In my last post, I noted that I am doing more work in the area of extradition. The news generated a lot of great questions, many of which I hope to address in future posts. This next installment of extradition-related blogs details the basic principles of detention and release in extradition cases.
Arrest on a fugitive warrant
A person charged in another state with an offense punishable by death or life imprisonment has no right to pretrial release. G.S. 15A-736. Such a defendant should be committed to jail without conditions of release being set. The initial commitment is up to thirty days to allow time for issuance of a governor’s warrant. G.S. 15A-735. If a governor’s warrant has not been issued by the time specified in the warrant, a judge or magistrate may discharge the person or recommit the person for an additional period of no more than sixty days. G.S. 15A‑737. The matter is usually continued in thirty-day increments for a total of ninety days.
If a person is charged in another state with an offense that is not punishable by death or life imprisonment, then that person may be afforded bail by bond with sufficient sureties (i.e., a secured bond). A person’s release on bail by bond with sufficient sureties is conditioned on the person (1) returning for a district court hearing at a specified time and (2) surrendering whenever a governor’s warrant is issued. G.S. 15A-736. If a governor’s warrant has not been issued by the time specified in the bond, a judge or magistrate may discharge the person or continue the case for no more than sixty days. G.S. 15A-737. The matter is usually continued in thirty-day increments for a total of ninety days.
At the appearance before a judge, the person may waive extradition. If extradition is waived, any bond previously set is revoked. See 50 N.C. Op. Atty. Gen. 40 (1980). The person will be turned over to an agent from the demanding state for transport. The agent should make arrangements to take custody of the person at the earliest possible date after receiving notice that the person is ready to be surrendered. While there is no controlling North Carolina statute, federal law indicates that fugitives may remain in custody up to thirty days to await pickup. 18 U.S.C. § 3182. If not picked up within thirty days, the person may apply for a writ of habeas corpus demanding release. A judge is permitted but not required to dismiss the matter.
Expiration of a fugitive warrant
If no governor’s warrant has been issued within ninety days of a person’s arrest on a fugitive warrant, then the fugitive warrant must be dismissed, though the person remains subject to rearrest on a governor’s warrant. Brightman v. Withrow, 304 S.E.2d 688 (W. Va.1983). An officer who wishes to arrest a person on a fugitive warrant after this ninety-day period must submit an application for the issuance of a new warrant. There is no statutory bar to the issuance of a subsequent fugitive warrant for the same charges. However, given that a person may be rearrested with a governor’s warrant even after a fugitive warrant has been dismissed, a subsequent fugitive warrant may not always be necessary.
Arrest on a governor’s warrant
A person arrested on a governor’s warrant has no right to pretrial release. See 50 N.C. Op. Atty. Gen. 40 (1980). Such a defendant should be committed to jail without conditions of release being set. The magistrate should inform the person of the charges and that a governor’s warrant has been issued. The magistrate should also inform the person of the right to communicate with counsel and friends. The magistrate orders that the person be taken to district court at the earliest possible court session to have an appearance before a district court judge.
Once a person has been arrested on a governor’s warrant, the demanding state is usually given thirty days to retrieve the person, provided that the person has no criminal charges pending in North Carolina. While there is no controlling North Carolina statute, federal law indicates that fugitives may remain in custody up to thirty days to await pickup. 18 U.S.C. § 3182. If not picked up within thirty days, the person may apply for a writ of habeas corpus demanding release. A judge is permitted but not required to dismiss the matter.
Pending North Carolina charges
G.S. 15A-739 allows the Governor of North Carolina to delay extradition if the person being sought by the demanding state has been charged with a crime in North Carolina. If a prosecutor chooses to pursue local charges prior to extraditing, it is recommended that any active governor’s warrant be held in abeyance pending the outcome of the local charges. This prevents a defendant who is able to satisfy conditions of release on local charges from being held solely on the governors warrant while the local charges are pending. Once the North Carolina charges reach disposition and any active punishment is served, the person will be arrested (or re-arrested) on the governor’s warrant. Once the time for filing a habeas petition has passed or the petition has been denied, the demanding state is notified that the person is available for extradition and the thirty-day clock for retrieval by the demanding state begins.
As always, I welcome your questions and comments via email at bwilliams@sog.unc.edu.
