Chapter 4.1 Extradition


One of the principal purposes for the Revised ICJ is to provide for the effective transfer of delinquent juveniles on probation or parole to other states where they may be cooperatively supervised, and to affect the return of delinquent juveniles who have escaped or absconded, or juveniles who have run away from home, through means other than formal extradition.  To this end, the status of juvenile offenders as absconders, escapees or delinquents substantially affects the process to which they are entitled under the Revised ICJ and constitutional principles of due process.  Although the Revised ICJ and its administrative rules are relatively new and, therefore, not the subject of robust judicial construction, general principles governing the status of probationers and parolees under the federal Constitution, prior compacts, court decisions and state law are instructive and appear to be controlling on juvenile offenders subject to the Revised ICJ.

Although a juvenile is not entitled to all the due process procedures provided in an ordinary criminal trial, the youth is entitled to receive sufficient due process to assure fair treatment. In the context of juvenile proceedings by which jurisdiction over a juvenile who has committed a serious offense is ‘waived’ to adult court, the U.S. Supreme Court, referring to its decision in Kent v. United States, 383 U.S. 541 (1966), reiterated in In re Gault, “[W]e stated that ‘the Juvenile Court Judge's exercise of the power of the state as parens patriae was not unlimited.’ We said that ‘the admonition to function in a ‘parental’ relationship is not an invitation to procedural arbitrariness.’ With respect to the waiver by the Juvenile Court to the adult court of jurisdiction over an offense committed by a youth, we said that ‘there  is no place in our system of law for reaching a result of such tremendous consequences without ceremony, without hearing, without effective assistance of counsel, without a statement of reasons.’ We announced with respect to such waiver proceedings that while ‘We do not mean . . . to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” 387 U.S. 1, 30 (1967); Kent 383 U.S. at 562; see also, McKeiver v. Pennsylvania, 403 U.S. 528 (1971), In re Anthony, 763 A.2d 136 (Md. 2000) (Juvenile causes are civil, not criminal proceedings. 

Nonetheless, many of the constitutional safeguards afforded criminal afforded criminal defendants are applicable to juveniles.”); accord In Re Roneikas, 920 A.2d 49 (Md. Ct. App. 2007); cf. People v. Anderson, 825 N.W.2d 678 (2012) (“. . . juvenile proceedings are closely analogous to the adversary criminal process.
Since the foregoing analysis was applied in the context of a juvenile delinquency proceeding, which is analogous to a criminal trial, it is reasonable to infer that like their adult counterparts, juvenile offenders subject to probation or parole have some liberty interests, but that they need not be accorded the “full panoply of rights” enjoyed by defendants in a pretrial status because the presumption of innocence no longer exists. See also, Breed v. Jones, 421 U.S. 519 (1975).          

Consistent with this view, consider In Interest of Davis, 546 A.2d 1149, 1153 (Pa. Super. Ct. 1988) (“In view of substantial liberty interest which exists in not having probation revoked on the basis of unverified facts or erroneous information, due process considerations entailing right to confront and cross-examine an accuser must extend to probation revocation proceedings for a juvenile. 42 Pa. C.S.A. §§ 6301 et seq., 6324(5), 6338(b), 6341(d); Const. Art. 1§ 9; U.S.C.A. Const. Amends. 6, 14”); See also In Interest of W., 377 So. 2d 2 (Fla. 1979); State v. Angel C.,715 A.2d 652, 667 (Conn. 1998) (“For defendants to succeed in their contention that state law created a due process liberty interest in their status as juveniles, they were required to show that the Juvenile Justice Act created a right to treatment as a juvenile or created a justifiable expectation that such treatment would be afforded to them.”)

