The Journal of The DuPage County Bar Association

Back Issues > Vol. 21 (2008-09)

NIU's Northern Exposure
Bail in International Extraditions: How the “Special Circumstances” Standard Has Become “Especially Confusing”
By Christopher S. Kelly

I. Introduction
In Wright v. Henkel, the Supreme Court in dicta, and arguably by accident, gave birth to the “special circumstances” rule, which today governs bail determinations in international extradition cases. During the past century, the federal courts have slowly twisted and contorted the rule, creating a scheme that is both unclear and contradictory. With the United States’ foreign relations standing hanging in the balance, the time has come to finally address the issue of bail in international extraditions. This Comment begins by providing an overview of the current state of the common law controlling bail in foreign extradition proceedings. Next, it will discuss the key factors that have led to the ambiguous nature of the current system. Finally, it will offer a number of ideas to reform the applicable legal standard, before providing a brief conclusion.

II. Overview of the Law Governing Bail in Inter-national Extradition Cases
The law governing bail in international extradition cases is derived purely from the federal common law.1 Both the Bail Reform Act and the statute that controls foreign extradition proceedings fail to consider the issue of bail within the international extradition context.2 The Bail Reform Act applies only to persons accused of crimes against the United States, which a foreign extraditee is not,3 and the international extradition statute simply ignores the issue altogether.4 Additionally, not a single United States extradition treaty grants a right to bail, and some even expressly reject it.5 Thus, the task of giving shape to the law of bail in such cases has been left almost exclusively to the federal courts.6

In Wright v. Henkel, the Supreme Court recognized for the first time that a right to bail exists in international extraditions.7 Wright overturned a circuit court decision which held that in the absence of a statute allowing for bail in foreign extradition cases, the circuit courts had no power to grant it.8 The Court rejected this argument and stated that “while bail should not ordinarily be granted in cases of foreign extradition,” it was unwilling to hold that the courts, “may not in any case, and whatever the special circumstances, extend the relief.”9 Though dicta,10 this language established the “special circumstances” rule, which has become the standard for rendering bail decisions in international extradition cases.11

The special circumstances test has been read to have created a “presumption against bail in an extradition case,” which runs “contrary to the presumption that favors bail in domestic prosecutions.”12 While there is a constitutional preference for bail, an individual’s interest in liberty may be overcome where the government’s interest in denying that liberty is high.13 Treaties create a binding obligation on the United States government and its courts to deliver fugitives to its treaty partners once they are found to be extraditable.14 The government’s strong interest in denying bail stems from its overriding concern with meeting its international treaty obligations.15 If a foreign fugitive was released by the United States and absconded pending extradition, the government would suffer “diplomatic embarrassment” and both its foreign relations standing and its ability to procure the extradition of its own fugitives abroad would be threatened.16 The government’s interest in bail is strengthened by the inherent risk of flight that exists in foreign extradition cases.17 This suggests that the special circumstances rule was created as a means of significantly limiting the instances in which a person pending international extradition may be bailable as any risk that an extraditee may flee is too great a risk for the national interest to bear.18

Under the special circum-stances test, the extraditee must meet a two-pronged burden of proof to establish his or her eligibility for bail.19 The party must first show that they are not a flight risk or a danger to the community; however, “those factors are not special circumstances which alone justify release.”20 Then they must show that “special circumstances” exist in their particular case.21 Special circumstances exist where the need to grant bail is “pressing as well as plain,”22 and “when the requirements of justice are absolutely peremptory.”23 Most importantly, they are limited to the most extraordinary and unusual circumstances and cannot “concern factors applicable to all defendants facing extradition.”24 While some argue, based on this language, that “courts have taken a limited view of what constitutes special circumstances,”25 others counter that the rule “has apparently been a less stringent standard in practice than in theory.”26 Ultimately, the decision as to what constitutes a special circumstance is a discretionary decision for the trial judge, and “the list of potential special circumstances is not limited to those previously recognized in published decision[s],” as such decisions are merely instructive.27 The extraditee has the burden of establishing special circumstances by clear and convincing evidence, and multiple factors may be considered in culmination to meet that burden.28

