The Extradition Act, which implements the Extradition Clause of
Article IV, requires an asylum State to give up to a demanding
State a fugitive against whom a properly certified indictment has
been lodged. After a California custody decree was modified to give
Richard Smolin sole custody of his minor children and he secured a
California warrant to obtain custody, he and his father picked up
the children in Louisiana, where they were living with their
mother. The mother then swore out an affidavit charging the Smolins
with kidnaping, on the basis of which an information was filed
charging them with violating a Louisiana statute prohibiting a
parent's intentional taking of his own child from any person to
whom custody has been awarded by any state court of competent
jurisdiction. After the Governor of Louisiana formally notified the
Governor of California of the charges and demanded that the Smolins
be delivered up for trial, the California Superior Court granted
them a writ of habeas corpus to block the extradition warrants
against them. Taking judicial notice of the California custody
orders, the court concluded that the Smolins were not substantially
charged with crime under Louisiana law. Although the California
Court of Appeal then issued a writ of mandate on the ground that
the Superior Court had abused its discretion, the State Supreme
Court reversed, finding that the California custody decrees were
properly considered by the Superior Court, and that, under the full
faith and credit provisions of the federal Parental Kidnaping
Prevention Act of 1980, those decrees conclusively established that
Richard Smolin was the childrens' lawful custodian at the time he
took them. The court ruled that the Smolins had not been
substantially charged with a crime, since, under Louisiana law, the
lawful custodian of children cannot be guilty of kidnaping
them.
Held: The Extradition Act prohibits the California
Supreme Court from refusing to permit extradition. The language,
history, and subsequent construction of the Act establish that
extradition is meant to be a summary procedure, and that the asylum
State's courts may do no more than ascertain whether (a) the
extradition documents on their face are in order; (b) the
petitioner has been charged with a crime in the demanding
Page 482 U. S. 401
State; (c) the petitioner is the person named in the request for
extradition; and (d) the petitioner is a fugitive. Here, the only
such inquiry in doubt is whether the Smolins have been charged with
a crime in Louisiana, which question must be answered in the
affirmative, since the information charging them is in proper form,
and they do not dispute that the wife's affidavit, and documents
incorporated by reference therein, set forth facts that clearly
satisfy each element of the crime defined in the state parental
kidnaping statute. Their contention that the requirement of
Roberts v. Reilly, 116 U. S. 80,
116 U. S. 95,
that the person demanded be "substantially charged" permits an
inquiry by the asylum State into whether the charging instrument is
sufficient to withstand a generalized motion to dismiss or common
law demurrer is without merit. To the contrary, the asylum State
may do no more than ascertain whether the requisites of the
Extradition Act have been met, and may not entertain defenses or
determine the guilt or innocence of the charged party. Thus, it is
for the Louisiana courts to determine whether the wife's affidavit
is fraudulent, whether the California custody decrees establish
Richard Smolin as the children's lawful custodian under the full
faith and credit provision of the federal Parental Kidnaping
Prevention Act, and whether the Smolins were, accordingly, not
guilty of violating the Louisiana statute. Pp.
482 U. S.
405-412.
41 Cal. 3d
758,
716 P.2d 991,
reversed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, MARSHALL, BLACKMUN, POWELL, and SCALIA,
JJ., joined. STEVENS, J., filed a dissenting opinion, in which
BRENNAN J., joined,
post, p.
482 U. S.
412.
Page 482 U. S. 402
JUSTICE O'CONNOR delivered the opinion of the Court.
At issue in this case are the limits imposed by federal law upon
state court habeas corpus proceedings challenging an extradition
warrant.
I
Richard and Judith Smolin were divorced in California in 1978.
Sole custody of their two children, Jennifer and Jamie, was awarded
to Judith Smolin, subject to reasonable visitation rights for
Richard. Until November, 1979, all the parties remained in San
Bernardino County, California, and Richard apparently paid his
child support and exercised his visitation rights without serious
incident. In August, 1979, however, Judith married James Pope, and
in November, Mr. Pope's work required that the family relocate to
Oregon. When the Popes moved without informing Richard, the battle
over the custody of the minor children began in earnest.
It is unnecessary to recite in detail all that ensued. Richard
alleged, and the California courts later found, that the Popes
deliberately attempted to defeat Richard's visitation rights and to
preclude him from forming a meaningful relationship with his
children in the course of their succeeding relocations from Oregon
to Texas to Louisiana. On February 13, 1981, the Popes obtained a
decree from a Texas court granting full faith and credit to the
original California order awarding sole custody to Judith. Richard
was served, but did not appear in the Texas proceeding. Before the
Texas decree was issued, however, Richard sought and obtained in
California Superior Court modification of the underlying California
decree, awarding joint custody to Richard and Judith. Though
properly served, the Popes did not appear in these
Page 482 U. S. 403
California proceedings; and, though served with the modification
order, the Popes neither complied with its terms nor notified the
Texas court of its existence. On January 9, 1981, Richard
instituted an action in California Superior Court to find Judith in
contempt and to again modify the custody decree to give him sole
custody. In February, 1981, sole custody was granted to Richard by
the California court, subject to reasonable visitation rights for
Judith.
