“Whenever there is a treaty or convention for extradition between the United States and any foreign government, any justice or judge of the United States may issue his warrant for the apprehension of the person so charged.”
— 18 U.S.C. 3184
“The investigation will take us wherever the facts lead.”
— Edward Grace, department chief
U.S. Fish & Wildlife Service
News programs and social media were particularly focused in the last week on the killing of a lion in Zimbabwe named Cecil and the reaction of locals and Americans to the news that the hunter who killed the animal was an American dentist. Much of the discussion centered on the preservation of endangered species, the disparate reaction to the killing of different animals, and questions about proportionality of the response.
Those questions are all interesting and worthwhile, but the situation also raises several pressing legal questions surrounding the issues of extradition and prosecution in the U.S. for actions that occurred elsewhere. If we presume that the hunt was, itself, illegal (something that the government of Zimbabwe alleges), then those questions take on a more pressing nature. Indeed, local authorities in Zimbabwe have said that they are looking for the American hunter.
Extradition is the act of returning an alleged criminal from the location where he is found or arrested to the location where he is being prosecuted. Depending on the circumstances of the offense and whether the extradition is interstate or international, extradition can be an extensive process. Between states, extradition is initiated by a local law enforcement agency or court issuing a warrant. A formal request to the home state is then made by the governor of the state seeking extradition.
International extraditions are far more complicated and politically charged, however. International extraditions are a creature of treaty agreements between nations about how they will behave when either one of them wants a person currently being held by the other. The U.S. has more than 100 extradition treaties with foreign nations, including one with Zimbabwe.
The treaty between the U.S. and Zimbabwe is relatively new, having been signed just 15 years ago. Under its terms, and those of nearly every treaty like it, a foreign nation seeking extradition of an American must first make a request to the Secretary of State’s office. If the Secretary of State wishes, he or she forwards the request to the U.S. Attorney’s Office and they commence an action in the appropriate federal court. Under United States Code chapter 18, section 3184, the federal court reviews the claim and, if it finds the claim valid, certifies the same back to the Secretary of State and issues a warrant for the person’s arrest.
The court does not review the laws or the legal system of the foreign nation. That means that the considerations about whether it is wise or appropriate to extradite an American to a nation with a poor human rights record or corrupt judicial system is a political one. Indeed, if the U.S. refuses to extradite, that too is a political matter. The extradition treaties have no enforcement mechanism and a nation like Zimbabwe would have little political, economic or military clout to pressure the U.S. into compliance.
Although the guide, Theo Bronkhorst, has been charged in Zimbabwe (where the unlawful killing of a lion can result in a prison sentence of up to 10 years), the American dentist has not been. If Zimbabwe does not charge him or does not seek extradition, any prosecution in the United States would be very difficult. That’s because the hunt did not occur in the United States. The Lacey Act has been used to prosecute persons for the illegal importation of animal parts and animal remains, including animal trophies, but the lion’s remains never left Zimbabwe. Even if they had, the basic question of whether the American hunter had any knowledge of the illegality of the hunt would still have to be answered.
Questions about the appropriateness of extradition run both ways. Several European countries have refused to extradite criminals to the U.S. without assurances that American authorities will not seek the death penalty. Indeed, foreign extraditions are among the few areas where the executive, legislative and judicial branches all play distinct roles.