Specifically, special circumstances have been found to exist either alone or when considered in culmination where: 1) the extraditee has a high probability of success on the merits;29 2) the extradition proceeding or appeal process has experienced (or is likely to experience) unusual delay;30 3) the party suffers a serious deterioration in health or has health issues which are untreatable in jail;31 4) bail is available for the underlying substantive offense in the extraditing country;32 5) a lack of suitable detention facilities exists;33 and 6) it is absolutely necessary that the party participate in a civil case.34

Conversely, the presence of special circumstances has been readily rejected in a wide variety of cases, including those in which the party: 1) needs to consult with counsel, confer with witnesses, or gather evidence;35 2) faces health and dietary challenges in custody;36 3) was arrested while on vacation;37 4) was not accused of a “serious” crime;38 5) had a good background and character;39 6) would be eligible for bail in the extraditing nation;40 7) would not receive credit for time served pending extradition by the extraditing nation;41 8) may be monitored electronically while released;42 9) would serve the public interest if released;43 10) posed no flight risk;44 11) was subjected to the discomfort of jail;45 12) was detained while a co-defendant was released on bail;46 13) is depended on by others;47 and 14) is a United States citizen whom the government is not compelled to extradite under the applicable treaty.48

III. An Overview of the Key Factors That Have Confused the Special Circumstances Rule
A review of the relevant case law quickly reveals that the special circumstances standard is anything but clear. The term has never been precisely defined, but has only been described in abstract ways which provide little guidance to trial judges in practice.49 Additionally, the cases are replete with contradictory and irreconcilable decisions, which only serve to further confuse the courts and muddy the law.50 As any weakening of the special circumstances standard could destroy the confidence of foreign nations in the United States’ ability to meet its treaty obligations, and thus poses a threat to the country’s foreign relations standing,51 the law must be clarified and standardized. However, in order to undertake any meaningful reform, the factors that led to the current state of disorder must first be identified.

The first issue with the current scheme is that the decision of what constitutes a special circumstance is a highly discretionary decision,52 most often relegated to magistrate and district court judges.53 The opinions of magistrate and district court judges hold no precedential value and are thus nonbinding on courts considering the issue of bail in foreign extraditions.54 Additionally, when the issue of bail is raised in such cases, defense attorneys have made a practice of setting forth as many special circumstances as they can possibly imagine.55 This approach has further convoluted the law by resulting in opinions that analyze a large number of special circumstances but fail to articulate how much weight should be given to each circumstance considered.56 Finally, any special circumstances decision by a district court is reviewed under a deferential “clearly erroneous” standard of review.57 The combination of these factors has confused the special circumstances rule,58 led to inconsistent results,59 and allowed judges to erode and ignore the common law.60

Beyond the deferential “clearly erroneous” standard used to review bail determinations in foreign extraditions,61 additional obstacles also face a party attempting to appeal such a ruling. In some instances, the decision to grant or deny bail may be wholly unreviewable. While those denied bail by a magistrate have been afforded review by a district court judge via an appeal, petition for writ of habeas corpus, or a motion to reconsider, some district courts have held that they lack the jurisdiction to review a magistrate’s decision to release an extraditee when the government seeks such review.62 At the circuit court level, both the government and extraditees have consistently obtained review of both magistrate and district court bail determinations;63 however, very few bail cases are decided by the circuit courts,64 most likely because the applicable bail decision quickly becomes moot.65 Thus, questionable procedures for appealing adverse bail decisions and the short timeline of international extraditions has clouded the common law by severely limiting the ability of the circuit courts to render binding decisions on the issue of bail in such cases, leaving the special circumstances rule almost entirely subjected to the whims of magistrate and district court judges.

Finally, in the one hundred years since the Wright decision,66 the Supreme Court and Congress have wholly failed to clarify the rules and procedures for deciding the issue of bail in international extradition proceedings. Arguably, as discussed supra, the Supreme Court’s opportunity to rectify the issue may be limited.67 Congress, however, has attempted to codify the exact scope of the judiciary’s power to admit bail in such cases a number of times, though it has failed to ever pass a law.68

Congress has apparently considered the national interest involved in delivering an extraditable person to a treaty partner, but has simply failed to clarify its view as to the proper rule for considering pre-extradition hearing bail. Congress ignored this issue when it passed both the Bail Reform Act and the international extradition statute.69 Consider the following: the burden of proof in an extradition hearing is low. And the international extradition statute specifically requires that if the defendant is found extraditable at the extradition hearing they be committed to jail and denied bail.70 Yet the Bail Reform Act allows a defendant who has been convicted of a crime against the United States to post bail in many cases (even though that defendant has not yet been sentenced). Based on the current state of the common law and the national interest involved in international extraditions,71 the time for Congress to pass clear legislation on this issue is long overdue.

