An interstate extradition crisis is brewing. As states increasingly
criminalize conduct whose protection is a core public policy of other states,
such as abortion, gender-affirming care, and gun possession, it appears
imminent that a governor will receive an unwelcome extradition demand.
Under many circumstances, federal law requires that governors arrest and
extradite fugitives upon demand of the state from which they fled. This
mandate presents a grave and immediate threat to interstate comity and the
rule of law.
There is, however, another way forward. The states may, through
collective action, provide governors the power to reject unwelcome
extradition demands without running afoul of the U.S. Constitution or federal
law. Surprisingly, this end run would realign extradition practice with nearly
two hundred years of history and tradition. From the nation’s founding until
the U.S. Supreme Court decided Puerto Rico v. Branstad in 1987, the federal
government declined to enforce federal extradition law. To fill this vacuum,
the states created laws and practices that diverged from federal law in many
ways, including allowing governors to refuse extradition demands on
equitable grounds.
How well did this more flexible approach work in actual practice? An
original analysis of newspaper coverage of equitable extradition refusals
between 1930 and 1987 reveals that governors used this power judiciously:
refusing extradition rarely and typically in cases featuring extraordinary facts.
Though many of these cases touched on the most polarizing issues of their
time—including Black refugees from chain gangs and lynch mobs in the Jim
Crow South—even the most contentious refusals engendered only muted
responses. Thus, the prior state-driven regime of extradition discretion
seemingly succeeded in policing itself. In a moment when the Supreme Court
increasingly turns to history and tradition to interpret the Constitution, in the
extradition context, the states might turn to history and tradition to circumvent
it.
