On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by Clifford, J. Chief Justice Wilentz and Justices Pollock, O'hern, Garibaldi, and Stein join in this opinion. Justice Handler has filed a separate dissenting opinion.
This appeal implicates principles of rendition law. We granted certification, 122 N.J. 379 (1990), to determine whether defendant, who is serving a life sentence in a New Jersey prison, may be extradited to California to face the death penalty. We affirm the Appellate Division's order denying dismissal of the warrant of extradition and permitting defendant to be extradited to California. We conclude that under the circumstances of this case, the decision to extradite a prisoner is a matter of executive discretion, and that defendant fails to overcome the strong presumption of validity in favor of the warrant of extradition granted by the Governor.
In November 1980, New Jersey authorities arrested defendant, Malcolm Robbins, for the sexually-motivated murder of nine-year-old E.B., a crime to which defendant later confessed. On August 7, 1981, Robbins pled guilty to charges of murder, kidnapping, aggravated sexual assault, and other offenses arising from that murder, for which the court ssentenced him to an aggregate term of life imprisonment with a forty-year parole disqualifier. Robbins is currently incarcerated in New Jersey State Prison at Trenton.
At the time defendant confessed to the murder of E.B., he also admitted to several other offenses, including the sodomizing and choking to death of a young boy in California. The details of that crime met the description of the June 1980 murder of C.F., a six-year-old boy whose skeletal remains had been found on the campus of the University of California at Santa Barbara. Two officers from the Santa Barbara Sheriff's Department came to New Jersey, where Robbins was incarcerated awaiting trial, to question him about that California murder. When shown a picture of C.F., Robbins admitted, "He's the little boy that I killed."
In November 1981, after defendant had already begun serving his New Jersey life sentence, he was transferred from the New Jersey State Prison at Trenton to California to stand trial for the kidnapping and murder of C.F. A California jury found Robbins guilty of both charges, and the court ssentenced him to death. California officials then returned Robbins to New Jersey to continue serving his life sentence here while his appeal from the California conviction and sentence was pending.
The California Supreme Court affirmed defendant's conviction and sentence, People v. Robbins, 45 Cal. 3d 867, 755 P.2d 355, 248 Cal. Rptr. 172 (1988), and the United States Supreme Court denied certiorari in January 1989. Robbins v. California, 488 U.S. 1034, 102 L. Ed. 2d 981. Shortly thereafter, California Governor George Deukmejian requested that New Jersey extradite Robbins to allow California to carry out the death sentence. On April 11, 1989, then-Governor Thomas Kean signed the warrant of extradition.
Robbins moved to dismiss the warrant on the grounds that neither the Interstate Agreement on Detainers nor the Uniform Criminal Extradition Act provides for his extradition to California before he completes his New Jersey sentence. The trial court denied defendant's motion, and the Appellate Division affirmed in an unreported opinion. In letting stand the order of extradition the Appellate Division held that whether New Jersey's
or California's sentence is the first to be served "is not a matter of interpretation of [the Interstate Agreement on Detainers or the Uniform Criminal Extradition Act]" but rather "a matter of comity between jurisdictions."
Initially we consider Robbins' claim that general principles of extradition law do not contemplate his transfer to California under the circumstances. We acknowledge at the outset that some commentators, beginning with J. Scott, The Law of Interstate Rendition, Erroneously Referred to as Interstate Extradition § 1 at 1-5 (1917), have recommended the use of "rendition" for reference to interstate practice and "extradition" for international practice; but at the risk of perpetuating an error that has taken on a life of its own, we use the terms interchangeably in this opinion.
Our analysis begins with the extradition clause of the United States Constitution. "To prevent the states from serving, unwittingly or otherwise, as havens for fugitives from sister states," In re Basto, 108 N.J. 480, 485 (1987), that clause provides:
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
[U.S. Const. art. IV, § 2, cl. 2.]
The extradition clause "served important national objectives of a newly developing country striving to foster national unity." Michigan v. Doran, 439 U.S. 282, 288, 58 L. Ed. 2d 521, 527 (1978). Because the clause was thought not to be self-executing, Congress enacted the Extradition Act of 1793, 1 Stat. 302, to carry its substance into effect. Roberts v. Reilly, 116 U.S. 80, 94, 29 L. Ed. 544, 548 (1885). The Federal Rendition Act (the Rendition Act), 18
U.S.C. §§ 3181 to 3195, the modern counterpart of the Extradition Act, states in relevant part:
Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear.
Section 3182's repeated reference to the "executive authority" illustrates the central role that Congress intended governors to play in matters of interstate rendition. At issue here is the extent of the deference to be given a governor's actions in carrying out that central role.
In Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L. Ed. 717 (1861), the Supreme Court held that the extradition clause and the Rendition Act impose on governors of asylum states a mandatory duty to deliver up fugitives on proper demand. For many years, that duty was essentially nothing more than a moral obligation, because Dennison also held that the federal courts had no authority to compel extradition. See Comment, Interstate Rendition: Executive Practices and the Effects of Discretion, 66 Yale L.J. 97, 98-99 (1956). In 1987, however, the Supreme Court overruled Dennison and held that federal courts have the power to compel rendition. See Puerto Rico v. Branstad, 483 U.S. 219, 97 L. Ed. 2d 187.
Despite Branstad's restriction on gubernatorial power, rendition remains discretionary if the fugitive demanded is incarcerated in the asylum state for a violation of that state's laws. See Taylor v. Tainter, 83 U.S. (16 Wall.) 366, 371, 21 L. Ed. 287, 290 (1873); Note, The Detainer: A Problem in
Interstate Criminal Administration, 48 Colum. L. Rev. 1190, 1200-06 (1948). In that situation, the governor's duty to extradite does not mature until punishment in the asylum state has been completed. See Nelson v. George, 399 U.S. 224, 229 n.6, 26 L. Ed. 2d 578, 583 n.6 (1970). Before the duty matures, "the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy * * * before the other court shall attempt to take it for its purpose." Ponzi v. Fessenden, 258 U.S. 254, 260, 66 L. Ed. 607, 611 (1921). As a matter of comity, the governor of the asylum state may choose to extradite such prisoners, and a prisoner "may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it." Ibid.
Robbins had been ssentenced and was incarcerated in a New Jersey prison at the time the Governor of California demanded his extradition, making this case one in which the mandatory duty to extradite has not yet matured. In that situation, the majority rule, which we adopt, is that
the executive authority of the asylum state may withhold a rendition request until the fugitive has completed a prison sentence imposed by a court of the asylum state, but this is a matter of executive discretion and not a personal right of the fugitive. * * * It is usually held that the executive of the asylum state may waive the right of that state to retain the prisoner and may surrender him to ...