Request By:
Sgt. Donald Wolfe
Fugitive Squad
CIS, Louisville Division of Police
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; George Geoghegan III, Assistant Attorney General
This is in response to a letter from you in which you posed the following questions:
1. After the Governor's Warrant has been executed on the prisoner, is he entitled to bond?
2. If the prisoner asks the court for a habeas corpus hearing, is he entitled to bond during the time he is waiting for the hearing?
3. Should the court deny the writ of habeas corpus and the defendant appeal to a higher court, is he entitled to bond?
Extradition is required by Article IV, Section II, Clause 2, of the United States Constitution. Congress has adopted 18 U.S. C. § 3181, et seq. to implement the constitutional provision. Kentucky has adopted the Uniform Criminal Extradition Act, KRS 440.150-440.420 to implement the federal law on extradition.
The federal law on extradition is controlling. The federal law provides for the Governor's Rendition Warrant. The Uniform Criminal Extradition Act likewise provides for the Rendition Warrant but this is of course mere surplusage. In addition the Uniform Criminal Extradition Act provides for the arrest of the fugitive before the Governor issues the Rendition Warrant. This not surplusage because the federal law does not provide for the preliminary arrest of a fugitive. The preliminary arrest warrant is usually referred to as a fugitive warrant and is issued by a local court under KRS 440.270-440.300. KRS 440.300 provides that bail is available on the fugitive warrant.
In
Commonwealth, ex rel Jewell v. Roberts, 212 Ky. 351, 279 S.W. 330 (1926) the Court of Appeals distinguished between the preliminary arrest warrant and the Governor's Rendition Warrant saying:
"It is the well settled rule that, in extradition proceedings pursuant to the act of Congress, the defendant may not be admitted to bail in the state in which he is arrested. But, this rule does not apply to preliminary proceedings instituted under the laws of the state simply for the detention of the fugitive, as under Section 1930. Such proceedings are purely under the state law, and are not affected by the act of Congress. . . ." Page 331.
In Ex parte Grabel, Ky., 248 S.W.2d 343 (1952) the Court commented as follows:
". . . It is said in
Commonwealth ex rel Jewell v. Roberts, 212 Ky. 351, 279 S.W. 330,331 to be the well settled rule that, in extradition proceedings pursuant to the act of Congress, the defendant may not be admitted to bail in the state in which he is arrested. ' There is some authority to the contrary, but the cases seem to have been upon exceptional facts. 22 Am.Jur., Extradition Section 33. As stated in 39 C.J.S., Habeas Corpus, Section 39, page 564, 'In the absence of a prima facie showing that the extradition proceedings are not regular, the court will not admit a prisoner to bail pending determination of habeas corpus proceedings.' The reasons for the denial of bail are thus aptly stated in
Hames v. Sturdivant, 181 Ga. 472, 182 S.E. 601,602. . . ." page 345.
In answer to your first question, this office takes the position that bail is not available on the Governor's Rendition Warrant. In may very well be that bail was set on the fugitive warrant pursuant to KRS 440.300. But once the Governor's Rendition Warrant is executed the fugitive warrant ceases to have any significance. The Rendition Warrant is not a judicial warrant but an executive warrant issued pursuant to Article IV, Section II, Clause 2 of the United States Constitution. There is nothing in the United States Constitution authorizing bail on the Rendition Warrant. Likewise there is no provision in the Uniform Criminal Extradition Act authorizing bail on the Rendition Warrant. Furthermore, even if there were such a provision in the Uniform Act it would have to fall as being in conflict with the United States Constitution. In
Walden v. Mosley, 312 F. Supp. 855 (N.D. Miss. 1970) the Court said:
"Extradition of fugitives between states is essentially a federal question arising under the United States Constitution, Article 4, Section 2, Clause 2. That Clause is not self-executing, but is implemented by 18 U.S.C. Section 3182. State law which conflicts with the overriding federal legislation in the extradition area will be disregarded, but may be used to supplement federal law in cases where the federal law is unclear or silent . . . ." Page 858.
Accord In re Chenowith, 432 P.2d 132 (Okla. 1967); and Ex parte Peairs, 283 S.W.2d 755 (Texas Criminal Appeals, 1955).
In your second question you refer to KRS 440.250. All KRS 440.250 does is require the officer serving the Governor's Rendition Warrant to take the fugitive before the police, county or circuit court to be informed of the demand for his surrender and of the nature of the crime with which he is charged and of his right to demand and procure legal counsel testing the legality of the extradition proceedings. If the fugitive states that he does not desire to challenge the extradition proceedings he can be turned over immediately to the agents of the demanding state. On the other hand, if he desires to challenge the proceedings, the court is authorized to stay the transfer for a reasonable period of time to give the fugitive an opportunity to file a petition for writ of habeas corpus under KRS Chapter 419. KRS 440.250 does nothing more. It does not require a hearing on the petition for writ of habeas corpus. Once the application for habeas corpus is filed it is to be handled as any other habeas corpus proceeding under KRS Chapter 419. This is to say that the Court can summarily dismiss it, issue a show cause order, or issue a writ of habeas corpus ad testificadum.
KRS Chapter 419 deals with issuing a writ of habeas corpus. It should be noted that the writ described in that Chapter is not a writ absolute but a write a writ of habeas corupus ad testificadum. KRS 419.040 does not state that bail is available once the petition for habeas corpus has been filed. It merely provides that the Court may require the petitioner to post bond to assure that he does not escape while being transferred to the courtroom to testify pursuanto to the writ of habeas corpus ad testificadum. Therefore, in answer to your second question this office takes the position that the court is not authorized to set bail on the Governor's Rendition Warrant pending determinzation of a habeas corpus proceeding.
KRS 419.130(1) provides for an appeal and fixes the time periods within which certain acts shall be done. KRS 419.130(2) provides that if the court makes the writ of habeas corpus assolute by ordering the release of the fugitive, any party may have the judgment stayed until the appeal is filed. After the appeal is filed, the Court of Appeals, may continue, modify, or set aside the stay.
There is no provision in KRS Chapter 419 to stay the denial of a writ. If the writ is denied the petitioner must remain in jail. This normally presents no problem but in the extradition area it does because it is possible for the fugitive to be transferred to the demanding jurisdiction before he can have his appeal decided. In
Brewster v. Bradley, 379 S.W.2d 480 (1964), the Court of Appeals stated that in this situation the trial court was justified in staying the execution of the extradition order until determination of the habeas corpus proceedings including any appeal from an order denying habeas corpus. This means that if the trial court denies the writ of habeas corpus and the fugitive desires to appeal, the trial court is authorized to stay the extradition proceedings until the appeal is filed. Once again, after the appeal is filed, the Court of Appeals may continue, modify, or set aside the stay.
In answer to your third question, we opine that if the writ is denied the fugitive is not entitled to bail during the appeal.
In summary, bail is not available on a Governor's Rendition Warrant. Bail is not available during the time petitioner is waiting for a hearing on a petition for writ of habeas corpus. An extradition habeas corpus is no different than any other once the application has been filed. If the writ of habeas corpus is denied bail is not available to the fugitive during the appeal. However, the extradition proceedings may be stayed until the appeal is disposed of.