of this state may, as in any other case of this nature, grant an extradition request for the return of the prisoner to the surrendering state for the purpose of requiring him to complete his sentence of confinement therein after trial in this state. In the event that the return extradition is tested by habeas corpus proceedings, we believe the right of the governor to grant extradition under the circumstances presented here would be sustained.
(2) The surrendering state by granting extradition under the facts outlined herein would not waive permanently, but merely temporarily, its exclusive jurisdiction over a prisoner.
We recognize that our conclusion is contrary to some of the decisions of the courts of other states. These decisions hold, in essence, that a person in custody for an offense in one state may be surrendered to another [[Orig. Op. Page 10]] state which requests his extradition but that such a surrender operates as a waiver of jurisdiction of the state over the person of the prisoner and that, therefore, he cannot thereafter be considered a fugitive from justice of the surrendering state so as to permit it to requisition him on termination of the proceedings against him in the second state. Some of these cases, among others, arePeople ex rel. Barrett, 383 Ill. 437, 50 N.E. (2d) 517 (1943);In re Whittington, supra; see also, 35 C.J.S., Extradition, § 21 (b), p. 350.
For the most part, the courts adhering to this rule have applied it where there has been no agreement between the respective governors as to the conditions on which the initial extradition was granted. In theBarrett case, the Illinois court held that the surrender of a prisoner operated as a waiver. However, it noted, in distinguishing the earlier decision of Commonwealth ex rel. Kamons v. Ashe, 114 Pa. Superior Ct. 119 [[114 Pa. Super. Ct. 119]], 173 Atl. 715 (1934) that in theKamons case the governors had entered into an agreement for the return of the prisoner following his trial in the demanding state, and that such agreement had not been entered into in theBarrett case.
As far as the California decision in In re Whittington, supra, is concerned, the appellate court of California inIn re Fedder, supra, in effect, indicated that the rule of the former case had been overruled by subsequent legislation on the subject. See also,In re Anthony, supra.
In any event, we do not believe our court would follow the decisions specifically mentioned above or any decision of a sister state wherein the doctrine of permanent waiver was adopted. Such a rule is, in effect, contrary to the conclusion reached by our court in theAnthony case.
Question (2): Does the governor of this state have the power to grant extradition of a person who is charged, convicted and sentenced to confinement for a violation of the laws of this state?
RCW 10.88.010 provides as follows:
"When a demand shall be made upon the governor of this state by the executive of any state or territory, in any case authorized by the Constitution and laws of the United States, for the delivery over of any person charged in such state or territory with treason, felony or any other crime the prosecuting attorney or any other prosecuting officer, when required by the governor, shall forthwith investigate the ground of such demand, and report to the governor, all material facts which may come to his knowledge as to the [[Orig. Op. Page 11]] situation and circumstances of the person so demanded, especially as to whether he is held in custody or is under recognizance to answer for any offense against the laws of this state or of the United States, or by force of any civil process, and also whether such demand is made according to law, so that such person ought to be delivered up; andif the governor be satisfied that such demand is conformable to law and ought to be complied with, he shall issue his warrant under the seal of the state, authorizing the agents who make such demand, either forthwith or at such time as shall be designated by the warrant, to take and transport such person to the line of the state at the expense of such agents, and shall also by such warrant require the civil officers within this state to afford all needful assistance in the execution thereof." (Emphasis supplied.)
Unquestionably this statute does not prohibit the governor from granting extradition of one confined in this state who is subject to extradition under the constitution and laws of the United States.
In the case ofIn re Summers, supra, our court, in discussing the power of the governor in honoring the demand of the governor of a sister state, said:
"The duty of a state in interstate rendition proceedings is prescribed in Art. IV, § 2, Cl. 2, of the Federal constitution. The procedure to be followed is set forth in 18 U.S.C.A. 60, § 3182. SeeIn re Wallace, 38 Wn. (2d) 67, 227 P. (2d) 737 (1951).
"Relator does not contend that the extradition papers are not in order. The governor of this state has issued a warrant or rendition upon them. His discretion in this regard is absolute, and his action is subject to judicial review only to see that the prerequisites to extradition are met. These are that the person sought to be extradited (1) is substantially charged with a crime against the laws of the demanding state, and (2) is a fugitive from justice. In re Wallace, supra; In re Varona, 38 Wn. (2d) 833, 232 P. (2d) 923 (1951)." (p. 420.) (Emphasis supplied.)
[[Orig. Op. Page 12]]
In an informal opinion to the governor dated August 17, 1936, this office, although recognizing authorities to the contrary, ruled that the governor had the power to grant extradition of a person confined in this state pursuant to a sentence of our courts. This conclusion was based upon the holding of the United States supreme court inRoberts v. Reilly, 116 U.S. 80, 29 L.Ed. 544, 68 S.Ct. 291 (cited by our court in the Anthony case) and the Illinois court inPeople v. Klinger, 319 Ill. 276, 149 N.E. 799 (1925).
