The Fugitive From Justice Clause

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

—Zack Smith

Introduction

The Fugitive from Justice Clause provides a mechanism by which a person who is charged with a crime and flees from one state to another state can be returned. This process, known as extradition, traces its roots back to antiquity. In 1793, Congress enacted an extradition law that seemed to impose a duty on states to extradite fugitives. In 1861, the U.S. Supreme Court held that the states were not obligated to return fugitives, but the Court reversed that decision more than a century later. Today, most states have adopted the Uniform Criminal Extradition and Rendition Act, which imposes specific obligations on states to extradite fugitives.

History Before 1787

For millennia, sovereigns have extradited fugitives to other sovereigns. Extradition agreements date back to the Egyptian, Hittite, and Roman empires.¹ In 1174, England and Scotland negotiated a treaty to extradite traitors and felons.² This practice carried forward to the colonial era. By 1643, colonial governments in Massachusetts and Connecticut “pledged themselves to each other” to extradite fugitives from justice.³

After independence, the Articles of Confederation implemented an extradition process for the new states to follow.⁴ This provision applied to “any Person guilty of, or charged with, treason, felony, or other high misdemeanor in any state.” If that person “fle[d] from Justice” and was “found in any of the united states,” the “Governor or executive power of the state from which he fled” had the ability to “demand” his return. After that demand was made, the fugitive was supposed to “be delivered up, and removed to the state having jurisdiction of his offence.”

The Constitutional Convention

The delegates to the Constitutional Convention adopted the provision from the Articles of Confederation with only minor alterations. The Committee of Detail’s report, delivered on August 6, provided that “[a]ny person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.”⁵ On August 28, “high misdemeanor” was changed to “other crime.”⁶ The change was made “to comprehend all proper cases,” as the former language had a “technical meaning too limited.”⁷ This proposal was approved without objection.⁸ Charles Pinckney of South Carolina noted that the delegates chose to broaden the language because “a State should always be at liberty to demand a fugitive from justice, let his crime be what it may.”⁹ At that juncture, “high crimes and misdemeanors” had not yet been added to the Impeachment Clause. (See Essay No. 117.)

Pinckney and Pierce Butler of South Carolina moved “to require fugitive slaves and servants to be delivered up like criminals.”¹⁰ Because of various objections, their proposal was withdrawn “in order that some particular provision might be made apart from this article.”¹¹ This other “particular provision” would later become the Constitution’s Fugitive Slave Clause. (See Essay No. 142.)

The Fugitive Slave Act of 1793

The Fugitive from Justice Clause garnered little attention during the ratification debates, but concerns arose after ratification over whether this provision was self-executing (enforceable by its own terms) or whether Congress needed to act.

In 1791, Pennsylvania Governor Thomas Mifflin demanded the return of Virginians who were indicted for “forcibly remov[ing]” a “colored man” from Pennsylvania with the intent to “enslave him.”¹² However, the Attorney General of Virginia determined that “the offence charged in the indictment was not such a crime as, under the constitution, required a surrender.”¹³ The Virginia Attorney General further ruled that no “positive law,” or federal statute, imposed an obligation on the state to extradite fugitives. In other words, the Fugitive from Justice Clause was not self-executing. Rather, Congress needed to enact legislation to implement this clause. As a result, “[t]he governor of Virginia refused to arrest the defendants, and deliver them to the authorities of Pennsylvania.”¹⁴ The Pennsylvania governor transmitted these correspondences to President George Washington, “who laid them before congress.”¹⁵ Justice John McLean, writing half a century later, observed that “this correspondence, and the forcible removal of the colored person . . . gave rise to” federal legislation.¹⁶

In February 1793, the Second Congress passed the “Act respecting fugitives from justice, and persons escaping from the service of their masters.”¹⁷ This law, which implemented the Fugitive from Justice Clause, is better known as the Fugitive Slave Act. Under the statute, the requesting state must produce “a copy of an indictment found” or “an affidavit made before a magistrate of any state or territory” charging the “person so demanded” with a crime. And that document must be “certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled.” It would then be “the duty of the executive authority of the state or territory to which [the fugitive] shall have fled, to cause him or her to be arrested and secured” and to provide notice of the arrest to the demanding state executive or his agent. Further, the apprehending state executive had to “cause the fugitive to be delivered to such agent [of the demanding state] when he shall appear.” An agent was “empowered” to transport the fugitive, and it would be a crime to “rescue the fugitive.” However, if the agent did not appear for six months, “the prisoner may be discharged.” Finally, the state making the request would pay for all costs or expenses.

