New Probation Condition for Felons: Mandatory Waiver of Extradition

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In Session Law 2016-77, the General Assembly made some changes the law of probation, post-release supervision, and parole. Though styled as “an act to amend provisions of the Justice Reinvestment Act,” the latest legislation makes some changes that go beyond the 2011 JRA. Today’s post summarizes one of the changes: a new requirement for supervised felony probationers to make a prospective waiver of extradition.

New G.S. 15A-1343(17) makes it a regular condition of probation that a probationer “[w]aive all rights relating to extradition proceedings if taken into custody outside of this State for failing to comply with the conditions imposed by the court upon a felony conviction.” This provision is directed at potential fugitive probationers (those supervised in North Carolina who are found elsewhere after a violation), not those who are properly being supervised in another state on North Carolina’s behalf under the Interstate Compact for Adult Offender Supervision. (Of course, Compact offenders also waive their extradition rights as part of their application for transfer. Rule 3.209.)

Perhaps anticipating the strangeness of a self-executing, mandatory waiver that (as a regular condition) need not be stated aloud in open court, the new law also includes a provision requiring every defendant placed on probation to submit to the Division of Adult Correction a signed document stating that he or she will comply with the conditions of probation imposed by the court, and that he or she waives all rights relating to extradition proceedings if taken into custody outside of North Carolina. G.S. 15A-1343(c). The extradition waiver portion applies only to those convicted of a felony (which I think probably means on probation for a felony conviction), but all supervised probationers, including misdemeanants and impaired drivers, must sign the general assertion that they will comply with the conditions imposed by the court. (The probationer is not required to make any promises about conditions imposed by a probation officer through delegated authority.) DAC is directed to file the signed document with the clerk of superior court. I suspect Community Corrections will use a modified version of an existing form, the DCC-2, to satisfy this requirement.

Having the probationer sign a document makes the extradition waiver feel more like a waiver (and is arguably required under the procedure set out in G.S. 15A-746, North Carolina’s enactment of the Uniform Criminal Extradition Act). But if it’s mandatory to sign the document stating that you mandatorily waive extradition, is it really a voluntary waiver of the constitutional rights connected to extradition proceedings? In an Interstate Compact scenario, the person waives those rights in exchange for the privilege of being supervised in another state. In a regular, non-Compact case, the defendant will not be executing the waiver in exchange for anything. It’s just mandatory.

What if a person refuses to waive, or to sign the document stating that he or she will comply with probation generally? I suppose that would be a technical violation for which the court could impose confinement in response to violation (CRV) or some other sanction. It’s not a new crime or absconding, so the person could not be revoked. With that in mind, I don’t think this requirement to sign the document will evolve into a new way for a probationers to refuse probation altogether (an option that was repealed in 1995).

Assuming the waiver is valid, is it enforceable? Many courts have upheld so-called pre-signed waivers of extradition. See, e.g., Goode v. Nobles, 518 S.E.2d 122 (Ga. 1999). See generally Robert L. Farb, State of North Carolina Extradition Manual 60 (3d ed. 2013). But some have not. See, e.g., People v. Isaacs, 527 N.Y.S. 2d 162, 165 (1988) (invalidating a prospective waiver of extradition, signed as part of an acknowledgment of the terms of probation, because it was “far too cursory” and did “not reflect any explanation of the extradition process nor any true understanding by the defendant of that process.”). Thus, whether or not the waiver will be honored may depend on the jurisdiction to which the fugitive probationer flees, and the circumstances under which it was signed.

The new condition becomes effective on December 1, 2016, and applies to offenses committed on or after that date.

One comment on “New Probation Condition for Felons: Mandatory Waiver of Extradition

  1. […] posts looked at the new probation condition requiring a waiver of extradition and the new, new rules for jail credit for CRV. Today’s post covers the rest of this year’s […]

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