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Criminal Law and Procedure; Bail bond for fugitive who has waived extradition

October 27, 1980

Subject:

Criminal Law and Procedure; Bail bond for fugitive who has waived extradition.

Requested By:

Onslow County Sheriff’s Department

Question:

When a fugitive waives extradition must he be confined to await the arrival of officers from the demanding state or may he post a bond?

Conclusion:

He may not post a bond.

Chapter 15A, Article 37 of the General Statutes — the Uniform Criminal Extradiction Act — sets out procedures for returning a fugitive found in North Carolina to a state from which he has fled. The demanding state may seek his return in writing, G.S. 15A-723, and the Governor may then issue a warrant for his arrest. G.S. 15A-727. In the alternative, the person arrested as a fugitive may waive the issuance of a Governor’s warrant and all other extradition proceedings and consent to return to the demanding state. G.S. 15A-746.

The Act specifically addresses the question of bail in extradition proceedings in only one instance. A person may be arrested prior to a requisition from a demanding state upon reasonable information that he is a fugitive from justice in another state. G.S. 15A-733 and 734. If he is found to be a fugitive, he may be allowed to post bail for the period during which he is awaiting the issuance of a Governor’s warrant based on a requisition from the state from which he fled.

G.S. 15A-735 and 736.

The Uniform Criminal Extradition Act is silent on the question of fugitive’s right to bail after his arrest on a Governor’s warrant or after he has waived extradition. No North Carolina case has addressed either situation, but other jurisdictions where the Uniform Act is in effect have held that once a fugitive has been arrested on a Governor’s warrant he may no longer be released on bail. See State v. Jacobson, 22 Ariz. App. 260, 526 P.2d 784 (1974) and cases cited therein. The rationales which appear consistently in these cases are that the general bail provisions which may appear in a state’s constitution or statutes are inapplicable to extradition, applying only to offenses against the asylum state itself, see Waller v. Jordan, 58 Ariz. 169, 118 P.2d 450 (1941); that there is no common law right to bail in an extradition proceeding, because extradition is a creature of constitution and statute, not of the common law, see State ex rel. Stringer v. Quigg, 91 Fla. 197, 107 So. 409 (1926); that because the Uniform Act specifies that bail may be allowed at one stage of the proceedings, it is fair to infer that the omission of a provision for bail after arrest on a Governor’s warrant was intentional, see Allen v. Wild, 249 Iowa 255, 86 N.W.2d 839 (1957); and that if bail is to be set it should be set by the demanding state after the fugitive has been returned to it. See Re Lucas, 136 N.J. Super. 24, 343 A.2d 845, aff’d. 136 N.J. Super. 460, 346 A.2d 624 (1975).

These rationales seem equally applicable to the situation where a fugitive has waived extradition. No policy reason appears why a fugitive who has demanded that statutory extradition procedures be followed to show that he should be returned to the demanding state should be less entitled to be free on bail than a fugitive who admits that the demanding state is entitled to his return. In either case the fact is that the person in question is already a fugitive, and his release on bail would make it possible for him to flee from justice once again.

The question remains whether the language of G.S. 15A-746, which allows for waiver of extradition, requires the inference that bail may be allowed. The second paragraph of that section directs that once a waiver is executed and filed in the Governor’s Office, the officer having the person "in custody" shall be directed to surrender him to agents of the demanding state. This language supports an inference that the person is to remain in custody rather than free on bail. The further language of this paragraph that "nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state" may not reasonably be interpreted to mean that bail should be allowed, since the waiver of extradition procedure itself entails a number of formalities, and since the fugitive’s return even in this situation is less than voluntary, following as it does arrest on a fugitive warrant and court proceedings.

In summary, a fugitive who has waived extradition should not be released on bail pending the arrival of agents from the demanding state to take him into custody.

Rufus L. Edmisten Attorney General

Lisa Shepherd Associate Attorney