IV. Call for Action: Ideas for Reforming Bail Deter-minations in Foreign Extradition Cases
The standard governing bail in foreign extradition proceedings could be clarified in three ways: a change to the common law; writing a bail standard into each U.S. extradition treaty; or through the passage of a new statute. As it is unlikely that the Supreme Court will have the opportunity to review a pre-extradition hearing bail decision,72 two feasable options for reform remain. While each certainly has its benefits and drawbacks, the need to clarify the law, especially when considering the important national interest involved in such cases,73 is pressing as well as plain. The following ideas are proffered in the hopes that they will spur debate and strengthen the call for Congress to clarify the current standard used to render bail decisions in international extradition cases.

First, specific bail guidelines could be included in the text of each U.S. extradition or mutual legal assistance treaty as treaties are held to be the “supreme law of the land.”74 Of the 126 extradition treaties to which the United States is a party, not a single one grants the right to bail;75 however, some expressly reject that bail may be granted in such cases.76 As the process of creating and entering into treaties is relegated to the discretion of the executive branch (with the consent of Congress),77 this approach would allow the treaty partners to weigh their respective interests in bail and to negotiate a standard agreeable to both parties.78 The problem with this approach is two-fold. First, a large number of treaties would have to be amended, which could prove to be a long, difficult, and expensive process for the government to undertake.79 Second, renegotiating the treaties, or adding an additional point of negotiation to the formation of new treaties, could force the United States to make unfavorable concessions in negotiations, strain its relations with foreign nations, or keep it from reaching reasonable extradition accords.80

The second way in which the law could be clarified is through the passage of a statute by Congress. Legislators could take a number of approaches to reform the current standard governing release in international extraditions. One approach would be to simply codify the special circumstances rule – mandating by law that an extraditee must show more than the fact that they are not a flight risk or danger to the community to be granted release. In effect, this would ensure that decisions like In re Chapman, where the court found a complete lack of flight risk sufficient to justify bail,81 were unable to errode the special circumstances standard,82 which would clarify the common law. Congress could further clarify the rule by articulating exactly which circumstances may be considered “special” by the courts, either alone or in culmination; the applicable evidentiary burden of proof in such cases; and specific procedures for the review of such bail decisions. In essence, this would create a legal scheme very similar to that codified by the Bail Reform Act, which clearly sets out the procedures for considering bail in domestic cases,83 while preserving a reasonable presumption against bail in foreign extraditions. It would also provide much needed guidance to the courts by clarifying what factors may be considered in making bail determinations, while leaving judges some discretion to allow bail in special cases.84

Congress could also simply choose to deny bail in international extradition cases altogether. Detaining defendants pending their extradition hearings would fully protect the national interest in meeting international treaty obligations by leaving extraditees unable to flee.85 The inherent risk of flight in extradition cases86 and the low burden of proof the government must meet in an extradition hearing87 further strengthens the argument that bail should be denied because of that risk of flight. The downside to this approach is that it runs completely counter to the constitutional preference for liberty,88 and mandates detention while providing little or no process to protect the extraditee’s rights.89

The best approach would be to adopt a scheme similar to that created by the Bail Reform Act, but require that the defendant prove both that they do not pose a flight risk and that they do not pose a danger to the community by “clear and convincing” evidence. This would have the benefit of simplifying the bail determination by ignoring the question of what circumstances may be considered “special,” and instead focusing solely on the strength of the defendant’s evidentiary proof.90 Additionally, as in the Bail Reform Act, Congress should articulate exactly what factors the court may consider in rendering its bail decision, which would provide guidance to judges while keeping them from erroding the law by reading in new factors to consider.91 Further, utilizing a “clear and convincing” burden of proof would also protect the national interest in meeting international treaty obligations by requiring that an extraditee prove they pose little or no risk of flight,92 but would still allow judges some flexibililty to allow bail in some cases.

