Whether you are a prosecutor, a lawyer who regularly practices criminal defense, or a lawyer who has friends and family, it is likely that at some point you will be called upon to assist with a situation in which an out-of-state resident has been arrested here in Tennessee on a fugitive-from-justice warrant — what we usually refer to as extradition proceeding.

Extradition decisions often have to be made fast. Conventional wisdom teaches that failing to waive extradition will result in making the defendant sit in jail longer. But that is not always the case.1 Misunderstanding extradition procedure often results in a person being unnecessarily detained and subjected to an arduous and expensive trip through various jails on the way back to the requesting state.2

Advocacy Can Make a Difference

With reasonable effort, counsel can sometimes prevent unnecessary suffering for a client and the client’s family. I’ve seen two recent cases that illustrate that the efforts of defense counsel and discussions with prosecutors can make a big difference. The defendants were charged with similar felony offenses. In the first case, the defendant was charged in Tennessee but arrested in another state. Unfortunately, the attorney appointed to represent the defendant in the extradition proceeding had been taught that quick waiver of extradition is the best strategy. No effort was made to contact the Tennessee district attorney, Tennessee defense counsel or to negotiate a bond. As a result, the client was transported from one local jail to another and did not make it to Tennessee for several weeks. His family often did not know where he was, and he did not have access to his medication. As soon as he got here, however, he was released on bond, just as he would have been if originally arrested in Tennessee.

In the other case, the client was arrested in Tennessee based on charges from another state. Somewhat to the surprise of the judge, I declined to waive extradition, sought bail and got counsel in the receiving state to negotiate bail in that state. The client was released, traveled with his family to the receiving state, and appeared in court as directed. The prosecutors got him into court quickly, and he didn’t have to suffer the long trip by bus from facility to facility.

Bail Is Authorized by Statute

One reason counsel often waive extradition is that the nature of the proceeding is limited. You hear that the only question is whether the defendant is the same person charged with the felony in the requesting state. Another reason counsel often hurry to waive extradition is the common belief that a person arrested on a fugitive warrant must be held in the local jail pending the extradition hearing and cannot make bail. That is not what our statute says.

Part of the confusion comes from the fact that the statute provides:

Whenever any fugitive from justice awaiting extradition to another state files a protest or requests a hearing before the governor of this state, prior to the returning of the fugitive to the other state, no judge or court in this state shall have the authority to order the release or discharge of the fugitive, pending the final disposition of the extradition proceeding before the governor.3

But that provision applies only after a judge or magistrate has held a hearing and ruled the person is subject to extradition and a governor’s warrant has been obtained as the result of the receiving state’s request. Rather than prohibiting bail, our statute makes bail mandatory prior to the hearing before a judge or magistrate:

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, the judge or magistrate must admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in any sum that the judge or magistrate deems proper, for the person’s appearance before the judge or magistrate at a time specified in the bond or undertaking, and for the person’s surrender, to be arrested upon the warrant of the governor of this state.4

Practical Recommendations for Defense Counsel and Prosecutors to Consider

If bail can be secured pending the court hearing, that gives counsel time to try to work out a way for the client to be released with an agreement that the defendant will appear in the requesting state at a certain time. Even if the court denies bail, it may be worth taking the time created by refusing to waive extradition in order to try to negotiate release.

The defendant is going to need counsel in the receiving state anyway, so it often helps to go ahead and associate counsel in the receiving state to help negotiate with the prosecutors there.

Because there may be no benefit to either party for a defendant to have to be transported and housed in local jails on the way to the receiving state, prosecutors and defense counsel will often agree to bail in the receiving state.

Assuming the asylum state is Tennessee, once bail is agreed in the receiving state, the fugitive warrant can either be dismissed or the Tennessee bail can remain in place until the defendant reports to court in the requesting state. However, if extradition has already been waived, the local judge has lost jurisdiction to do anything to release the defendant. That is why it is important not to waive extradition while an attempt is being made to secure an agreement.

Prosecutors also need to know these standards because they need to be able to weigh whether it is in the state’s interest to require the defendant to be transported back to the receiving state or whether it would be better to get them there by agreement (and bail condition).

Here are the quick takeaways on extradition issues:

1. Defense counsel should not “waive” extradition without exploring options for release.
2. The District Attorney’s Office in the requesting state should be contacted because it may be in their interest for the defendant to be released to appear at a date certain more quickly than if extradited.
3. The reason that you shouldn’t waive extradition right away is that there is nothing your local judge can do after extradition is waived.

Conclusion

While there may be reasons that the result will be that the defendant has to stay in custody and be transported to the receiving state, that isn’t always the case, and it isn’t always better for the prosecution. So counsel should never waive extradition without a careful examination of the individual circumstances of the defendant’s situation. |||

WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.   

 NOTES
1. As with many of the creative aspects of my practice, I’ve been schooled on this issue by my partner Stephen Ross Johnson.
2. Whether the person is arrested on a pending fugitive warrant sought by another state or is arrested without a warrant after local authorities learn that charges are pending elsewhere, the procedure to be used is governed by the Uniform Criminal Extradition Act. Tenn. Code Ann. 0-9-101.
3. Tenn. Code Ann. 40-9-108(b). See also Mandina v. State, 749 S.W.2d 472 (Tenn. Crim. App.1985).
4. Tenn. Code Ann. 40-9-106.