This order also was ignored by the Popes, apparently acting on
the advice of counsel that the California courts no longer had
jurisdiction over the matter. Richard did not in fact obtain
physical custody for over two years. When he finally located the
Popes in Louisiana, they began an adoption proceeding, later
described by the California courts as "verging on the fraudulent,"
to sever Richard's legal tie to Jennifer and Jamie. App. 51. After
securing a California warrant to obtain custody of the children on
February 27, 1984, Richard and his father, Gerard Smolin, resorted
to self-help. On March 9, 1984, they picked up Jennifer and Jamie
as they were waiting for their school bus in Slidell, Louisiana,
and brought them back to California. On April 11, 1984, the Popes
submitted to the jurisdiction of the California Superior Court and
instituted an action to modify the 1981 order granting Richard sole
custody.
41 Cal. 3d
758, 764, n. 4,
716 P.2d 991,
994, n. 4 (1986). Those proceedings are apparently still pending
before the California courts.
Meanwhile, the Popes raised the stakes by instituting a criminal
action against Richard and Gerard Smolin in Louisiana. On April 30,
1984,
after the Popes instituted modification proceedings
in California, Judith Pope swore out an affidavit charging Richard
and Gerard Smolin with kidnaping Jennifer and Jamie from her
custody and asserting that they had acted "without authority to
remove children from [her] custody." App. B to Pet. for Cert. 6. On
the basis of this affidavit, the Assistant District Attorney for
the 22d Judicial District of Louisiana, William Alford, Jr., filed
an information
Page 482 U. S. 404
charging Richard and Gerard Smolin each with two counts of
violating La.Rev.Stat.Ann. § 14:45 (West 1986), the Louisiana
kidnaping statute. On June 14, 1984, the Governor of Louisiana
formally notified the Governor of California that Richard and
Gerard Smolin were charged with "simple kidnaping" in Louisiana,
and demanded that they be delivered up for trial. 41 Cal. 3d at
763, 716 P.2d at 993-994.
In early August, 1984, the Smolins petitioned in the California
Superior Court for a writ of habeas corpus to block the anticipated
extradition warrants. On August 17, 1984, the anticipated warrants
issued, and on August 24, 1984, the Superior Court orally granted a
writ of habeas corpus after taking judicial notice of the various
custody orders that had been issued. The court concluded
"that the findings in the family law case adequately demonstrate
that, in fact, the process initiated by Mrs. Pope in Louisiana and
her declarations and affidavits were totally insufficient to
establish any basis for rights of either herself personally or for
the State . . . of Louisiana."
App. C to Pet. for Cert. 5. California then sought a writ of
mandate in the California Court of Appeal on the ground that the
Superior Court had abused its discretion in blocking extradition.
The Court of Appeal reluctantly issued the writ:
"Although we abhor Judy's apparent willingness to take advantage
of our federal system to further this custody battle, and are
sympathetic to [the Smolins'] position, we must conclude that their
arguments are irrelevant to the only issue a court in the asylum
state may properly address: are the documents, on their face, in
order."
App. B to Pet. for Cert. 16.
A divided California Supreme Court reversed. The majority
interpreted the Superior Court's finding to be that the Smolins
were not substantially charged with a crime. It found that the
California custody decrees were properly considered
Page 482 U. S. 405
by the Superior Court, and that its conclusion that the Smolins
were not substantially charged was correct. Under the full faith
and credit provisions of the federal Parental Kidnaping Prevention
Act of 1980, 28 U.S.C. § 1738A, the majority determined that those
decrees conclusively established that Richard Smolin was the lawful
custodian of the children at the time that they were taken from
Louisiana to California.
* Finally, the
court found that, under Louisiana law, the lawful custodian cannot
be guilty of kidnaping children in his custody.
State v.
Elliott, 171 La. 306, 311, 131 So. 28, 30 (1930). We granted
certiorari, 479 U.S. 982 (1986), to consider whether the
Extradition Clause, Art. IV, § 2, cl. 2, and the Extradition Act,
18 U.S.C. § 3182, prevent the California Supreme Court from
refusing to permit extradition on these grounds.
II
The Federal Constitution places certain limits on the sovereign
powers of the States, limits that are an essential part of the
Framers' conception of national identity and Union. One such limit
is found in Art. IV, § 2, cl. 2, the Extradition Clause:
"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
Page 482 U. S. 406
of the State from which he fled, be delivered up, to be removed
to the State having Jurisdiction of the Crime."
The obvious objective of the Extradition Clause is that no State
should become a safe haven for the fugitives from a sister State's
criminal justice system. As this Court noted in its first
opportunity to construe the Extradition Clause:
"[T]he statesmen who framed the Constitution were fully sensible
that, from the complex character of the Government, it must fail
unless the States mutually supported each other and the General
Government; and that nothing would be more likely to disturb its
peace, and end in discord, than permitting an offender against the
laws of a State, by passing over a mathematical line which divides
it from another, to defy its process, and stand ready, under the
protection of the State, to repeat the offence as soon as another
opportunity offered."
65 U. S. Dennison,
24 How. 66, 100 (1861).
The Extradition Clause, however, does not specifically establish
a procedure by which interstate extradition is to take place, and,
accordingly, has never been considered to be self-executing.
