Extradition Laws And Procedures In Colorado
By Colorado Criminal Defense Lawyer – Attorney H. Michael Steinberg
Extradition Laws And Procedures In Colorado can be complex and difficult to understand. When you are arrested on a Colorado warrant in another state – what happens behind the scenes as regards the decision to “bring you back” and what then follows may confuse you… This article is intended to clarify the procedural protections that exists in under Colorado’s extradition laws.
Attribution for this article is given to the State of Maryland for their excellent manual on the topic of this web page.
The states all have their own laws affecting extradition. Many – such as Colorado – have passed the Uniform Criminal Extradition Act (The UCEA). This law – found in Colorado at § 16-19-101 and the sections that follow is known simply and is cited as the “Uniform Criminal Extradition Act”. This Law has been adopted in whole or in part by 47 states, the District of Columbia, the Panama Canal Zone, Puerto Rico, and the Virgin Islands. However Louisiana, Mississippi and South Carolina have not adopted the UCEA.
It consists of a group of statutes which when read together – lays out the general rules about how Colorado is required to handle extradition requests.
Extradition Laws And Procedures In Colorado – The Confusion – “Fighting Extradition”
The question I receive most in this area – that is – when someone is arrested in another state and Colorado is deciding whether to extradite – is the belief that the individual can “fight” extradition. Here’s the thing – the extradition process does NOT examine the guilt or innocence of an individual – for the most part – the only issues in an extradition proceeding – are procedural – and here they are:
The four issues that a state court must analyze when determining whether or not to extradite someone wanted in Colorado are:
1.whether the extradition request documents are in order;
2.whether the person has been charged with a crime in the requesting state;
3.whether the person named in the extradition request is the person charged with the crime; and
4.whether the petitioner is, in fact, a fugitive from the requesting state.
The state holding the prisoner is not allowed to decide the guilt or innocence of the person arrested on another state’s arrest warrant. There is – however – one process – (below) called habeas corpus – which provides a very limited investigation into the case – however it is rarely used and rarely successful when it is used.
Upon arrest by another state – the Judge advises the individual arrested on an out of state warrant of:
(1) the extradition request,
(2) the underlying criminal charge,
(3) the individual’s right to seek legal counsel and the right to a habeas corpus hearing
What Follows Are Some Of the Terms Used In Colorado Extradition Cases:
The Agent’s Commission
– The formal papers, prepared by the Governor of the demanding state, designating named individuals to travel to the asylum state and return with the fugitive.
The Asylum State
– Where the fugitive or defendant has taken refuge or is found.
The Demanding State
– The state which seeks to extradite the fugitive.
– A request by a criminal justice agency to an institution holding a prisoner that the agency be notified when the prisoner’s release is imminent.
The Executive Authority
– Includes the Governor and any person assisting in the functions of the executive branch in a state or territory other than this State.
– The surrender by one state or nation to another of an individual accused or convicted of an offense outside the territory of the asylum state, and within the territorial jurisdiction of the demanding state, which, being competent to try and punish him, demands the surrender.
A Fugitive, or A Fugitive from Justice
– Fugitive. includes all those who are subject to extradition. Fugitive from Justice is a person who, while bodily present in the demanding state, commits a crime therein, and thereafter flees from the justice of that state. For the purposes of extradition it does NOT matter whether the person knew – when he or she left – there was a warrant issued for their arrest.
A Fugitive Warrant
– The authority for detaining the fugitive in the asylum state pending the issuance of the Governor’s Warrant.
The Governor’s Warrant
– The warrant issued by the Governor of the asylum state directing that the fugitive be arrested and detained pending the arrival of the agent of the demanding state.
– The return of such individual to the demanding state or nation.
– the formal request made by the Governor of the demanding state upon the Governor of the asylum state for the return of the fugitive.
The Judicial Hearing
– After the fugitive warrant is issued and the accused is apprehended, he must be brought before the court relative to the fugitive charge against him. If it appears to the court that the accused is the person charged and that he has fled from justice or is otherwise properly sought under the law, there are two alternatives for disposition
The Most Critical Issue Is Whether You Are Held With – Or Without – Bail
If you are brought before a judge on a Colorado arrest warrant – the judge has the authority – even if the demanding state has placed a recommended “no bond hold” on the warrant the state has issued – to set bond on the extradition proceeding.
The judge can do one of two things at your first advisement on the extradition case.
