The following article written by
Attorney Eric Nemecek appears in Volume 2, Issue 9 of Attorney at Law Magazine® Cleveland.
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
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.
Are you facing a serious criminal charge? If so, the dedicated and award-winning
Cleveland criminal defense attorneys at
Friedman & Nemecek, L.L.C. are ready to hear your story.
Call us today to start exploring your legal options with an aggressive and knowledgeable