V. Conclusion
While the special circumstances standard is sound in theory, one hundred years of federal case law has left it tattered and nearly unworkable. Unchecked discretion, inarticulate opinions, and a complete lack of guidance from Congress, the Executive, and the appellate courts have only exacerbated the problem and turned the calls for change into screams. Considering the large number of extradition treaties to which the United States is a party, a clarification of the law is essential if it is to protect its strong national interest in meeting those obligations. By adopting a scheme similar to that in the Bail Reform Act, but raising the evidentiary burden of proof to “clear and convincing,” Congress could appropriately balance the liberty interests of extraditees with the national interest in protecting foreign relations and provide much needed guidance to this very muddied area of federal law.

1 E.g., In re Rouvier, 839 F. Supp. 537, 539 (N.D. Ill. 1993).
2 E.g., In re Nacif-Borge, 829 F. Supp. 1210, 1213 (D. Nev. 1993); see 18 U.S.C. §§ 3141-3160, 3184 (2006).
3 E.g., In re Sutton, 898 F. Supp. 691, 693-94 (E.D. Mo. 1995) (citing 18 U.S.C. §§ 3141-3160 (1994)).
4 See 18 U.S.C. § 3184 (2006).
5 U.S. Dep’t of Justice, Bail in International Extraditions 1, 1 n.4 (2007); see, e.g., Nacif-Borge, 829 F. Supp. at 1213 (“[T]he treaty between the United States and Mexico does not outline bail procedures, or indeed mention bail whatsoever.”).
6 See Rouvier, 839 F. Supp. at 539.
7 190 U.S. 40, 63 (1903).
8 In re Wright, 123 F. 463, 464 (C.C.S.D.N.Y. 1903).
9 Wright, 190 U.S. at 63.
10 See id. at 63 (stating that while it was unwilling to hold that the courts had no power to grant bail in foreign extraditions, it was not “called upon to do so, as . . . no error was committed in refusing to admit to bail [in this case]”).
11 See, e.g., Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989).
12 In re Kirby, 106 F.3d 855, 858 (9th Cir. 1996).
13 United States v. Salerno, 481 U.S. 739, 750-51, 755 (1987). While one court has challenged the constitutionality of the presumption against bail in international extradition cases under the Fifth Amendment’s Due Process Clause, its opinion was withdrawn in an en banc decision. Parretti v. United States, 122 F.3d 758, 777-81 (9th Cir. 1997), withdrawn in part, 143 F.3d 508 (9th Cir. 1998) (en banc).
14 See U.S. Const. art. VI (declaring that treaties are the “supreme law of the land”).
15 E.g., Borodin v. Ashcroft, 136 F. Supp. 2d 125, 128 (E.D.N.Y. 2001); see also United States v. Lopez-Flores, 63 F.3d 1468, 1473 (9th Cir. 1995) (“Foreign relations [is a] paramount federal concern.”); In re Nacif-Borge, 829 F. Supp. 1210, 1213 (D. Nev. 1993) (“The primary concern in an international extradition matter is to deliver the extraditee to the requesting nation.”).
16 Lopez-Flores, 63 F.3d at 1473; see also Jeffrey A. Hall, Note, A Recommended Approach to Bail in International Extradition Cases, 86 Mich. L. Rev. 599, 603-04 (1987) (recognizing that failing to comply with extradition treaties could make the United States a safe-haven for international fugitives).
17 This “inherent risk” stems from the fact that many extraditions seek the return of a person who fled when faced with prosecution or punishment. See, e.g., In re Heilbronn, 773 F. Supp. 1576, 1582 (W.D. Mich. 1991); Spatola v. United States, 741 F. Supp. 362, 366 n.14 (E.D.N.Y. 1990).
18 See Wright v. Henkel, 190 U.S. 40, 62 (1903); see also Hall, supra note 16, at 614 (noting that requiring the presence of “special circumstances” in international extradition cases adds nothing to the protection of the government’s foreign relations interests, which further suggests that the rule seeks to protect said interests and minimize the risk of flight by limiting the number of cases in which bail is made available).