See, e.g., Hyatt v. People ex rel. Corkran, 188 U.
S. 691,
188 U. S.
708-709 (1903);
Kentucky v. Dennison, supra, at
65 U. S. 104.
Early in our history, the lack of an established procedure led to a
bitter dispute between the States of Virginia and Pennsylvania. J.
Scott, Law of Interstate Rendition 5-7 (1917). In 1791,
Pennsylvania demanded the extradition of three men charged with
kidnaping a free black man and selling him into slavery. Virginia
refused to comply with Pennsylvania's demand. The controversy was
finally submitted to President Washington who, relying upon the
advice of Attorney General Randolph, 9 National State Papers of the
United States 1789-1817, pt. II, pp. 144-145 (E. Carzo ed.1985),
personally appeared before the Congress to obtain the enactment of
a law to regulate the extradition process. Congress
Page 482 U. S. 407
responded by enacting the Extradition Act of 1793, which
provides in its current form:
"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."
18 U.S.C. § 3182.
This Court has held the Extradition Act of 1793 to be a proper
exercise of Congress' powers under the Extradition Clause and Art.
IV, § 1, to "prescribe the manner in which acts, records and
proceedings shall be proved, and the effect thereof"
Kentucky
v. Dennison, supra, at
65 U. S. 105;
Prigg v.
Pennsylvania, 16 Pet. 539,
41 U. S.
618-622 (1842). By the express terms of federal law,
therefore, the asylum State is bound to deliver up to the demanding
State's agent a fugitive against whom a properly certified
indictment or affidavit charging a crime is lodged.
The language, history, and subsequent construction of the
Extradition Act make clear that Congress intended extradition to be
a summary procedure. As we have repeatedly held, extradition
proceedings are "to be kept within narrow bounds"; they are
"emphatically" not the appropriate time or place for entertaining
defenses or determining the guilt or innocence of the charged
party.
Biddinger v.
Commissioner
Page 482 U. S. 408
of Police, 245 U. S. 128,
245 U. S. 135
(1917);
see also, e.g., Michigan v. Doran, 439 U.
S. 282,
439 U. S. 288
(1978);
Drew v. Thaw, 235 U. S. 432,
235 U. S. 440
(1914);
Pierce v. Creecy, 210 U.
S. 387,
210 U. S. 405
(1908);
In re Strauss, 197 U. S. 324,
197 U. S.
332-333 (1905). Those inquiries are left to the
prosecutorial authorities and courts of the demanding State, whose
duty it is to justly enforce the demanding State's criminal law --
subject, of course, to the limitations imposed by the Constitution
and laws of the United States.
Biddinger v. Commissioner of
Police, supra, at
245 U. S. 135;
Drew v. Thaw, supra, at
235 U. S. 440.
The courts of asylum States may do no more than ascertain whether
the requisites of the Extradition Act have been met. As the Court
held in
Michigan v. Doran, supra, the Act leaves only four
issues open for consideration before the fugitive is delivered
up:
"(a) whether the extradition documents, on their face, are in
order; (b) whether the petitioner has been charged with a crime in
the demanding state; (c) whether the petitioner is the person named
in the request for extradition; and (d) whether the petitioner is a
fugitive."
439 U.S. at
439 U. S.
289.
The parties argue at length about the propriety of the
California courts' taking judicial notice of their prior child
custody decrees in this extradition proceeding. But even if taking
judicial notice of the decrees is otherwise proper, the question
remains whether the decrees noticed were relevant to one of these
four inquiries. The Smolins do not dispute that the extradition
documents are in order, that they are the persons named in the
documents and that they meet the technical definition of a
"fugitive." Their sole contention is that, in light of the earlier
California custody decrees and the federal Parental Kidnaping
Prevention Act of 1980, 28 U.S.C. § 1738A, they have not been
properly charged with a violation of Louisiana's kidnaping statute,
La.Rev.Stat.Ann. § 14:45 (West 1986).
Page 482 U. S. 409
Section 14:45A(4) prohibits the
"intentional taking, enticing or decoying away and removing from
the state, by any parent, of his or her child, from the custody of
any person to whom custody has been awarded by any court of
competent jurisdiction of any state, without the consent of the
legal custodian, with intent to defeat the jurisdiction of the said
court over the custody of the child."
A properly certified Louisiana information charges the Smolins
with violating this statute by kidnaping Jennifer and Jamie Smolin.
The information is based on the sworn affidavit of Judith Pope,
which asserts:
"On March 9, 1984, at approximately 7:20 a. m., Richard Smolin
and Gerard Smolin, kidnapped Jennifer Smolin, aged 10, and James C.
Smolin, aged 9, from the affiant's custody while said children were
at a bus stop in St. Tammany Parish, Louisiana."
"The affiant has custody of the said children by virtue of a
Texas court order dated February 5, 1981, a copy of said order
attached hereto and made part hereof. The information regarding the
actual kidnapping was told to the affiant by witnesses Mason
Galatas and Cheryl Galatas of 2028 Mallard Street, Slidell,
Louisiana, and Jimmie Huessler of 2015 Dridle Street, Slidell,
Louisiana. Richard Smolin and Gerard Smolin were without authority
to remove children from affiant's custody."