Almost fifty years later, in Prigg v. Pennsylvania (1842), Justice Joseph Story explained that the 1793 act “may be truly said to cover the whole ground of the Constitution, both as to fugitives from justice, and fugitive slaves.”¹⁸ He observed that Congress has “discretion” in meeting “the exigencies of the Constitution” and that “the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject; and by necessary implication prohibit it.”¹⁹ Story explained in his Commentaries that the Fugitive from Justice Clause would “promote harmony and good feelings among the states” and would “give strength to a great moral duty, which neighbouring states especially owe to each other, by elevating the policy of the mutual suppression of crimes into a legal obligation.”²⁰ Story described this principle as both “useful in practice” and “unexceptionable in its character.”

Is Extradition Mandatory?

Nonetheless, Prigg also ruled that Congress could not compel states to enforce the Fugitive Slave Act.²¹ This holding was a precursor to the modern anti-commandeering doctrine. About twenty years later, in Kentucky v. Dennison (1861), the Court reached a similar holding about the Fugitive from Justice Clause: the federal government lacked the power to compel the states to extradite a fugitive.²² Chief Justice Roger B. Taney, who wrote the majority opinion, observed that the words “it shall be the duty” in the 1793 act “were not used as mandatory and compulsory, but as declaratory of the moral duty which this compact created, when Congress had provided the mode of carrying it into execution.” Taney reasoned that there is no clause “in the Constitution which arms the Government of the United States with this power” to compel state officials to take certain actions.²³ Such a “power,” Taney wrote, “would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights.” If the federal government had the power to “compel” a “duty” on a state official, “it might overload the officer with duties which would fill up all his time.”²⁴

More than a century later, the Court overruled Dennison in Puerto Rico v. Branstad (1987), holding that the federal courts could compel states to comply with the Fugitive from Justice Clause through writs of mandamus and other mechanisms.²⁵ Justice Thurgood Marshall, writing for the majority, found that Dennison “is the product of another time” and “may stand no longer” because “[t]he conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development.”²⁶ Marshall made this remark a decade before the Court enunciated its modern anti-commandeering doctrine in Printz v. United States (1997).²⁷

State Powers over Extradition

Dennison and other cases held that Congress possessed exclusive authority to legislate with respect to extradition.²⁸ But the Supreme Court reversed course in Innes v. Tobin (1915) and found that states also could legislate in this area.²⁹ One scholar described Innes as “a somewhat unsatisfying opinion, citing no authority for its reasoning.”³⁰ Later cases helped to explain the limits and contours of the states’ power. For example, a state executive who receives an extradition request may make sure that a facially valid charge exists in the state requesting extradition but may not look into the substantive merits of the case against the accused.³¹

Questions also arose over what it meant to “flee from Justice.” Initially, some commentators thought that someone involuntarily removed from a state could not be considered a fugitive from justice, and questions also arose over whether someone had to flee with the explicit purpose of avoiding justice. If the person left the state for another reason, is he still a fugitive from justice? The Supreme Court answered in the affirmative and made it clear that a demanding executive must show only that the person had been present in the state when the alleged crime occurred and that he subsequently left the state.³² But a state may satisfy its own laws before returning an individual to another state to face charges.³³ Furthermore, by its terms, the Fugitive From Justice Clause requires extradition only for criminal matters, including misdemeanors, but not for civil offenses.