19 See In re Santos, 473 F. Supp. 2d 1030, 1035 (C.D. Cal. 2006).
20 E.g., id.
21 E.g., id.
22 In re Nacif-Borge, 829 F. Supp. 1210, 1214 (D. Nev. 1993).
23 In re Mitchell, 171 F. 289, 290 (S.D.N.Y. 1909) (Hand, J.).
24 In re Mainero, 950 F. Supp. 290, 294 (S.D. Cal. 1994); see United States v. Zarate, 492 F. Supp. 2d 514, 515 (D. Md. 2007).
25 In re Sutton, 898 F. Supp. 691, 694 (E.D. Mo. 1995).
26 United States v. Messina, 566 F. Supp. 740, 742 (E.D.N.Y. 1983).
27 In re Santos, 473 F. Supp. 2d 1030, 1036 (C.D. Cal 2006) (quoting In re Gonzalez, 52 F. Supp. 2d 725, 736 (W.D. La. 1999)).
28 In re Nacif-Borge, 829 F. Supp. 1210, 1215-16 (D. Nev. 1993).
29 See Santos, 473 F. Supp. 2d at 1038.
30 Id. (citing In re Chapman, 459 F. Supp. 2d 1024, 1026-27 (D. Haw. 2006); In re Gonzalez, 52 F. Supp. 2d 725, 735 (W.D. La. 1999); In re Kirby, 106 F.3d 855, 863 (9th Cir. 1996)). It should be noted that such delay cannot be caused by the defendant. See In re Rovelli, 977 F. Supp. 566, 569 (D. Conn. 1997).
31 In re Hamilton-Byrne, 831 F. Supp. 287, 290-91 (E.D. Mo. 1995); In re Salerno, 878 F.2d 317, 317 (9th Cir. 1989); see also United States v. Taitz, 130 F.R.D. 442, 446 (S.D. Cal. 1990) (finding special circumstances to exist where the defendant was allergic to the clothing and food in the detention facility).
32 In re Nacif-Borge, 829 F. Supp. 1210, 1221 (D. Nev. 1993).
33 Hu-Yau-Leung v. Soscia, 649 F.2d 914, 916, 920 (2d Cir. 1981) (holding that special circumstances existed where no suitable detention facility was available to house a sixteen year old extraditee); see also United States v. Taitz, 130 F.R.D. 442, 446 (S.D. Cal. 1990) (finding special circumstances where the party was unable to exercise their religion while in custody).
34 See In re Bowey, 147 F. Supp. 2d 1365 (N.D. Ga. 2001) (finding a special circumstance where the party’s divorce case had implications on his extradition); In re Mitchell, 171 F. 289, 290 (S.D.N.Y. 1909) (allowing bail so the party could participate in a civil case upon which “his whole fortune depend[ed]”).
35 In re Smyth, 976 F.2d 1535, 1535 (9th Cir. 1992).
36 In re Nacif-Borge, 829 F. Supp. 1210, 1216-17 (D. Nev. 1993) (rejecting the party’s request for bail in spite of the fact that he had only one kidney and required a special diet not available in jail).
37 Id. at 1217-18.
38 Id. at 1219-20 (holding that being accused of an “economic” offense was not a special circumstance).
39 In re Sidali, 868 F. Supp. 656, 658-59 (D.N.J. 1994); Id. at 1220. But see United States v. Taitz, 130 F.R.D. 442, 446 (S.D. Cal. 1990) (finding special circumstances where the party had no criminal record).
40 In re Sutton, 898 F. Supp. 691, 694-95 (E.D. Mo. 1995).
41 In re Kirby, 106 F.3d 855, 863 (9th Cir. 1996).
42 In re Rovelli, 977 F. Supp. 566, 569 (D. Conn. 1997).
43 See Borodin v. Ashcroft, 136 F. Supp. 2d 125, 128-31 (E.D.N.Y. 2001) (rejecting that a special circumstance existed where the party was a leader of the Russian-Belarus Union and claimed that his presence at the Union was crucial to its proper functioning); In re Heilbronn, 773 F. Supp. 1576, 1581-82 (W.D. Mich. 1991) (denying bail where the defendant served the public interest as a doctor). But see United States v. Wroclawski, No. 07-00302M, 2008 WL 2351041, at *1, — F. Supp. 2d — (D. Ariz. 2008) (finding a special circumstance where a wrestling coach sought release to coach athletes for the U.S. Olympic Trials).
44 E.g., Salerno v. United States, 878 F.2d 317, 318 (9th Cir. 1989) (“[The defendant] contends that because he is not a flight risk, he is entitled to bail . . . . That is not the criteria for release in an extradition case.”). But see In re Chapman, 459 F. Supp. 2d 1024, 1027 (D. Haw. 2006) (suggesting that a complete lack of a risk of flight could rise to the level of a special circumstance).