In adhering to the conclusion reached in the foregoing opinion, it is our opinion that the governor, in the exercise of his discretion, may grant extradition of a person confined in this state who is substantially charged with an extraditable crime in another state and who is a fugitive from justice within the meaning of the constitution and laws of the United States.
Question (3): What effect, if any, would extradition of a person confined in this state have upon the right of this state to subsequently demand return of the prisoner for the purpose of requiring him to complete his sentence to confinement herein, after completion of his term of imprisonment in the demanding state?
The answer to this question involves the same principles of law discussed hereinbefore in resolving question one except that here the right of this state to return of the prisoner would be governed by the law of the state to which the prisoner was surrendered. It would appear that a second agreement between the respective governors specifically providing for a conditional waiver of custody would be sufficient to insure the return of the prisoner to this state even though the governor of Washington lacks express statutory power to enter into such an agreement. This lack of power will be discussed hereinafter.
This conclusion, that a waiver of this state's right to the return of the prisoner could be precluded by an agreement between the governors is contrary to the second conclusion reached in the informal opinion of this office hereinbefore mentioned. However, the conclusion therein was based principally upon the case of In re Whittington. In view of what we have previously said concerning this case, and further considering the modern operation of the rule of comity in extradition matters, as evidenced by the reasoning of the courts in Werntz v. Looney, supra, and Rau v. McCorkle, supra, we are of the opinion that our former ruling on this question (rendered in 1936) is no longer sound.
Question (4): Does the governor of this state have the power or authority under the law of this state to enter into an extradition agreement whereby a prisoner will be extradited from the asylum state to this state upon the [[Orig. Op. Page 13]] condition that he be returned to the surrendering state to serve the remainder of his sentence, should he be acquitted or received a sentence less than death for the crime of which he stands charged in this state?
There is no question but that the governor of this state lacks express statutory power to enter into such an agreement. Although more than forty states have adopted the Uniform Extradition Act, Washington up to the present time has not seen fit to do so. However, this is not determinative of the question presented above. As previously stated by our court, the power of the states in matters relating to interstate extraditions are contained in Article IV, § 2 of the United States Constitution and 18 U.S.C.A., § 3182. McClendon v. Callahan, supra; In re Summers, supra; In re Wallace, supra.
To paraphrase the language of the New Jersey court in the case ofRau v. McCorkle, supra: The cooperative disposition of claims against an accused or convicted person by two states, the laws of which he has violated, is not required to be founded inaffirmative statutory authorization enacted in both states. Principles of comity, as between sovereigns, amply warrant a state which has possession of and jurisdiction over a person charged and convicted of a crime to surrender him to another state, for prosecution on charges pending against him there, conditioned upon his redelivery to the surrendering state after disposition of the charges in the demanding state. See also,United States ex rel. Moulthrope v. Matus, supra.
Since such an agreement would serve the public purpose by the administration of justice and would also insure an accused person hisconstitutional right to a speedy trial at a time when the evidence is fresh, we are of the opinion that the courts of this state would sustain the power of the governor to enter into this type of agreement notwithstanding the lack of express state statutory authority. This conclusion, we believe, is consistent with the general statement of policy in extradition matters made by our court in In re Anthony, supra.
Question (5): What is the legal effect of an extradition as described hereinbefore?
The agreement described above would clearly be based on the reciprocal rule of comity and would evidence an intent on the part of the respective governors that the surrender of the offender would not constitute a complete waiver of the person of the prisoner so as to preclude his return to the surrendering state under the conditions outlined.
Such an agreement could not be enforced by either sovereign should one or the other fail to respect the demand of the other for extradition [[Orig. Op. Page 14]] provided in the agreement. However, as stated inWerntz v. Looney, supra:
". . . The privileges granted by this flexible rule of comityshould and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state, because neither sovereignty has the power to override it. . . ." (p. 104) (Emphasis supplied.)
We summarize our conclusions as follows:
(1) A state by surrendering a prisoner confined therein to this state for the purpose of trial under an extradition agreement, as hereinbefore discussed, would not waive its right to subsequently request return of the prisoner to serve the remainder of his sentence.
(2) In the event the prisoner is acquitted or receives a sentence less than that prescribed in the extradition agreement, the governor of this state would have the power and it would be his duty under the agreement, to honor a request for the person's return to the surrendering state.
(3) In the event the prisoner extradited to this state is sentenced to confinement herein but the governor grants extradition to return him to the surrendering state, this should be done in accordance with a second extradition agreement, insuring the right of this state to demand the prisoner to serve his sentence herein after completion of his term in the surrendering state, if that is desired.
We trust this information will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
ROBERT J. DORAN
Assistat Attorney General