No Easy Decision: The legal, political, and foreign policy dynamics of extraditing Amanda Knox

Tweet

Amanda Knox’s journey through the Italian legal system has received no shortage of media attention in the United States.  Though Knox faced a murder trial in Italy, the Italian legal system continues to face a trial of its own in the American media and in the court of public opinion.  A Google search for “Italian legal system” yields more results on the first page about Amanda Knox than it does informational resources about the legal system in Italy.

More than six years have passed since Knox was arrested and charged in connection with the murder of her roommate, Meredith Kercher.  Despite Knox’s acquittal in 2011 and subsequent return to the United States, the possibility of one day returning to an Italian prison lingers.  If the United States eventually receives a formal extradition request from Italy, the State Department faces an unenviable decision that is legally and politically complicated.

The legal battle had finally ended, and Knox could move on to the next chapter of her life, right?  Not so fast.

Amanda Knox and her ex-boyfriend, Raffaele Sollecito, were first convicted for Kercher’s murder on December 4, 2009.  Two years later, on October 3, 2011, an Italian appeals court overturned the convictions, and Knox returned home to the United States.  The legal battle had finally ended, and Knox could move on to the next chapter of her life, right?  Not so fast.

To fully understand the many differences in Italian and American criminal procedure, one should refer to a treatise on comparative law.  In the United States, the Fifth Amendment prohibits double jeopardy; in Italy, there is no such protection.  Italian prosecutors are free to appeal not guilty verdicts, and a successful appeal could yield an entirely new trial.  Jury composition is also much different: the Italian jury that convicted Knox was comprised of two professional judges and six lay judges.  In Italy, there is no analogue to the twelve-person “jury of one’s peers.”

Still another difference is the role of the Italian appellate courts.  After her initial conviction in 2009, Knox appealed to the intermediate appellate court (the Corte d’Assise d’Appello).  Unlike its United States equivalent (the Court of Appeals), the Corte d’Assise d’Appello has the authority to conduct an entirely new trial.  It was here, following a second trial, that Knox was acquitted in 2011.

Knox returned home, but prosecutors appealed the acquittal to Italy’s highest court: the Court of Cassation.  On March 26, 2013, the Court of Cassation reversed the acquittal and remanded the case for retrial.  Last September, the retrial began in the lower appeals court.  On January 30, 2014, the retrial resulted in a guilty verdict.  Knox—who was not present for the retrial—was sentenced to over twenty-eight years; Sollecito was sentenced to twenty-five years.

Even with the latest guilty verdict, the legal battle in Italy continues.  Though Knox remains in the United States, her defense team has appealed to the Court of Cassation.  Until Italy’s highest court affirms the conviction, the case is not yet ripe for an extradition request.

The United States’ extradition treaty with Italy is a bilateral agreement wherein each nation agrees to extradite persons “charged with or found guilty of an extraditable offense.”

When the United States has an extradition treaty with a foreign nation, the treaty is the primary source of law governing extradition requests.  However, the United States Code also provides a statutory basis for processing extradition requests (see Title 18, Part II, Chapter 209).  First, 18 U.S.C. § 3181(a) recognizes the existence of such treaties and provides that the rules expressed in Chapter 209 apply only to the extent that the treaty is in force.  Secondly, 18 U.S.C. § 3181(b) is the statutory authority for the United States to extradite—even in the absence of a treaty—“persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries ….”

To date, the United States has entered into extradition treaties (pdf) with over one hundred nations.  The United States’ extradition treaty with Italy (pdf), which was signed in Rome by Ronald Reagan in 1983, is a bilateral agreement wherein each nation agrees to extradite persons “charged with or found guilty of an extraditable offense.”  An “extraditable offense” is one that is punishable in both nations by a term of imprisonment of at least one year (see Article II).

In the treaty with Italy, double jeopardy is not a basis for denying an extradition request.

The treaty lists several mandatory grounds for denying an extradition request.  Article V requires the requested nation to refuse requests where the underlying offenses are political or military in nature.  Article VIII requires the requested nation to deny extradition requests when the requesting nation’s applicable statute of limitations has lapsed.  Finally, Article IX requires denial of the request where the offense is punishable by death in the requesting nation but not the requested nation.

In the treaty with Italy, double jeopardy is not a basis for denying an extradition request.  Per Article VI, “[e]xtradition shall not be granted when the person sought has been convicted, acquitted, or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested” (emphasis added).  This requires denial of the extradition request only when the individual has been “in jeopardy” in the requested nation (i.e., the United States).  It does not mandate denials where the individual has previously been “in jeopardy” in the requesting nation (i.e., Italy).  Thus, should the United States eventually decide not to honor a request to extradite Knox, such denial would not be justified by Article VI.

If the judge is satisfied that the person sought should be extradited, the judge “enters an order of extraditability and certifies the record to the Secretary of State, who decides whether to surrender the fugitive to the requesting government.”