45 United States v. Williams, 611 F.2d 914, 915 (1st Cir. 1979).
46 Id.
47 See In re Russell, 805 F.2d 1215, 1217 (5th Cir. 1986) (rejecting that “financial and emotional hardship” on the defendant’s family caused by his detention was a special circumstance).
48 In re Sacirbegovic, 280 F. Supp. 2d 81, 85 (S.D.N.Y. 2003).
49 See supra notes 22-24 and accompanying text.
50 Compare In re Nacif-Borge, 829 F. Supp. 1210, 1221 (D. Nev. 1993) (holding that the availability of bail in the extraditing country is a special circumstance) with In re Sutton, 898 F. Supp. 691, 694-95 (E.D. Mo. 1995) (rejecting that the availability of bail in the extraditing nation is a special circumstance).
51 In re Kirby, 106 F.3d 855, 859 (9th Cir. 1996).
52 See supra note 27 and accompanying text.
53 U.S. Dep’t of Justice, supra note 5, at 5-6.
54 Id. at 6.
55 Nina Marino & Nicole Eiland, Defending International Extraditions, Crim. Just., Winter 2008, at 4.
56 See, e.g., In re Nacif-Borge, 829 F. Supp. 1210, 1216-21 (D. Nev. 1993).
57 United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990). It should be noted that a magistrate’s decision to grant or deny bail is reviewed by the district court either de novo, United States v. Hills, 765 F. Supp. 381, 384 n.3 (E.D. Mich. 1991), or under a “reasonable grounds” standard. In re Russell, 647 F. Supp. 1044, 1047 (S.D. Tex. 1986).
58 Compare In re Chapman, 459 F. Supp. 2d 1024, 1027 (D. Haw. 2006) (suggesting that a complete lack of a risk of flight could rise to the level of a special circumstance) with Salerno v. United States, 878 F.2d 317, 318 (9th Cir. 1989) (“[The defendant] contends that because he is not a flight risk, he is entitled to bail . . . . That is not the criteria for release in an extradition case.”).
59 See supra note 50.
60 See United States v. Messina, 566 F. Supp. 740, 742 (E.D.N.Y. 1983) (suggesting that though a strong presumption against bail in international extradition cases exists, the courts have ignored the precedent and made the “granting of bail pending completion of the extradition proceedings . . . the rule rather than the exception” (quoting Beaulieu v. Hartigan, 430 F. Supp. 915, 916, 916 n.2 (D. Mass. 1977)).
61 See supra note 56 and accompanying text.
62 Roberto Iraola, The Federal Common Law of Bail in International Extradition Proceedings, 17 Ind. Int’l & Comp. L. Rev. 29, 45 (2007) (citations omitted).
63 Id. at 45-46.
64 See U.S. Dep’t of Justice, supra note 5, at 42.
65 See, e.g., In re Ghandtchi, 705 F.2d 1315 (11th Cir. 1983) (vacating the appeal of a magistrate’s bail order as moot where the extradition hearing was held and the party extradited before the circuit court could rule).
66 Wright v. Henkel, 190 U.S. 40 (1903).
67 See supra notes 64-65 and accompanying text.
68 In 1983, the House attempted to clarify the law governing bail in international extradition cases by making it similar to the Bail Reform Act, which bases the decision to admit bail on the party’s risk of flight and danger to the community. Nathaniel A. Persily, International Extradition and the Right to Bail, 34 Stan. J. Int’l L. 407, 436 (1998) (citing H.R. 2643, 98th Cong. (1983)). A Senate bill attempted to codify the special circumstances rule by requiring that “unusual cause” be shown to grant bail. United States v. Messina, 566 F. Supp. 740, 742 (E.D.N.Y. 1983) (citing S. 1437, 95th Cong. (1978)).
69 See supra notes 2-4 and accompanying text.
70 18 U.S.C. § 3184 (2006).
71 See supra notes 12-18 and accompanying text.
72 See supra notes 63-64 and accompanying text.
73 See supra notes 12-18 and accompanying text.
74 U.S. Const. art. IV.
75 U.S. Dep’t of Justice, supra note 5, at 1.
76 Id. at 1 n.4.
