Chapter 9: Interstate Extradition and the Career of Constructive Presence

The Constitution provides that

This provision had its origin in practices of intercolonial comity and a subsequent clause in the Articles of Confederation. Not self-executing, it was followed in 1793 by a more detailed federal statute specifying that the demand must be accompanied by an indictment or affidavit charging the particular crime. Except for a slight emendation a few years later, this statute has remained in force unchanged down to the present day.¹ The American institution of interstate extradition has thus completed almost two centuries of practical operation, during which time it has played an important role in the federal system, reflecting over the years changing conceptions of the proper relation of the states to each other and to the central government. During this period every point about which there could be a dispute has been argued out between the states or in the courts, and a working system of extradition evolved which corresponded to new economic and social realities. The development of doctrines such as constructive presence (where the fugitive was never physically in the demanding state), a strategy of hot pursuit (of fugitives across state lines), and the federal flight-to-avoid-prosecution statute are related to novel and complex methods of business fraud and general interstate crime, modern means of transportation, especially the automobile, and federal efforts to by-pass Constitutional requirements felt to impede the efficient administration of justice. But although the mechanics of the extradition system have now been rationalized into a uniform law to which almost every state has subscribed, governors still retain the right they have had from the beginning not to be coerced into ordering extradition, thus retaining an ancient remnant of sanctuary in the law.²