The treaty with Italy directs that “[r]equests for extradition shall be made through the diplomatic channel.”  Thus, a request from Italy would initially be directed to the Department of State.  The request is then forwarded to the Criminal Division’s Office of International Affairs.  Sufficient requests are then passed on to an Assistant United States Attorney, who seeks an arrest warrant from a federal magistrate or district court judge.  The individual sought is entitled to a hearing, and the judge will consider “evidence of criminality.”  If the judge “deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b), he shall certify the same … to the Secretary of State, that a warrant may issue … for the surrender of [the individual sought] ….”

The evidentiary hearing is not an occasion to re-litigate the case in the United States.  Rather, a U.S. judge conducting such a hearing for Amanda Knox would likely limit the scope of the hearing to ensuring that the extradition request satisfies the content requirements of the treaty (see Article X).  Article X requires an extradition request to include (1) information about the identity of the person sought; (2) a brief statement of the facts; (3) text of the laws describing the particular offense; (4) text of the laws describing punishment; and (5) text of the laws regarding the statute of limitations.  There are also additional content requirements depending on whether the person sought has already been convicted or if the person sought was convicted in absentia, both of which would apply to Knox.

If the judge is satisfied that the person sought should be extradited, the judge “enters an order of extraditability and certifies the record to the Secretary of State, who decides whether to surrender the fugitive to the requesting government.”

The United States’ interest in reciprocity and maintaining credibility in the international community cannot be understated.

There are a number of reasons the United States might honor an Italian request to extradite Amanda Knox.  The United States’ interest in reciprocity and maintaining credibility in the international community cannot be understated.  Lack of reciprocity—or worse, failure to obey a negotiated and binding treaty—could undermine U.S. efforts to extradite the Snowdens and Polanskis of the world.  If Italy submits an extradition request that complies with the technical requirements of the treaty, then the decision becomes fairly straightforward from a legal standpoint.

Harvard Law Professor Alan Dershowitz—though he questions whether Italy will actually submit a request—believes that the U.S. should (and would) extradite Knox.  Specifically, Dershowitz cites the legitimacy of the Italian legal system and the existence of an extradition treaty.  Interestingly, Dershowitz also opines that the evidence against Knox is more compelling than most American media outlets portray: “It’s a case of the kind that would have resulted probably in a conviction in most courts in America.”

Despite the express statutory procedure for assessing the validity of extradition requests, the Secretary of State, who possesses considerable discretion over the matter, is the final gatekeeper.

There is also the possibility that the United States would not honor an Italian request to extradite Knox.  Despite the express statutory procedure for assessing the validity of extradition requests, the Secretary of State, who possesses considerable discretion over the matter, is the final gatekeeper.

One option would be to simply ignore the request.  It would not be the first time the United States has ignored an extradition request from Italy.  According to an NPR report, the U.S. simply refused to comply with an extradition request for Robert Seldon Lady, who was convicted for his role in the extraordinary rendition of a terror suspect in Italy.  Of course, ignoring another Italian request—especially one in a high profile case that commands significant international attention—could strain foreign relations with Italy.

Another option  is to deny the request on purely technical grounds.  As noted in the NPR report, China did just that in the Edward Snowden matter.  Despite the existence of an extradition treaty between China and the United States, China rebuffed the U.S. effort by relying on various procedural flaws in the request.  The rest is history: Snowden ended up in Russia, which does not have an extradition treaty with the United States.

Another possibility is that Italy never requests Knox’s extradition.

Finally, another possibility is that Italy never requests Knox’s extradition.  It may seem curious that the Italian government would expend significant resources on multiple, lengthy prosecutions for it not to culminate in an extradition request.  However, there is a historical precedent for Italy abstaining from submitting a request.  For instance, in the same incident that led to Robert Seldon Lady’s conviction and subsequent extradition request, over twenty other CIA operatives were also charged and convicted.  Due to apparent pressure from the United States, the Italian government did not pursue formal extradition requests for the other CIA operatives.

If Italy opts not to pursue a formal extradition, Knox would still be subject to an INTERPOL “Red Notice,” akin to an international arrest warrant.  This result would effectively confine Knox to the United States for life.  As Dershowitz observed, “… Interpol will put a warrant out for her and, if she travels anywhere outside the United States, she’ll be immediately arrested and turned over to Italy.”

Ultimately, the U.S. decision on whether to honor an extradition request may come down to the golden rule: “Treat others how you want to be treated.”

A decision on whether to extradite Amanda Knox is by no means imminent.  It is not clear that the question will even be asked.  For one, the verdict will not be final until affirmed by the Court of Cassation.  Even assuming the Court of Cassation upholds the guilty verdict—which is a bold assumption given the tumultuous appellate history of the Knox case—Italy would still have to submit a formal extradition request to the U.S. Department of State.

Still, the possibility looms that the Secretary of State could be faced with a foreign policy conundrum.  Failing to honor an extradition request that satisfies the treaty places the United States in a precarious position.  Protecting Amanda Knox could dilute the efficacy of over one hundred extradition treaties to which the U.S. is a party, thus jeopardizing future efforts to extradite key U.S. targets.  Ultimately, the U.S. decision on whether to honor an extradition request may come down to the golden rule: “Treat others how you want to be treated.”