The U.S. Supreme Court has held that the granting of probation or parole is a privilege, not a right guaranteed by the Constitution.  It comes as an “act of grace” to one convicted of a crime and may be coupled with conditions that a state deems appropriate under the circumstances of a given case. See Escoe v. Zerbst, 295 U.S. 490, 492-93 (1935); Burns v. United States, 287 U.S. 216, 220 (1932); see also, United States ex rel. Harris v. Ragen, 177 F.2d 303, 304 (7th Cir. 1949).  Many state courts have similarly found that probation or parole is a “revocable privilege,” an act of discretion. Wray v. State, 472 So. 2d 1119, 1121 (Ala. 1985); People v. Reyes, 968 P.2d 445, 449-50 (Cal. 1998); People v. Ickler, 877 P.2d 863, 866 (Colo. 1994); Carradine v. United States, 420 A.2d 1385, 1391 (D.C. 1980); Haiflich v. State, 285 So.2d 57, 58 (Fla. Dist. Ct. App. 1973); State v. Edelblute, 424 P.2d 739, 745 (Idaho 1967); People v. Johns, 795 N.E.2d 433, 437 (Ill. App. Ct. 2003); Johnson v. State, 659 N.E.2d 194, 198-99 (Ind. Ct. App. 1995); State v. Billings, 39 P.3d 682, 685 (Kan. Ct. App. 2002); State v. Malone, 403 So. 2d 1234, 1238 (La. 1981); Wink v. State, 563 A.2d 414, 417 (Md. 1989); People v. Moon, 337 N.W.2d 293, 296 n.6 (Mich. Ct. App. 1983); Smith v. State, 580 So. 2d 1221, 1225 (Miss. 1991); State v. Brantley, 353 S.W.2d 793, 796 (Mo. 1962); State v. Mendoza, 579 P.2d 1255, 1257 (N.M. 1978).   The statutory privilege of probation or parole is controlled by the legislature and rests within the sound discretion of a sentencing court or paroling authority. E.g., People v. Main, 199 Cal. Rptr. 683, 686 (Cal. Ct. App. 1984).  An offender has no constitutional right to conditional release or early release.  Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979).  Because there is no constitutional right, federal courts “recognize due process rights in an inmate only where the state has created a ‘legitimate claim of entitlement’ to some aspect of parole.”  Vann v. Angelone, 73 F.3d 519, 522 (4th Cir. 1996); see also, Furtick v. S.C. Dept. of Prob., Parole & Pardon Servs., 576 S.E.2d 146, 149 (2002); In re S.H., No. A128298, 2011 WL 2152062, at *5 (Cal. Ct. App. June 1, 2011).  A state will only be held to “create” a constitutional liberty interest, if its laws affirmatively create an interest that, if taken, would impose “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”  Sandin v. Conner, 515 U.S. 472, 484 (1995).  

Courts have held that probation, parole or conditional pardon is not something an offender can demand but rather it extends no further than the conditions imposed. Revocation of the privilege generally does not deprive an offender of any legal right.  Rather, revocation merely returns the offender to the same status enjoyed before probation, parole or conditional pardon was granted.  E.g., Woodward v. Murdock, 24 N.E. 1047, 1048 (Ind. 1890); Commonwealth ex rel. Meredith v. Hall, 126 S.W.2d 1056, 1057 (Ky. 1939); Guy v. Utecht, 12 N.W.2d 753, 759 (Minn. 1943).  Other courts have held that probation, parole or conditional pardon is by nature a contract between the offender and the state by which the offender is free to accept with conditions or to reject and serve the sentence.  Having elected to accept probation, parole or conditional pardon, the offender is then bound by its terms.  E.g., Gulley v. Apple, 210 S.W.2d 514, 518-19 (Ark. 1948); Ex parte Tenner, 128 P.2d 338, 341 (Cal. 1942); State ex rel. Rowe v. Connors, 61 S.W.2d 471, 473 (Tenn. 1933); Ex parte Calloway, 238 S.W.2d 765, 766 (Tex. Crim. App. 1951); Ex parte Paquette, 27 A.2d 129, 132 (Vt. 1942); Pierce v. Smith, 195 P.2d 112, 116 (Wash. 1948), cert. denied, 335 U.S. 834 (1948). Still other courts have held that probation, parole or conditional pardon is an act of grace controlled by the terms and conditions placed on an offender as if under contract. E.g., State ex rel. Bush v. Whittier, 32 N.W.2d 856, 859 (Minn. 1948).  Regardless of the underlying theory (grace, contract, or both) the general proposition is that probation is a privilege such that if a delinquent juvenile (like his counterpart in the adult offender system) refuses to abide by the conditions, a state can deny or revoke it.  People v. Eiland, 576 N.E.2d 1185, 1191 (Ill. App. Ct. 1991).  The rights of a person who is actually or constructively in the custody of state corrections officials due to the conviction of a criminal offense differs markedly from citizens in general, or for that matter citizens under suspicion of criminal conduct.  People v. Gordon, 672 N.Y.S.2d 631, 636 (N.Y. Sup. Ct. 1998).  It should be noted, that although a juvenile does not have a right to supervised release, once granted certain liberty interests, they are entitled to some minimum due process prior to revocation.  See, Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 782-83 (1973); see also People ex rel. Silbert v. Cohen, 271 N.E.2d 908, 909-10 (N.Y. 1971).  