App. B to Pet. for Cert. 5-6. The information is in proper form,
and the Smolins do not dispute that the affidavit, and documents
incorporated by reference therein set forth facts that clearly
satisfy each element of the crime of kidnaping as it is defined in
La.Rev.Stat.Ann. § 14:45A(4) (West 1986). If we accept as true
every fact alleged, the Smolins are properly charged with kidnaping
under Louisiana law. In our view, this ends the inquiry into the
issue whether or not a crime is charged for purposes of the
Extradition Act.
Page 482 U. S. 410
The Smolins argue, however, that more than a formal charge is
required, citing the following language from
Roberts v.
Reilly, 116 U. S. 80,
116 U. S. 95
(1885):
"It must appear, therefore, to the governor of the State to whom
such a demand is presented, before he can lawfully comply with it,
first, that the person demanded is substantially charged with a
crime against the laws of the State from whose justice he is
alleged to have fled, by an indictment or an affidavit, certified
as authentic by the governor of the State making the demand. . .
."
"[This] is a question of law, and is always open upon the face
of the papers to judicial inquiry, on an application for a
discharge under a writ of habeas corpus."
The Smolins claim that this language in
Roberts spawned
a widespread practice of permitting the fugitive, upon a petition
for writ of habeas corpus in the asylum State's courts, to show
that the demanding State's charging instrument is so insufficent
that it cannot withstand some generalized version of a motion to
dismiss or common law demurrer. Tr. of Oral Arg. 29-36. The cases
the Smolins principally rely upon as support for this asserted
practice are
People ex rel. Lewis v. Commissioner of Correction
of City of New York, 100 Misc.2d 48, 417 N.Y.S.2d 377 (1979),
aff'd, 75 App.Div.2d 526, 426 N.Y.S.2d 969 (1980), and
Application of Varona, 38 Wash. 2d
833,
232 P.2d
923 (1951).
See Brief for Respondent 15-17. In
Lewis, however, the New York trial court actually granted
extradition despite its apparent misgivings about the
substantiality of the criminal charge.
Lewis, supra, at
56, 417 N.Y.S.2d at 382. And, in
Varona, the Washington
Supreme Court relied on the fact that the indictment, on its face,
did not charge a crime under California law.
Application of
Varona, supra, at 833-834, 232 P.2d at 923-924. Neither case,
in our view, supports the broad proposition that the asylum State's
courts may entertain motions to dismiss or demurrers to the
indictment or information from the demanding State.
Page 482 U. S. 411
To the contrary, our cases make clear that no such inquiry is
permitted. For example, in
Pierce v. Creecy, decided after
Roberts, supra, this Court refused to grant relief from
extradition over multiple objections to the sufficiency of the
indictment. The
Pierce Court concluded that it was enough
that
"the indictment, whether good or bad, as a pleading,
unmistakably describes every element of the crime of false
swearing, as it is defined in the Texas Penal Code. . . ."
210 U.S. at
210 U. S. 404.
It reasoned:
"If more were required, it would impose upon courts, in the
trial of writs of habeas corpus, the duty of a critical examination
of the laws of States with whose jurisprudence and criminal
procedure they can have only a general acquaintance. Such a duty
would be an intolerable burden, certain to lead to errors in
decision, irritable to the just pride of the States, and fruitful
of miscarriages of justice. The duty ought not be assumed unless it
is plainly required by the Constitution, and, in our opinion, there
is nothing in the letter or the spirit of that instrument which
requires or permits its performance."
Id. at
210 U. S. 405.
Similarly, in
Biddinger v. Commissioner of Police,
245 U. S. 128
(1917), the appellant argued that he had a seemingly valid statute
of limitations defense based on the fact that more than three
years, the limitations period, had elapsed since the date of the
crime recited in the indictment, and that he had been publicly and
openly resident in the demanding State for that entire period. The
Court found that the question of limitations was properly
considered only in the demanding State's courts.
Id. at
245 U. S. 135;
see also Drew v. Thaw, 235 U.S. at
235 U. S.
439-440 (whether the escape of a person committed to a
mental institution is a crime "is a question as to the law of New
York which the New York courts must decide").
This proceeding is neither the time nor place for the Smolins'
arguments that Judith Pope's affidavit is fraudulent,
Page 482 U. S. 412
and that the California custody decrees establish Richard as the
lawful custodian under the full faith and credit provision of the
federal Parental Kidnaping Prevention Act of 1980. There is nothing
in the record to suggest that the Smolins are not entirely correct
in all of this: that California had exclusive modification
jurisdiction over the custody of Jennifer and Jamie; that, under
the California decrees, Richard Smolin had lawful custody of the
children when he brought them to California; and, that,
accordingly, the Smolins did not violate La.Rev.Stat.Ann. §
14:45A(4) (West 1986) as is charged. Of course, the Parental
Kidnaping Prevention Act of 1980 creates a uniform federal rule
governing custody determinations, a rule to which the courts of
Louisiana must adhere when they consider the Smolins' case on the
merits. We are not informed by the record why it is that the States
of California and Louisiana are so eager to force the Smolins
halfway across the continent to face criminal charges that, at
least to a majority of the California Supreme Court, appear
meritless. If the Smolins are correct, they are not only innocent
of the charges made against them, but also victims of a possible
abuse of the criminal process. But, under the Extradition Act, it
is for the Louisiana courts to do justice in this case, not the
California courts:
"surrender is not to be interfered with by the summary process
of habeas corpus upon speculations as to what ought to be the
result of a trial in the place where the Constitution provides for
its taking place."
