Post Extradition Considerations—Limitations on Further Prosecution

Every extradition treaty limits extradition to certain offenses. As a corollary, all extradition treaties restrict prosecution or punishment of the fugitive to the offense for which extradition was granted unless (1) an offense was committed after the fugitive's extradition or (2) the fugitive remains in the jurisdiction that requested extradition after expiration of a reasonable time (generally specified in the extradition treaty itself) following acquittal or completion of his or her punishment. This limitation is referred to as the Rule of Specialty. Federal prosecutors who wish to proceed against an extradited person on charges other than those for which extradition was granted must contact the Office of International Affairs (OIA) for guidance regarding the availability of a waiver of the Rule by the sending State.

Frequently, defendants who have been extradited to the United States attempt to dismiss or limit the government's case against them by invoking the Rule of Specialty. There is a split in the courts on whether the defendant has standing to raise specialty: some courts hold that only a party to the Treaty (i.e., the sending State) may complain about an alleged violation of the specialty provision, other courts allow the defendant to raise the issue on his or her own behalf, and still other courts take a middle position and allow the defendant to raise the issue if it is likely that the sending State would complain as well. Whenever a defendant raises a specialty claim, the prosecutor should contact OIA for assistance in responding.

OIA attorneys are subject-matter experts on extradition, and OIA is responsible for ensuring that the government’s position in such cases remains consistent.  Federal prosecutors should consult with OIA regarding issues raised by a fugitive after return to the United States regarding his or her extradition.

[updated April 2018]