Extradition Treaty with Colombia

Attorney General Alberto Gonzales is visiting Colombia, marking the first visit by an American Attorney General to Bogota in nearly five years.^[1] As we showed last Friday, some Colombian senators are not very pleased with the extradition relationship currently in place. More than 350 Colombians have been extradited to the United States since President Alvaro Uribe came to power in 2002.^[2] By comparison, only roughly 50 suspects had been extradited to the United States between 1992 and 2000.^[3]

Attorney General Gonzales’ visit comes as some members of the Colombian Supreme Court expressed concern that the United States was, in some cases, failing to respect the terms of the bilateral extradition treaty.^[4] The maximum sentence for any crime in Colombia is forty years, but at least one extradited Colombian was sentenced to life without parole in the U.S.^[5]

This actually brings up an interesting issue. There seems to be no actual text in the treaty itself that provides such assurances. It is true that in some instances, the United States government has provided assurances to Colombia that a defendant would not be put to death or sentenced to life in prison, only to have the district court judge sentence the defendant to life in prison.^[6]

What is at issue here is the “international principle of specialty,” which holds that an extradited defendant may not be tried for a crime not enumerated in the extradition treaty, and only for the offence with which he is charged in the proceedings for his extradition.^[7] Indeed, the extradition treaty between the US and Colombia has a section devoted to the rule of specialty, which states that a person extradited under the treaty cannot be detained, tried, or punished for an offense other than that for which extradition has been granted.^[8] However, that is not, in itself, an assurance that the punishment must be same.

The theory that the punishment should be the same is based on international comity, which suggests that the principle of specialty “generally requires a country seeking extradition to adhere to any limitations placed on prosecution by the surrendering country.”^[9] As the court in Baez, cited below, notes “courts should temper their discretion in sentencing an extradited defendant with deference to the substantive assurances made by the United States to an extraditing nation.”^[10] Doing so can “allow the United States to secure the future extradition of other individuals because foreign nations would observe that the limitations they negotiated with the Executive branch in respect to the prosecution of their extradited citizens are being honored.”^[11]

The discontent of some Colombian senators is a direct result of the perceived dishonoring of the assurances, even if, as the court noted in Baez, the court may not have abused its discretion.^[12] In Baez, the executive authority did request the reduction in sentence, but the district court suggested that it could ignore the consequences of an extradition agreement between Colombia and the United States merely “because the Judiciary is a branch of our tripartite government independent of the Executive branch.”^[13] Instead, a court should pay close heed to the agreements, but it is not obligated to follow them.^[14] It would have been helpful if the Court of Appeals had explained why, after explaining how important it is to preserve international comity, a court is not obligated to heed the agreements, but it did not do so.

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[1] Kim Housego, U.S. Vows to Defeat Colombia Traffickers, The Ledger Online, Aug. 24, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] See United States v. Baez, 349 F.3d 90, 92 (2d Cir. 2003) (defendant extradited from Colombia based on an assurance found in Diplomatic Note No. 1206 that the United States executive authority “’will not seek a penalty of life imprisonment at the sentencing proceedings in this case. [Furthermore,] should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against [the defendant,] the United States executive authority will take appropriate action to formally request that the court commute such sentence to a term of years.’” The defendant was nonetheless sentenced to life imprisonment.).
[7] United States v. Rauscher, 119 U.S. 407, 430 (1886). (not available online)
[8] Extradition Treaty, Sep. 14, 1979, U.S.-Colom,, art. 15, para. 1, S. Treaty Doc. No. 97-8 (1981).
[9] Baez at 92, (citing United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994) (not available online)).
[10] Id. at 93.
[11] Id.
[12] Id.
[13] Id.
[14] Id.