Drew v. Thaw, supra, at
235 U. S. 440.
The judgment of the California Supreme Court is
Reversed.
* The California Supreme Court found that, under the Parental
Kidnaping Prevention Act, California had exclusive modification
jurisdiction over the original custody decree.
41 Cal. 3d
758, 770,
716 P.2d 991,
999 (1986).
See 28 U.S.C. § 1738A(d) ("The jurisdiction of
a court of a State which has made a child custody determination
consistently with the provisions of this section continues as long
as [such court has jurisdiction under the law of such State] and
such State remains the residence of the child or any contestant");
28 U.S.C. § 1738A(f) ("A court of a State may modify a
determination of the custody of the same child made by a court of
another State, if -- . . . (2) the court of the other State no
longer has jurisdiction, or it has declined to exercise such
jurisdiction to modify such determination").
JUSTICE STEVENS, with whom JUSTICE BRENNAN joins,
dissenting.
There is no constitutional or statutory reason why the scope of
an asylum State's judicial inquiry need be so narrow that it
precludes the grant of habeas corpus in this case. It has been
settled for over a century that, before the Governor of an asylum
State can lawfully comply with a requesting
Page 482 U. S. 413
State's demand for extradition, it must appear that the person
sought is "substantially charged with a crime" and is also a
fugitive from justice.
Roberts v. Reilly, 116 U. S.
80,
116 U. S. 95
(1885). [
Footnote 1]
"The first of these prerequisites is a question of law, and is
always open upon the face of the papers to judicial inquiry, on an
application for a discharge under a writ of habeas corpus."
Ibid. Because there is no reasonable possibility that
the charges of simple kidnaping filed against Richard and Gerard
Smolin in Louisiana are valid, I agree with the California Supreme
Court's conclusion that they have not been substantially charged
with a crime. In addition, the Parental Kidnaping Prevention Act of
1980, 28 U.S.C. § 1738A, makes clear that Richard had custody of
his daughters, and thus there is no reasonable possibility that his
travel from Louisiana to California with them made him a fugitive
from justice.
I
The scope of the legal inquiry preceding extradition is
extremely restricted, because the courts of the asylum State cannot
be expected to make "a critical examination of the laws of States
with whose jurisprudence and criminal procedure they can have only
a general acquaintance."
Pierce v. Creecy, 210 U.
S. 387,
210 U. S. 405
(1908). Nevertheless, our precedents make clear that, if a critical
allegation of fact in the indictment is "impossible in law,"
see Roberts, 116 U.S. at
116 U. S. 96,
the asylum State must refuse the extradition demand because the
person has not been substantially charged with a crime.
Munsey
v. Clough, 196 U. S. 364,
196 U. S. 373
(1905).
In Drew v. Thaw, 235 U. S. 432
(1914), the habeas corpus petitioner was under a New York
indictment for conspiracy to obstruct the due administration of
laws; he was charged with plotting to effect his own escape from an
insane asylum to which he had been committed. Justice Holmes'
opinion for
Page 482 U. S. 414
the Court held that the indictment charged a crime because New
York courts could decide that the conspiracy charged "did tend to
obstruct the due administration of the law."
Id. at
235 U. S. 439.
Even though the habeas court could not inquire "upon the facts or
the law of the matter to be tried," Justice Holmes made it clear
that there nevertheless must be a "reasonable possibility" that the
crime charged "may be such."
Id. at
235 U. S.
439-440. [
Footnote
2]
In
Pierce v. Creecy, the Court acknowledged that
"an objection which, if well founded, would destroy the
sufficiency of the indictment, as a criminal pleading, might
conceivably go far enough to destroy also its sufficiency as a
charge of crime."
210 U.S. at
210 U. S. 404.
The Court concluded that the objections to the indictment in that
case were not of that nature. Likewise, in
In re Strauss,
197 U. S. 324
(1905), Ohio sought a fugitive who had been charged by affidavit
before a justice of the peace for a felony which was subject to
trial only upon an indictment. This Court found no constitutional
barrier to extradition on those facts, but observed that the
availability of extradition must be balanced against the duty of
courts to avoid injustice:
"It may be true, as counsel urge, that persons are sometimes
wrongfully extradited, particularly in cases like the present; that
a creditor may wantonly swear to an affidavit charging a debtor
with obtaining goods under false pretences. . . . While courts will
always endeavor to see that no such attempted wrong is successful,
on the other hand, care must be taken that the
Page 482 U. S. 415
process of extradition be not so burdened as to make it
practically valueless."
Id. at
197 U. S.
332-333.