The Judge can commit you to jail on the fugitive warrant for a period of 30 days to await a the demanding state’s decision on whether to issue the order to bring you back – called “the Governor’s Warrant” Which order can be extended for an additional 60 days with evidence that the demanding state intends to extradite;
The Judge can release you on bail.
If You Are Released On BAIL
The Judge will set two conditions:
(1) You must appear at the next hearing for the review of the extradition proceeding… unless you have voluntarily returned to the demanding state and the Court has been provided proof of that fact.
(2) You waive your rights and “surrender for arrest” and wait for the Governor’s Warrant of Rendition.
Here is Colorado’s version of this law:
§ 16-19-117. Bail pending extradition
(1) 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 or territory or country in which it is alleged to have been committed, or having been convicted of a crime in the demanding state, the fugitive is alleged to have escaped from custody or confinement in the demanding state or to have violated the terms of his or her bail, probation, parole, or sentence, or the fugitive has executed a written waiver of extradition pursuant to section 16-19-126, the judge of any district court within the state of Colorado may admit any person arrested, held, or detained for extradition or interstate rendition to another state or territory of the United States or to any foreign country, to bail by bond or undertaking, with such sufficient sureties and in such sum as such judge deems proper, conditioned upon the appearance of such person before the court at a time specified in the bond or undertaking and for such person’s surrender upon the warrant of the governor of this state for such person’s extradition or interstate rendition to another state or territory of the United States or to any foreign country. When any such person has been served with a governor’s warrant, such person shall no longer be eligible to be admitted to bail.
(2) Before granting the bond provided for in subsection (1) of this section, the judge of the district court within the state of Colorado to whom such application for bail is made shall cause reasonable notice to be served upon the district attorney of the judicial district within which an application is made and also upon the person or authority holding or detaining the person.
Extradition Laws And Procedures In Colorado – The “Waiver of Extradition”
At the first advisement hearing you will be asked if you want to “waive extradition.” I advise my clients NOT to waive extradition but to seek to have a reasonable bond set and to then voluntsrily return to Colorado. If you decide to waive extradition it means you will beheld in custody without bond until you are picked up by the state of Colorado.
It you do waive extradition – it must be in writing and be executed before a judge of a court of record and it must contain your – (the fugitive’s) consent to return to the demanding state.
Before a judge can accept a waiver, he must inform you of all of our rights in the extradition process.
If You Bond Out And Don’t Waive Extradition
Your next court date – if you “make bond” is usually 30 days – but some judge’s check on your extradition in a shorter time frame than that. If the demanding state is still workingon the paperwork – the time frame can extended for an additional 60 days.
Most of the time – the extradition process is completed before the expiration of the total 90-day period.
BUT if the 90 days expires without a Governor’s Warrant of Rendition being issued, YOU MUST BE RELEASED unless you agree to extend “the 90-day rule.” The warrant however REMAINS ACTIVE. The fugitive warrant does not disappear because Colorado did not act quickly enough – this means that until you address the warrant – you are again and again subject to arrest and extradition.
If The Governor’s Warrant Arrives
The judge makes sure the documents are in order and you are then held for pick up by agents of the state of Colorado.
A Habeas Corpus Petition
If you decide to file a Petition for a Writ of Habeas Corpus, the judge will set a reasonable time within which the petition must be filed. Again – the issues that can be raised to challenge the extradition are very limited.
The state of Colorado is represented by the local State’s Attorney’s Office.
You have a right to an appointed lawyer and may or may not be allowed bail subject to the discretion of the judge. If the Governor’s warrant has already arrived – most likely you will be held without bail .. thus delaying your return to Colorado and INCREASING your time in custody.. You must think carefully before you seek to file a petition for habeas corpus.
Habeas Corpus Proceedings – A Long Shot At Best
In a habeas corpus proceeding the state starts out with certain advantages in the evidence .. The judge must presume the following to be true if the Governor’s Warrant has arrived:
a. The Governor in issuing the warrant acted on a proper, legal, and sufficient requisition by the executive authority of a demanding state;
b. The accused is the person named in the requisition;
c. The accused is charged with an extraditable offense under the laws of the demanding state;
d. The accused was in the demanding state at the time of the commission of the offense;
e. The accused is a fugitive from justice;
f. The accused is legally held in custody for extradition to the demanding state.
g. The burden then shifts to the accused who must then prove beyond a reasonable doubt the existence of facts that would negate the facts necessary for the issuance of a valid Governor’s Warrant.