It is not a violation of the Fourteenth Amendment equal protection when the procedures prescribed under a uniform interstate compact are applied.  See, e.g., People ex rel. Rankin v. Ruthazer, 107 N.E.2d 458, 460 (N.Y. 1952).  Similarly, in Ex parte Tenner, the court upheld the validity of a uniform statute for out-of-state parolee supervision (Interstate Compact on Probation and Parole “ICPP”) finding that since the statute applied uniformly to all parolees from states that were members of the Compact, the statute did deprive parolees of the equal protection of the laws. 128 P.2d 338, 343 (Cal. 1942).  In People v. Mikula, the court held that no violation of the constitution occurred where an out-of-state offender might be eligible for transfer of parole to another state while an in-state offender was not able to obtain such a parole. 192 N.E. 546, 548 (Ill. 1934). The court found that it was within the authority of the legislature to make reasonable classification of prisoners in order to effectuate the purposes of the statute.  Pointing out that if the convict was a nonresident, and the law would not permit him to be paroled outside of the state, those reasons would become impotent as to him. Id. The court concluded that there was no deprivation of advantage to anyone because of the statutory distinction between resident and nonresident convicts. Id.; cf., Williams v. Wisconsin, 336 F.3d 576, 582 (7th Cir. 2003) (holding that while offenders have a right to marry, state can impose reasonable travel restrictions which have the effect of incidental interference with the right to marry; such restrictions do not give rise to a constitutional claim if there is justification for the interference).  

Similarly, even warrantless searches of parolees have been held to be permissible, particularly where such searches have been agreed to as a condition of parole.  See, Sampson v. California, 547 U.S. 843, 848 (2006) (“Under our general Fourth Amendment approach we examine the totality of the circumstances to determine whether a search is reasonable within the meaning of the Fourth Amendment . . . .”) In Sampson, the Court found that, on the continuum of state-imposed punishments, “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Id. at 850; see also United States v. Stewart, 213 Fed. Appx. 898, 899 (11th Cir. 2007).

A person’s status as an out-of-state offender does not mean that such person possesses no constitutional rights.  Offenders may have some minimum rights of due process in limited circumstances.  For example, in Browning v Mich. Dept. of Corr., the court held that equal protection rights would be violated if a “dead time” statute were construed so that a person paroled out-of-state was not given credit on his original sentence for time served after his parole and while in prison in other states based on subsequent convictions in those other states. 188 N.W.2d 552, 556 (Mich. 1971) In that case, a parolee, as a result of the imprisonment in Georgia and in Illinois, had accumulated “dead time” totaling nearly 8 years, which was not credited to his Michigan sentence. Id. at 553. Noting that the legislature intended for a parole violator to serve sentences concurrently, the court held that in the event of a parole violation, the time from the date of the parolee's delinquency to the date of his arrest should not be counted as any part of the time to be served. Id. at 555. However, the court also concluded that a prisoner who is paroled out of state and who subsequently violates parole by committing an offense in another state, does not have his dead time end until declared available by the other state for return to Michigan. Id. at 556. The court declared that if construed to operate in this manner, the “dead time” statute not only violated the requirement that consecutive sentences be based upon express statutory provisions, but also invidiously sub-classified an out-of-state parolee solely upon the basis of geography and constituted a violation of equal protection guaranties. Id.