The inquiry undertaken by the California courts in this case
established the "impossibility in law" of convicting the Smolins,
and therefore the injustice of their extradition. The crime charged
was two counts of simple kidnaping in violation of Louisiana law,
which defines the crime, in relevant part, as:
"The intentional taking, enticing or decoying away and removing
from the state, by any parent of his or her child, from the custody
of any person to whom custody has been awarded by any court of
competent jurisdiction of any state, without the consent of the
legal custodian, with intent to defeat the jurisdiction of the said
court over the custody of the child."
La.Rev.Stat.Ann. § 14:45A(4) (West 1986). In my opinion, the
limited scope of the inquiry open to the California courts in this
case did not preclude an examination of either federal law or
California's own judicial decrees. This summary examination was
permissible because it had a direct bearing on whether the
information "substantially charged" the Smolins with a crime, or
whether there was no reasonable possibility that the crime of
simple kidnaping charged "may be such."
Drew v. Thaw, 235
U.S. at
235 U. S.
440.
The Smolins' conviction for this crime was an impossibility for
three reasons. First, a California court, the court of competent
jurisdiction under the federal Parental Kidnaping Prevention Act,
[
Footnote 3] had awarded sole
custody of Jennifer and Jamie to Richard Smolin more than three
years before he took them to California; he plainly could not be
convicted of removing the children from his own custody. Second,
regardless of whether Richard or Judith Smolin had custody of the
children, he clearly believed that custody had been
Page 482 U. S. 416
awarded to him by a California court which retained
jurisdiction. His act of taking the children to California
therefore could not have been accomplished with the intent to
defeat the jurisdiction of that court. Third, because he did not
believe that a Louisiana court had jurisdiction over the custody
determination, he could not logically be convicted under the
kidnaping statute for departing from Louisiana with the intent to
defeat the jurisdiction of the courts of that State. There is, in
short, no possibility -- and certainly no "reasonable possibility"
-- that his conduct violated the Louisiana statute cited in the
extradition papers. [
Footnote
4] A sensible application of the requirement that a fugitive
must be "substantially charged" with a crime, informed by the twin
necessities of avoiding a trial-like inquiry into the law of sister
States and preventing the injustice of extradition to face a
legally impossible charge, leads me to conclude that the judgment
of the California Supreme Court should be affirmed.
The Court's heavy reliance on the dicta in
Michigan v.
Doran, 439 U. S. 282,
439 U. S. 288
(1978), and
Biddinger v. Commissioner of Police,
245 U. S. 128,
245 U. S. 135
(1917), is misplaced. The issue in
Doran was whether a
court in the asylum State could review the demanding State's
judicial determination that there was probable cause for the
fugitive's arrest -- an issue that is entirely unrelated to the
substantiality of the criminal charge. The fact that the Court
omitted the word "substantial"
Page 482 U. S. 417
in its summary description of the proper inquiry in the asylum
State surely was not intended to modify or eliminate a requirement
that this Court had recognized for decades.
See, e.g.,
McNichols v. Pease, 207 U. S. 100,
207 U. S.
108-109 (1907) (accused must be "substantially charged
with crime against the laws of the demanding State");
Ex parte
Reggel, 114 U. S. 642,
114 U. S. 651
(1885) (indictment accompanying the requisition was valid because
it substantially charged the crime). In recognition of this
longstanding requirement, the Uniform Criminal Extradition Act,
which both Louisiana and California have adopted, specifies that
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."
11 U.L.A. 92 (1974); La.Code Crim.Proc.Ann., Art. 263 (West
1967); Cal.Penal Code Ann. § 1548.2 (West 1982).
The
Biddinger case relied upon by the Court is also
inapposite because the validity of the fugitive's statute of
limitations defense in that case depended on the law of the
demanding State; the fact that the limitations period had expired
between the date of the offense and the charge did not foreclose
the possibility that the statute had been tolled. 245 U.S. at
245 U. S.
131-132,
245 U. S. 135.
The common thread in
Doran and
Biddinger, as in
Drew v. Thaw, supra, is that an asylum state court's
inquiry may not reach the merits of issues that could be fully
litigated in the charging State; such examinations entangle the
asylum State's judicial system in laws with which it is unfamiliar,
and endanger the summary nature of extradition proceedings. To
obtain habeas relief, "[t]here must be objections which reach
deeper into the indictment than those which would be good against
it in the court where it is pending."
Pierce v. Creecy,
210 U.S. at
210 U. S. 401;
cf. Pacileo v. Walker, 449 U. S. 86,
449 U. S. 87-88
(1980) (per curiam) (California Supreme Court erred in granting
habeas relief to fugitive by directing its Superior Court to
determine whether prison conditions in demanding State violated
Eighth Amendment).
Page 482 U. S. 418
Neither of those dangers is posed by the respondent California
Superior Court's conclusion that the Smolins had legal custody, and
thus were not "substantially charged" with kidnapint. [
Footnote 5]
II
Prima facie proof that the accused be "a fugitive from
the justice of the demanding State" is a "condition precedent to
the surrender of the accused."
Ex parte Reggel, 114 U.S.
at
114 U. S.
652-653. Deeming Richard Smolin a "fugitive from
justice" would not serve the purpose of the Extradition Clause. The
Framers' provision for extradition was designed to prevent state
boundaries from becoming impermeable walls within which "the
fugitives from a sister State's criminal justice system" may find
"safe haven."
