Extradition is becoming a political football — here’s how the states can stop it

The Extradition Clause of the Constitution was designed so that one state’s criminal charges could not be nullified by another state’s politics. But last month’s ruling in the extradition dispute between Texas and Minnesota shows how easy it is to do exactly that.

A governor who wants to shield someone from a prosecution he objects to, or from a sister state whose politics he finds distasteful, may simply keep an extradition demand “under investigation” indefinitely. This is actually just one of many loopholes in extradition law increasingly likely to be exploited in today’s intensely polarized political climate. Texas, Minnesota and the rest of the states can and should seal these legal cracks before they cause further damage to interstate relations and the rule of law.

In late August, Judge Fernando Rodriguez Jr. declined to order the extradition of Christian Castro, an ICE officer wanted in Minnesota for allegedly shooting Julio Sosa-Celis through a closed door and then lying to investigators about the incident.

Rodriguez’s opinion highlighted a paradox in extradition law: In response to Minnesota’s lawsuit, Texas Gov. Greg Abbott (R) claimed he had not yet decided whether or not to reject Minnesota’s extradition demand — that he was still investigating it. Since Texas said it was still investigating, Rodriguez concluded, the case was not yet ripe for judicial intervention.

However, in a conspicuous footnote, the judge asserted that the answer to the question Texas purported to be investigating — whether as a legal matter Castro qualifies as a “fugitive” from Minnesota — is obviously yes.

So what are we waiting for? How long would this pointless “investigation” have to go on before the law considers it tantamount to a denial?

The answer, Rodriguez rightly points out, is that nobody knows. The Supreme Court has never taken up the issue. Nor will they have the opportunity to do so in Castro’s case, because the federal government recently indicted him , rendering the Minnesota-Texas lawsuit moot. Yet it remains the case that a governor might forestall an extradition indefinitely by claiming to have a perpetually open “investigation.”

My research identifies several other equally vulnerable loopholes in extradition doctrine. If a governor wanted to, he or she could exploit each of these, one at a time. Even if the Supreme Court were to reject each one in turn, the litigation could forestall an extradition for years, even decades.

The Castro case makes clear that this is not a matter of speculation. Americans are intensely polarized on what they consider criminal. Today’s extradition controversy concerned an ICE agent. We narrowly avoided another one in 2023, when Florida Gov. Ron Desantis (R) announced he would not extradite Donald Trump to face criminal charges in New York. (Trump ended up voluntarily surrendering himself .)

The next conflict might involve a father who took his child out of state for gender-affirming care. The one after that could be a doctor who performed an abortion she viewed as medically necessary but was prohibited under state law. How about a reviled former FBI director indicted on charges that are flimsy and obviously pretextual ?

Abbott showed that governors faced with extradition demands of this nature will not hesitate to exploit gaps in the law to block or delay an uncomfortable extradition. And as the examples above illustrate, extradition conflicts do not have an inherent left-right political valence.

It is in all of the states’ interests to fix this mess. Fortunately, they can.

The principle that states must extradite fugitives wanted for trial in other states comes from the Constitution’s Extradition Clause . But that clause, and the related federal Extradition Act , are notoriously vague. In the 1920s and 1930s, states joined together to fill in cracks that had emerged over the previous 150 years. They came up with the Uniform Criminal Extradition Act , a set of laws adopted by 48 states and still in place to this day.

One hundred years later, it is time for the states to take initiative once again. They may decide to seal up the loopholes and require extradition under all circumstances. Or they may decide to expressly permit governors to refuse extradition in extraordinary cases.

I prefer the latter resolution. I believe that preventing an escalation in political prosecutions is worth the cost of a few going free who deserve punishment. This was, incidentally, the state of affairs for almost 200 years before a landmark Supreme Court case in 1987 . And it is how the states decided to handle cases like extraterritorial crimes that fall outside of the Constitution’s Extradition Clause.

Still, I would happily accept the certainty of either option over the ambiguity we have now. Texas may enjoy its victory for the moment, but it will inevitably find itself in Minnesota’s shoes before long. It is in every state’s interest, and every American’s interest, to close the many loopholes in extradition law.

Ethan Lowens is a research fellow at the Quattrone Center for the Administration of Justice at the University of Pennsylvania Carey Law School.