In effect – you almost always lose:
If you contest the validity of the Governor’s Warrant, the four basic issues are:
a. Are the extradition papers legally sufficient?
b. Is the accused substantially charged with a crime under the laws of the demanding state?
c. Is the person in custody the person charged?
d. Is the person a fugitive from justice (or is he otherwise properly sought under the extradition law)?
If You Decide To “Waive Extradition”
Under Colorado law – Colorado has 30 days from the time the Governor’s Warrant is served to appear and to take custody of the fugitive; otherwise, you may seek immediate release.
Colorado’s version of this law is as follows:
§ 16-19-119.5. Custody pending arrival of agent of the demanding state
Upon ordering the delivery of a fugitive forthwith to the agent of a demanding state, a judge shall allow the agent of the demanding state a period of not less than fifteen days and not more than thirty days from the date of the order within which to complete transportation arrangements, travel to this state, and appear to take custody of the fugitive. During this period, pending the arrival of the agent of the demanding state, the fugitive shall remain in custody in this state without bail and shall not be discharged
Extradition Laws And Procedures In Colorado – Are There Any Legal Defenses To An Extradition?
The only defenses – as discussed above – are highly technical challenges to he paperwork of the demanding state. These are:
1. Are there any “fatal flaws” in the extradition paperwork that make the extradition invalid,
2. Are you are the victim of mistaken identity…meaning – do they have the wrong person that is named in the warrant from the demanding state.
Unless you have made bail – it makes no sense to raise these issues as you are held longer while the process determines – usually through fingerprint evidence – that they have the wrong person. As for the paperwork – flaws are exceedingly rare.
The Best Strategy – Try To Obtain A Reasonable Bail
If you can persuade the judge to set a reasonable bail or even a personal (signature only) bond – and then obtain permission to voluntarily return to Colorado – that may be he best strategy.
However you at be able to resolve the case with the assistance of a good Colorado criminal defense lawyer from Colorado (if you are being extradited TO Colorado or FROM Colorado) Such lawyer must act very quickly to attempt to negotiate some kind of “deal” to stop the extradition. Usually this only applies to probation violations LINK such as complaints to revoke for non-payment of court fees or restitution.
What If I have Local Colorado Charges Pending When Another State Wants Me?
The UCEA provides that a Governor has discretion to withhold a ” Warrant of Rendition “until the local charges are disposed of, or the Governor may honor the demand when made.
Here is Colorado’s version of this law:
§ 16-19-120. Persons under prosecution when demanded
If a criminal prosecution has been instituted against a person under the laws of this state and is still pending, the governor, in his discretion, subject to such criminal prosecution, either may surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state
Many Judges – As A Condition Of Bond In Colorado Criminal Cases – Require A “Prior Written Waiver Of Extradition
A quick note – often – in Colorado – as a condition of bond – or as a condition of obtaining a Court’s permission to leave the state…
§ 16-19-126.5. Prior waiver of extradition
(1) Notwithstanding any other provision of law, a law enforcement agency in the state of Colorado holding a person who is alleged to have broken the terms of such person’s probation, parole, bail, or any other conditional release in the demanding state shall immediately deliver the person to the duly authorized agent of the demanding state without the requirement of a demand by the executive authority of the demanding state, and without the requirement of a governor’s warrant issued by the governor of the state of Colorado, if such person has signed a prior waiver of extradition as a condition of such person’s current probation, parole, bail, or other conditional release in the demanding state.
(2) The law enforcement agency shall immediately deliver any person pursuant to subsection (1) of this section upon the receipt of the following documents, which shall be accepted as conclusive proof of the contents of such documents and of the validity of the waiver set forth therein:
(a) A certified copy of the prior waiver of extradition signed by the person being held by the law enforcement agency, or an electronically or electromagnetically transmitted facsimile thereof;
(b) A certified copy of an order or warrant from the demanding state directing the return of the person for violating the conditions of such person’s probation, parole, bail, or other conditional release, or an electronically or electromagnetically transmitted facsimile thereof; and
(c) A photograph, fingerprints, or other evidence which identifies the person held by the law enforcement agency as the person who signed the waiver of extradition and who is named in the order or warrant, or an electronically or electromagnetically transmitted facsimile thereof.
(3) Nothing in this section shall be deemed to limit the right, power, or privilege of the state of Colorado to hold, try, and punish any person demanded by another state for any crime committed in the state of Colorado before delivering such person to the demanding state.
Extradition Laws And Procedures In Colorado – Denver Colorado Criminal Defense Lawyer
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