77 U.S. Const. art. II, § 2; Prasoprat v. Benov, 294 F. Supp. 2d 1165, 1168 (C.D. Cal. 2003).
78 This approach would preserve the Executive’s power with regards to international extradition proceedings which have “traditionally been entrusted to [their] broad discretion,” and which require a “heightened” need for discretionary flexibility as such proceedings “implicate the foreign policy interests of the United States.” Peroff v. Hylton, 563 F.2d 1099, 1102 (4th Cir. 1977). It would also keep courts from improperly infringing on the executive’s discretion in such cases. See, e.g., United States v. Taitz, 130 F.R.D. 442, 446-47 (S.D. Cal. 1990) (holding that a lack of a “diplomatic necessity for denying bail” in the case was a special circumstance).
79 See Vienna Convention on the Law of Treaties art. 9-23, May 23, 1969, 1155 U.N.T.S. 331 (setting out the required steps for countries to enter into a treaty agreement under the Vienna Convention).
80 See Vienna Convention on the Law of Treaties art. 9-23; 39-41, May 23, 1969, 1155 U.N.T.S. 331 (codifying the process for countries to establish and modify treaties under the Vienna Convention).
81 See In re Chapman, 459 F. Supp. 2d 1024, 1027 (D. Haw. 2006).
82 See United States v. Messina, 566 F. Supp. 740, 742 (E.D.N.Y. 1983) (noting the erosion of the special circumstances rule by stating that the rule “has been a less stringent standard in practice than in theory”).
83 Cf. 18 U.S.C. § 3142 (2006) (creating a detailed procedural scheme for making bail determinations in domestic criminal cases).
84 Cf. 18 U.S.C. § 3142(g) (articulating specific factors to be considered in deciding whether or not to release or detain a defendant accused of a crime against the United States pending trial).
85 See supra notes 15-18 and accompanying text.
86 See supra note 17 and accompanying text.
87 Shapiro v. Ferrandina, 355 F. Supp. 563, 571 (S.D.N.Y. 1973), aff’d, 478 F.2d 894 (2d Cir. 1973), cert. dismissed, 414 U.S. 884 (1973).
88 United States v. Salerno, 481 U.S. 739, 750-51, 755 (1987).
89 See 18 U.S.C. § 3184 (2006) (codifying that extradition proceedings are instituted when a foreign government charges a person with a crime via a “complaint made under oath” and that no additional process (besides the extradition hearing) be provided to the extraditee).
90 Compare In re Nacif-Borge, 829 F. Supp. 1210 (D. Nev. 1993) (considering bail in international extradition cases under the special circumstances standard) with United States v. Stenger, 536 F. Supp. 2d 1022 (S.D. Iowa 2008) (considering bail in a domestic criminal case under 18 U.S.C. § 3142).
91 Cf. 18 U.S.C. § 3142(g). Some courts have held that under the current special circumstances standard that 18 U.S.C. § 3142(g) is instructive to judges in rendering bail decisions in international extradition proceedings. E.g., In re Santos, 473 F. Supp. 2d 1030, 1040-41 (C.D. Cal. 2006).
92 See Hall, supra note 16, at 614. “Risk of flight is the most crucial factor (in the bail decision) in protecting the national interests in extradition. So long as the accused poses no threat to the community, the national interest [is] fully served if the accused does not abscond. That the accused presents ‘special circumstances’ adds nothing to [the] protection of these interests.” Id. This suggests that the United States’ interests could be sufficiently protected by requiring only that a defendant show that they pose a minimal flight risk if released on bail.

Chris Kelly is a third year student at Northern Illinois College of Law and a J.D. Candidate, May 2009. He holds a B.S. in finance from Arizona State University, obtained May 2006. Mr. Kelly is the Editor-in-Chief of the Northern Illinois University Law Review.

 
 
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