As discussed in section 2.1.3, supra, because no meaningful distinction between juveniles and adults existed at the time of the drafting of the Constitution, federal criminal law did not formally recognize a special status for juveniles.  This was the case until the Federal Juvenile Delinquency Act of 1938 was adopted. Prior to that time, juvenile criminal offenders were subject to prosecution in the same manner as adults.  As a consequence of this constitutional and legislative history, neither the constitutional provisions nor statutes governing extradition appear to make a special exception for juveniles.

Recent court decisions interpreting the application of extradition to juvenile offenders are in accord. See, e.g., State v. J.M.W., 936 So. 2d 555, 560, 560 n.9 (Ala. Crim. App. 2005) (“J.M.W. also argues that because he is a juvenile the Interstate Compact for Juveniles, codified at § 44-2-1 et seq., Ala. Code 1975, governs his extradition, and not the provisions of the Uniform Criminal Extradition Act (“UCEA”), codified at § 15-9-1 et seq., Ala. Code 1975 . . . . The constitutional provision and the legislation governing extradition make no special provisions for juveniles, and the cases, at least by implication if not expressly, recognize that juveniles may be extradited the same as adults.” Annot., Extradition of Juveniles, 73 A.L.R.3d 700 (1976).”); In re Boynton, 840 N.W.2d 762, 767 (Mich. Ct. App. 2013)(“Although a juvenile petition does not technically charge a crime, the rendition procedures established by the Compact for juveniles charged with delinquency are designed to be essentially the same as those long established for the extradition of adults charged with crimes”); Ex parte Jetter, 495 S.W.2d 925, 925-26 (Tex. Crim. App. 1973) (“Further, we find no limitation in the Uniform Criminal Extradition Act excluding minors from its operation.”); R.L.A.C. v. State, 823 So. 2d 1288, 1290 (Ala. Crim. App. 2001); accord In re O.M., 565 A.2d 573, 583 (D.C. 1989); A Juvenile, 484 N.E.2d 995, 997-98 (Mass. 1985).  It is also important to note that a challenge as to whether extradition was proper under the ICJ or the Uniform Criminal Extradition Act must be raised prior to being delivered into custody of the charging state after which the legality of the extradition is no longer subject to legal attack. E.g., R.L.A.C., 823 So. 2d at 1290.

Article IV, Section 2 of the U.S. Constitution provides the general provisions applicable to the interstate movement of individuals charged with crimes and subjects them to extradition upon demand of the executive authority of the state in which the crime is committed.  While special criminal procedures may be required for juveniles in other contexts, these do not apply to the movement of juveniles from one state to another.  Although some form of extradition proceeding is considered necessary for juvenile criminal fugitives, no formal extradition is necessary to return a minor to a guardian.  The power of the state to try a juvenile is not affected by the manner of his return to a state.  

In addition, Courts considering the question have not been reluctant to recognize that even if extradition does not apply, the Revised ICJ is a useful alternative to permit the lawful transfer of a juvenile across state lines.  See In re Lydell J., 583 N.Y.S.2d 1007, 1010 (N.Y. Fam. Ct. 1992) (“The provisions of the Criminal Procedure Law do not apply to Article 3 proceedings unless the applicability is specifically prescribed. [FCA § 303.1]. Thus, the Uniform Criminal Extradition Act contained in Article 570 of the CPL does not apply to juvenile delinquency proceedings as its applicability has not been specifically prescribed. However, the Interstate Compact for Juveniles contained in the Unconsolidated Laws § 1801 (L.1955, ch. 155, § 1, as amended) is applicable and provides the procedure by which a juvenile confined in another state may be returned to the requesting state.”). In re Teague, 371 S.E.2d 510, 514 (N.C. Ct. App. 1988) (“North Carolina Interstate Compact for Juveniles which applies uniformly and exclusively to juveniles and does not allow court to make best interest determinations for any juveniles, does not violate equal protection, even though it allows no inquiry into juvenile's best interest and does not treat juveniles the same as adults under the Compact. U.S.C.A. Const. Amend. 14; G.S. § 7A-689”); see also Interest of Storm, 223 N.W.2d 170, 173 (Iowa 1974); In re C.P., 533 A.2d 1001, 1003 (Pa. 1987).