Waiver of Extradition Requirements Under ICJ
Principal among the provisions of the ICJ and its duly authorized rules is the member states’ waiver of formal extradition requirements for return of juveniles on cooperative supervision who violate the terms and conditions of their supervision. The ICJ specifically provides among its purposes is to “return juveniles who have run away, absconded or escaped from supervision or control or have been accused of an offense to the state requesting their return.” Interstate Compact for Juveniles, art. I(A) (2008). Although neither Article I of the ICJ nor ICJ Rules related to waiver of rights have been the subject of judicial interpretation, challenges to the constitutionality of similar waiver provisions contained in other compacts have not been successful. Courts have held that an interstate compact authorized by Congress relating to interstate apprehension and retaking of offenders without formalities and without compliance with extradition laws does not violate due process of law. E.g., Gulley v. Apple, 210 S.W.2d 514, 518-19 (Ark. 1948); Woods v. State, 87 So. 2d 633, 637 (Ala. 1956); Ex parte Tenner, 128 P.2d 338, 341 (Cal. 1942); Louisiana v. Aronson, 252 A.2d 733, 735 (N.J. Super. Ct. App. Div. 1969); People ex rel. Rankin v. Ruthazer, 107 N.E.2d 458, 460 (N.Y. 1952); Pierce v. Smith, 195 P.2d 112, 116 (Wash. 1948), cert. denied, 335 U.S. 834 (1948). Extradition is not available even in the absence of a written waiver by the offender as the interstate compact operates to waive any extradition rights. E.g., People v. Bynul, 524 N.Y.S.2d 321, 328 (N.Y. Crim. Ct. 1987).
Furthermore, each applicant for a transfer of supervision must sign a waiver concerning return or extradition to the sending state. Id at Rules 4-102(2), 4-103(2), and 5-103(3). The Form VI, Application for Services and Waiver, contains the following waiver related to extradition requirements:
I further understand that if I fail to keep these promises, I may be returned to the sending state, and I hereby waive any right that I may have to contest my return to the sending state. I have read the above, or have had the above read and explained to me, and I understand its meaning and agree thereto. I understand and accept that a failure to comply with these terms and conditions may result in sanctions in both the sending and/or receiving state.
Pursuant to ICJ Rule 5-103(3)(b), if The Form VI, Application for Services and Waiver, has the appropriate signatures; no further court procedures will be required for the juvenile’s return.” For discussion of signature requirements, see ICJ Ad. Op. 02-2015 (Interstate Comm’n for Juveniles 2015).
Courts considering similar proceeding for adult offenders have repeatedly determined that the offender’s agreement to waive extradition as a condition of relocating waives the need for formal extradition proceedings upon demand by the sending state that an offender be returned. Cf. Wymore v. Green, 245 Fed. Appx. 780, 782-83 (10th Cir. 2007) (plaintiff's waiver of extradition renders any formal request or permission from the requesting and sending state governors unnecessary.); see also People v. Gordon, 672 N.Y.S.2d 631 (N.Y. Crim. Ct. 1998). Under the Interstate Compact for Adult Offender Supervision, courts have upheld the execution of a similar extradition waiver at the time of transfer and held that such a waiver is valid. E.g., Evans v. Thurmer, 278 Fed. Appx. 679, 681 (7th Cir. 2008), O'Neal v. Coleman, No. 06-C-243-C, 2006 WL 1706426, at *5 (W.D. Wis. June 16, 2006).
It is also important to note that a sending state has authority at all times to enter a receiving state and retake a juvenile, subject to certain requirements. See ICJ Rule 7-106(7) (Interstate Comm’n for Juveniles 2024). A waiver signed as part of the application for services (Form VI) applies to any member state where the juvenile might be located. However, authorities may be required to present evidence that the juvenile is the person being sought and that they are acting with lawful authority, for example, they are a lawful agent of the state enforcing a properly issued warrant. Id at Rules 4-102(2) and 5-103(3); see also Ogden v. Klundt, 550 P.2d 36, 39 (Wash. Ct. App. 1976).
Habeas corpus is generally unavailable to offenders being held pending return to the sending state under an interstate compact. E.g., Stone v. Robinson, 69 So. 2d 206, 210 (Miss. 1954) (prisoner not in Mississippi as a matter of right but as a matter of grace under the clemency extended by the Louisiana parole board; prisoner subject to being retaken on further action by the parole board); State ex rel. Niederer v. Cady, 240 N.W.2d 626, 628 (Wis. 1974) (constitutional rights of an offender whose supervision was transferred under the compact were not violated by denial of an extradition hearing, as the offender was not an absconder but was in another state by permission and therefore subject to the retaking provisions of the compact); Cook v. Kern, 330 F.2d 1003, 1004 (5th Cir. 1964) (whatever benefits the offender enjoyed under the Texas extradition statute, he has not been deprived of a federally protected right and therefore a writ of habeas corpus was properly denied; even assuming that a constitutional right was involved, the parole agreement constitutes a sufficient waiver.) However, a person seeking relief from incarceration imposed as the result of allegedly invalid proceedings under the ICPP may utilize the remedy of habeas corpus to challenge that incarceration. People v. Velarde, 739 P.2d 845, 848 (Colo. 1987). Other jurisdictions have also recognized the availability of this remedy, albeit for limited issues, to offenders seeking to challenge the nature and result of proceedings conducted pursuant to provisions equivalent to those of the Interstate Compact for Probation and Parole (the predecessor to the modern Interstate Compact for Adult Offender Supervision). See United States ex rel. Simmons v. Lohman, 228 F.2d 824 (7th Cir. 1955); Petition of Mathews, 247 N.E.2d 791 (Ohio Ct. App. 1969); Ex Parte Cantrell, 362 S.W.2d 115 (Tex. 1962).
For further discussion of retaking/return after failed transfers of supervision, see infra Section 4.6.