Request By:
Hon. J. Stewart Schneider
Assistant Commonwealth Attorney
32nd Judicial District
P.O. Box 491
Catlettsburg, Kentucky 40129
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
You have asked this Office for an opinion of the Attorney General regarding an interpretation of KRS 440.270, more commonly known as the fugitive warrant statute of the Kentucky Uniform Criminal Extradition Act. Specifically, you are concerned with the application of the statute to the extradition of federal prisoners from the federal corrections institute to other states where the prisoner has an unserved sentence based on a conviction. You explain that your past procedure has been to issue a fugitive warrant under KRS 440.270 pending completion of the extradition documents and receipt of the Kentucky Governor's Warrant. During this time, the prisoner is held at your local jail.
This request examines the wording of KRS 440.270. We direct your attention to the entire section:
(1) Whenever any person within this state shall be charged on the oath of any credible person before any judge of this state with the commission of any crime in any other state and, except in cases arising under KRS 440.210, with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole, or whenever complaint shall have been made before any judge in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under KRS 440.210, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole and is believed to be in this state, the judge shall issue a warrant directed to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this state, and to bring him before the circuit or district judge of the county in which he was arrested who may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
(2) No bail bondsman or his agent shall arrest, detain, imprison, or remove from the state any person for having broken the terms of his bail unless a warrant for that person's arrest has been issued as provided for in subsection (1) of this section.
(3) Any violation of subsection (2) of this section shall be deemed as a Class D felony and punishable thereas.
KRS 440.270.
The fugitive warrant statute provides that a Kentucky judge shall issue a warrant either upon the oath of any credible person before the court or on the affidavit of a credible person from another state. In either instance, the individual must swear that the fugitive is charged with the commission of a crime in the other state and (1) has fled from justice, or (2) has been convicted of a crime in that state and has escaped from confinement, or (3) has broken the terms of bail, probation or parole. KRS 440.270(1).
In the scenario you have offered, the fugitive is wanted in the demanding state to complete an unserved sentence. Therefore, your facts would come under the first category since the fugitive committed a crime in the demanding state and "fled from justice."
The interpretation you've requested concerning KRS 440.270 essentially involves an analysis of the terms "fled from justice." It is the opinion of the Attorney General that the phrase "fled from justice" is a term of art used throughout the laws on extradition and refers to an individual charged or convicted with a crime in one state and for whatever reason, voluntary or involuntary, is found in another state.
However, the term "fled" has been used as a term of art in describing fugitives from justice beginning with the United States Constitution Article IV § 2(2):
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled , be delivered up, to be removed to the State having Jurisdiction of the Crime. (Emphasis added.)
Additionally, the term "fled" is used in the same manner in the United States Extradition Act, 18 U.S.C. § 3182, which is the main federal statute interpreting the constitutional extradition requirement.
Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled , and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled , the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged. (Emphasis added.)
18 U.S.C. § 3182.
Lastly, authority to obtain a governor's warrant contained in KRS 440.180, Uniform Criminal Extradition Act utilizes the term "fled" to describe the fugitive status:
No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under KRS 440.210, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand. (Emphasis added.)
KRS 440.180.
The Kentucky court in Wilkins v. Bax, Ky., 262 S.W.2d 663, 664 (1953) defined a fugitive warrant as:
However, upon consideration of the entire statute, we have no difficulty in concluding that it was intended to and does provide for the preliminary arrest and detention of any person who is charged by warrant or indictment with the commission of a felony in another state.
Wilkins v. Bax interprets the old fugitive warrant statute before it was amended in 1960 as part of the Uniform Criminal Extradition Act. However, the concepts regarding fugitives are the same. Kentucky may arrest and hold a fugitive on a fugitive's warrant pending receipt of the Kentucky Governor's Warrant. Neither case law nor statutes discuss the motives as to why the fugitive came to Kentucky. Rather, the focus is on whether the fugitive is wanted by the demanding state on an outstanding charge or to complete his sentence on an underlying conviction.
The United States Supreme Court has addressed the issue of who is a fugitive from justice for extradition purposes. A fugitive from justice is a person who is suspected of or convicted of committing a crime, has left the demanding state and is found within the boundaries of another state. Roberts v. Reilly, 116 U.S. 80, 6 S. Ct. 291, 29 L. Ed. 544 (1885). Therefore, "all that is necessary to convert a criminal under the laws of a State into a fugitive from justice is that he should have left the State after having incurred guilt there." Strassheim v. Daily, 221 U.S. 280, 285, 31 S. Ct. 558, 560, 55 L. Ed. 735 (1911) (citing Roberts, 116 U.S. at 97, 6 S. Ct. at 300). The Supreme Court has held that the fugitive status is not affected by the fugitive leaving the demanding state with the knowledge of or without the objection of the demanding authorities. Bassing v. Cady, 208 U.S. 386, 392-93, 28 S. Ct. 392, 393-94, 52 L. Ed. 540 (1908).
The Sixth Circuit has addressed the issue of whether a fugitive voluntarily or involuntarily left the demanding state. In Chamberlain v. Celeste, 729 F.2d 1071, 1077 (6th Cir. 1984) the court concluded that even though an accused or convicted defendant may leave the demanding state with the consent of state officials, his fugitive status is not affected and he is not precluded from being subjected to extradition. Additionally, if a person is convicted of a felony in the demanding state and is later arrested outside the state, the asylum state may detain the person for a reasonable time necessary to initiate extradition proceedings. Stallings v. Splain, 253 U.S. 339, 341, 40 S. Ct. 537, 538, 64 L. Ed. 2d 940 (1920).
Obviously, Kentucky courts have an interest in holding convicted felons in custody pending their extradition to the demanding state. It does not matter whether the fugitive came to Kentucky against his will or on his own violition. He is a fugitive if he is no longer located in the state of his conviction for service of the remainder of his sentence.
Therefore, you are correct in your procedure to issue a fugitive warrant pursuant to KRS 440.270 pending completion of the extradition documents, during which time the prisoner is held in your local jail. However, the best procedure is to have the demanding state submit its extradition documents to Kentucky before the release date and serve the Kentucky Governor's Warrant on the fugitive at the time he is released from federal prison. Utilizing this method you avoid the necessity of a judicial fugitive warrant and the fugitive is held in the local jail on an executive warrant.