Role of the United States Federal Courts in Extradition Matters: The Rule of Non-inquiry, Preventive Detention, and Comparative Legal Analysis

This paper argues several reasons why courts should consider whether the person to be extradited will face trial proceedings. In addition to this procedural analysis regarding at what point the rule of non-inquiry is applicable, this paper also stresses why it is necessary for U.S. federal judges to understand the criminal justice systems of other countries, and to engage in an analysis of such systems.

This paper first discusses the importance of understanding the criminal justice systems of other countries to explain why, as a matter of general policy, the rule of non-inquiry should not apply. Next, this paper briefly outlines the extradition process and asserts that as a matter of method of analysis, the question of whether the relator has been charged for purposes of the extradition treaty must be answered as a first step in determining whether the relator is extraditable at all, thus before the rule of non-inquiry enters the analysis. The focus of this paper then shifts to the meaning of the word charged in extradition treaties, and whether, as a matter of treaty interpretation, that term includes one who is sought by a foreign country for the purpose of preventive detention. Finally, this paper discusses some recent cases which indicate that federal courts might be beginning to seriously consider the issue raised in this paper.