Ante at
482 U. S. 406
(quoting
Kentucky v.
Dennison, 24 How. 66,
65 U. S. 100
(1861));
cf. Jones v. Helms, 452 U.
S. 412,
452 U. S. 419
(1981) (State's right to obtain extradition of criminal necessarily
qualifies that citizen's right to interstate travel). The
requirement that fugitivity be established nevertheless has some
teeth to it; [
Footnote 6]
otherwise, state boundaries would become mere markings in an atlas,
and the demanding State could exercise criminal jurisdiction over a
person anywhere in the Union, regardless of the extent
Page 482 U. S. 419
of that person's culpable connection with the State. [
Footnote 7] Thus, to be a fugitive from
justice, it is necessary
"that, having within a State committed that which by its laws
constitutes a crime, when he is sought to be subjected to its
criminal process to answer for his offence, he has left its
jurisdiction and is found within the territory of another."
Roberts v. Reilly, 116 U.S. at
116 U. S. 97
(emphasis added).
"For 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,
221 U. S. 285
(1911) (citing
Roberts v. Reilly, supra).
See also
Appleyard v. Massachusetts, 203 U. S. 222,
203 U. S. 227
(1906).
Despite this seemingly sweeping language, we have previously
rejected the claim that a person could be considered a fugitive if
he could establish that he was outside of the demanding State at
the time of the alleged offense, even if "constructive presence"
would be a sufficient basis for criminal liability. In
Munsey
v. Clough, we wrote:
"When it is conceded, or when it is so conclusively proved, that
no question can be made that the person was not within the
demanding State when the crime is said to have been committed, and
his arrest is sought on the ground only of a constructive presence
at that time, in the demanding State, then the court will discharge
the defendant.
Hyatt v. Corkran, 188 U. S.
691 [(1903)], affirming the judgment of the New York
Court of Appeals, 172 N.Y. 176 [1902]."
196 U.S. at
196 U. S.
374-375.
See also South Carolina v. Bailey,
289 U. S. 412,
289 U. S.
421-422 (1933);
McNichols v. Pease, 207 U.S. at
207 U. S.
109-110 (1907);
Ex parte Reggel, 114 U.S. at
114 U. S.
651.
Page 482 U. S. 420
Similarly, I believe that we should today reject the notion that
a parent who holds custody as determined by the Parental Kidnaping
Prevention Act of 1980, 28 U.S.C. § 1738A, must be extradited as a
charged kidnaper. Three reasons compel this conclusion. First, when
the fleeing parent lacks child custody under federal law, it is
proper to subject him or her to extradition in order to face
criminal prosecution. But when the parent acts consistently with
the federal law that governs interstate custody disputes, he should
not be deemed to have fled from the judicial process of the
demanding State. By allowing the custodial parent under federal law
to be branded as a fugitive, the Court implicitly approves
nonadherence to the uniform federal rule governing custody
determinations.
Second, requiring the extradition of Richard Smolin is at
cross-purposes with Congress' intent to "discourage continuing
interstate controversies over child custody" and to "deter
interstate abductions and other unilateral removals of children
undertaken to obtain custody and visitation awards."
See
28 U.S.C. § 1738A note. [
Footnote
8] Compelling extradition to face a criminal charge which
cannot lead to a conviction, no less than "child snatching," is the
coerced transportation of a party to a custodial dispute to another
forum in order to serve a private interest. It is anomalous that
the Act, which
Page 482 U. S. 421
was clearly intended to deter the former type of coercion,
should not also be interpreted to discourage the latter. [
Footnote 9]
Third, the Extradition Clause should be construed consistently
with the Parental Kidnaping Prevention Act because both are
expressions of the constitutional command of full faith and credit
that governs relations among the several States. The Extradition
Clause "articulated, in mandatory language, the concepts of comity
and full faith and credit, found in the immediately preceding
clause of Art. IV."
Michigan v. Doran, 439 U.S. at
439 U. S.
287-288. The courts of every State best adhere to this
principle, when considering an extradition request for alleged
parental kidnaping, by giving full faith and credit to custody
judgments rendered by other States as commanded by the Act. It is
clear to a court performing this task that the Smolins are not
fugitives within the meaning of the extradition request; as the
custodial parent under the federal statute, Richard Smolin did not
commit while in Louisiana "an act which by the law of the State
constitutes a crime."
Hogan v. O'Neill, 255 U. S.
52,
255 U. S. 56
(1921).
Page 482 U. S. 422
III
The Court is scrupulously fair in its recital of the facts and
frank in its acknowledgment that the criminal process may have been
abused in this case. The reasoning the Court follows nevertheless
adopts an overly restrictive view of the questions that the habeas
courts of a rendering State must pose. The law governing interstate
rendition for criminal proceedings does not foreclose a summary
inquiry into whether the crime charged is legally impossible.