Today, most states have adopted some form of the Uniform Criminal Extradition and Rendition Act.³⁴ One scholar noted that “the need for [these laws] grew directly out of the Dennison and Prigg opinions and the lack of any enforcement mechanism external to the states for the [Fugitive from Justice] Clause.”³⁵ The purpose of these state laws was to transform the extradition process from one essentially “governed by comity to one governed by compulsion.”³⁶ These Uniform Acts were largely promulgated and adopted before the Supreme Court reversed its earlier decisions and held that the federal government could enforce the constitutional and statutory obligations of state officials in the extradition context, and they allow in some instances for extradition beyond what the Constitution demands.

Open Questions

• Did the Fugitive from Justice Clause, standing by itself, impose obligations on states, or did Congress need to enact enforcement legislation? In other words, was the Clause self-executing?
• In 2023, Florida Governor Ron DeSantis stated that he would “not assist in the extradition” of former President Donald Trump, who was a Florida resident, to New York. DeSantis cited the “questionable circumstances” of the indictment. Would this refusal to extradite have been constitutional?³⁷

1. Peter D. Sutherland, The Development of International Law of Extradition, 28 St. Louis U. L.J. 33, 33 (1984). ↩︎
2. Id. ↩︎
3. Kentucky v. Dennison, 65 U.S. 66, 101 (1861). ↩︎
4. Articles of Confederation, art. IV, § 2. ↩︎
5. 2 Farrand’s 187–88. ↩︎
6. 2 Farrand’s 443. ↩︎
7. Id. ↩︎
8. Id. at 437. ↩︎
9. 3 Farrand’s 112. ↩︎
10. Id.; 2 Farrand’s 443. ↩︎
11. Id. ↩︎
12. Prigg v. Pennsylvania, 41 U.S. 539, 666 (1842) (McLean, J., dissenting). ↩︎
13. Id. ↩︎
14. Id. at 666–67. ↩︎
15. Id. at 667; Letter from Thomas Mifflin to George Washington (July 18, 1791), https://perma.cc/DA6F-YZYL. ↩︎
16. Prigg, 41 U.S. at 667; Paul Finkelman, The Kidnapping of John Davis and the Adoption of the Fugitive Slave Law of 1793, 56 J. South. Hist. 397–422 (1990). ↩︎
17. 1 Stat. 302 (1793); 18 U.S.C. § 3182 (current codification). ↩︎
18. 41 U.S. 539, 617 (1842). ↩︎
19. Id. ↩︎
20. 3 Story’s Commentaries § 1803. ↩︎
21. Printz v. United States, 521 U.S. 898 (1997). ↩︎
22. 65 U.S. (24 How.) 66 (1861). ↩︎
23. Id. at 107. ↩︎
24. Id. at 107–08. ↩︎
25. Puerto Rico v. Branstad, 483 U.S. 219 (1987). ↩︎
26. Id. at 230. ↩︎
27. 521 U.S. 898 (1997). ↩︎
28. Christopher N. Lasch, Rendition Resistance, 91 N.C. L. Rev. 149, 196 n.289 (2013). ↩︎
29. Innes v. Tobin, 240 U.S. 127 (1915). ↩︎
30. Lasch, supra at 196 n.290. ↩︎
31. Michigan v. Doran, 439 U.S. 282 (1978). ↩︎
32. Roberts v. Reilly, 116 U.S. 80 (1885); Drew v. Thaw, 235 U.S. 432 (1914). ↩︎
33. Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371 (1873). ↩︎
34. Milton Hirsch, Midnight Run Re-Run: Bail Bondsmen, Bounty Hunters, and the Uniform Criminal Extradition Act, 62 U. Mia. L. Rev. 59 (2007); Leslie W. Abramson, Extradition in America: Of Uniform Act and Governmental Discretion, 33 Baylor L. Rev. 793 (1981). ↩︎
35. Lasch, supra at 200. ↩︎
36. Id. ↩︎
37. Shane Goldmacher, DeSantis Says Florida Wouldn’t Aid Trump’s Extradition to New York, N.Y. Times (Mar. 30, 2023), https://perma.cc/332K-67EZ. ↩︎