618. Bail Hearing

The Bail Reform Act, 18 U.S.C. § 3141 et seq., and the attendant presumption in favor of bail for persons facing trial, apply only to criminal defendants and are inapplicable to fugitives facing extradition proceedings. The standards for the release of fugitives in extradition matters are instead found in case law from the Supreme Court and the lower courts. Because of the potential harm to the country's international relations that could result from flight, there is a presumption against bail in international extradition cases, and only "special circumstances" justify the release of a fugitive on bail. Wright v. Henkel, 190 U.S. 40 (1903). Absence of risk of flight is not a special circumstance. Prosecutors should vigorously oppose bail for fugitives on the ground that their release jeopardizes the ability of the United States to meet its obligation under international law to satisfy the requirements of the treaty under which the fugitive's extradition was requested. The Office of International Affairs (OIA) can provide a draft memorandum in opposition to bail. Should the judge or magistrate judge grant bail, the prosecutor should notify OIA immediately.

[cited in Criminal Resource Manual 615]