Moreover, in an area in which Congress has seen fit to enact
nationwide legislation, I cannot agree that respect for the
criminal laws of other States requires the State of California
indiscriminately to render as fugitives those citizens who are
conclusorily charged with simple kidnaping for their exercise of a
right conferred upon them by a valid custody decree issued by a
California court. The Court's contrary conclusion will, I fear,
produce unnecessary inconvenience and injustice in this case and
provide estranged parents with an inappropriate weapon to use
against each other as they wage custody disputes throughout this
land.
I respectfully dissent.
[
Footnote 1]
See also Hyatt v. Corkran, 188 U.
S. 691,
188 U. S.
709-710 (1903);
Munsey v. Clough, 196 U.
S. 364,
196 U. S.
372-373 (1905);
Pierce v. Creecy, 210 U.
S. 387,
210 U. S. 401,
405 (1908).
[
Footnote 2]
"When, as here, the identity of the person, the fact that he is
a fugitive from justice, the demand in due form, the indictment by
a grand jury for what it and the Governor of New York allege to be
a crime in that State, and the reasonable possibility that it may
be such, all appear, the constitutionally required surrender is not
to be interfered with by the summary process of habeas corpus upon
speculations as to what ought to be the result of a trial in the
place where the Constitution provides for its taking place."
Drew v. Thaw, 235 U. S. 432,
235 U. S. 440
(1914) (emphasis supplied).
[
Footnote 3]
See ante at
482 U. S. 405,
n.
[
Footnote 4]
The Louisiana Assistant District Attorney who filed the
information against the Smolins was aware of the California custody
orders at the time he filed the information. He believed, however,
that a crime had been committed because
"he viewed the California judgment as being void, having been
obtained by fraudulent misrepresentations, and the valid order
having been that issued by Texas on February 13, 1981."
41 Cal. 3d
758, 763, n. 1,
716 P.2d 991,
993, n. 1 (1986). In my opinion, that speculation on the part of
the Assistant District Attorney is inadequate to overcome the fact
that Richard Smolin, as the holder of a custody determination that
was valid on its face, could not be substantially charged with a
crime for his exercise of the parental rights conferred upon him by
that custody determination.
[
Footnote 5]
An asylum State's review of a determination by a magistrate in
the requesting State that probable cause exists to arrest the
fugitive may cause "friction and delay," but nothing indicates that
"routine and basic inquiry" into the existence of a charge "has led
to frustration of the extradition process."
Michigan v.
Doran, 439 U. S. 282,
439 U. S.
296-297, n. 7 (1978) (BLACKMUN, J., concurring in
result).
[
Footnote 6]
"Any other interpretation would lead to the conclusion that the
mere requisition by the executive of the demanding State,
accompanied by the copy of an indictment, or an affidavit before a
magistrate, certified by him to be authentic, charging the accused
with crime committed within her limits, imposes upon the executive
of the State or Territory where the accused is found the duty of
surrendering him, although he may be satisfied, from incontestable
proof, that the accused had, in fact, never been in the demanding
State, and, therefore, could not be said to have fled from its
justice."
Ex parte Reggel, 114 U. S. 642,
114 U. S. 652
(1885).
[
Footnote 7]
In the context of extradition -- a form of recognition of
sister-state indictments -- no less than in the context of
recognition of judgments or of laws, "[s]tate boundaries are
neither irrelevancies nor licenses to disengage." Brilmayer, Credit
Due Judgments and Credit Due Laws: The Respective Roles of Due
Process and Full Faith and Credit in the Interstate Context, 70
Iowa L.Rev. 95, 112 (1984).
[
Footnote 8]
A uniform rule establishing which parent has custody deters
"child snatching."
See Field, Sources of Law: The Scope of
Federal Common Law, 99 Harv.L.Rev. 881, 959, n. 340 (1986). The
Parental Kidnaping Prevention Act achieves a uniform rule in
practice by establishing the circumstances under which a State may
render or modify a child custody determination and requiring that
other States give full faith and credit to judgments that conform
to these standards.
See 28 U.S.C. §§ 1738A(a), (c) (g). If
States were free not to give full faith and credit to the custody
judgments of other States, a forum-shopping parent would have an
incentive to remove the child to a State which was more likely to
render a custodial decree in favor of that parent.
See
Brilmayer,
supra, at 103.
[
Footnote 9]
Of course, persons who remove a child from a State in violation
of the Parental Kidnaping Prevention Act should be brought to
justice. Indeed, Congress has explicitly pointed out that the
Fugitive Felon Act, 18 U.S.C. § 1073, which makes it a federal
crime for a person to move or travel
"in interstate or foreign commerce with intent . . . to avoid
prosecution . . . under the laws of the place from which he flees,
for a crime . . . which is a felony under the laws of the place
from which the fugitive flees"
applies to parental kidnaping. 28 U.S.C. § 1738A note. The Act
also makes available, in certain limited instances, the assistance
of the Federal Bureau of Investigation in apprehending interstate
abductors.
See generally Donigan, Child Custody
Jurisdiction: New Legislation Reflects Public Policy Against
Parental Abduction, 19 Gonz.L.Rev. 1, 64-66 (1983-1984) (Department
of Justice does not interpret Act to require routine federal
involvement in parental abductions). Congress' assertions of the
federal interest in regulating parental abduction require habeas
courts to exercise particular vigilance that a custodial parent not
be extradited as a fugitive from justice.