FUGITIVE FROM JUSTICE

The second clause of Article IV, section 2, of the Constitution provides that a person charged with a crime in one state, who has fled to another to escape justice, "shall, on demand of the executive authority of the state from which he fled, be delivered up.…" The clause makes rendition (or extradition) of fugitives from justice a duty of state officials.

Although extradition of escaped felons from one political jurisdiction to another was long recognized as an obligation of comity in international law, the process is not automatic. Between sovereign nations, extradition normally occurs only when there is a treaty providing for it. Permanent extradition arrangements were not common before the nineteenth century.

Among the earliest standing arrangements for extradition of accused criminals was the one embodied in the articles of the New England Confederation (1643), which provided for the surrender of a fugitive to the colony from which he had fled when demand was made by two magistrates of that colony. Interstate extradition has been from the first, therefore, a feature of American federalism. The articles of confederation contained a provision identical to that in the Constitution. The Constitution's fugitive from justice clause was proposed in the constitutional convention as part of the New Jersey Plan and was given its present form by the committee of detail.

edmund randolph, the first attorney general, issued an opinion that the fugitive from justice clause was not self-executing, that is, the Constitution did not specify what official was to render fugitives or establish enforcible procedures. Congress therefore, in 1793, passed a law imposing the duty of rendition on state governors.

The first test of the clause in the Supreme Court was in Kentucky v. Dennison (1861). The governor of Ohio had refused to honor Kentucky's demand that he render a fugitive wanted in Kentucky for aiding the escape of a slave. Chief Justice roger b. taney, for the Court, rejected Ohio's contention that the crime in question was not one contemplated by the Framers of the Constitution as within the scope of the clause; the clause extends to any act defined as a crime in the place where it was committed. The Court held that rendition of a fugitive was a ministerial act, one which a state governor has a duty to perform and not one over which he has any discretion. However, the Court also held that there was no power in the federal courts to compel compliance with the duty. Subsequently, governors have occasionally refused, for various reasons, to deliver fugitives to the states in which they were wanted.

Fugitives' careers are complicated by other factors. In 1934, Congress made it a federal crime to travel in interstate commerce with the intent to avoid prosecution or confinement. The federal crime must be tried in the state from which the fugitive fled, and one practical effect of the statute is to return fugitives to the states in which they are wanted, facilitating arrest on state charges. Interstate rendition has also been facilitated by interstate compacts and by adoption in most states of the Uniform Criminal Extradition Act.

Dennis J. Mahoney
(1986)