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Extradition Procedure – Transfer to and from Out-of-State Prison

State ex rel. Bradley Jones v. Smith, 2002 WI App 90, PFR filed 4/19/02

For Jones: Jeffrey W. Jensen

Issue: Whether a prisoner is entitled to discharge of sentence if transported through another state without use of the Uniform Criminal Extradition Act, § 976.03.


¶5                        According to Jones and Morey, the government is required to use the extradition process whenever and wherever prisoners are transported through noncontracting states on their way to incarceration in a contracting state.  This is patently absurd with no basis in the law of extradition or Wis. Stat. § 301.21.

¶6                        Wisconsin Stat. § 301.21(1m)(a) clearly authorizes the department to transfer and confine prisoners in another state.  This grant of authority necessarily implies the authority to transfer a Wisconsin prisoner through a sister state while en route to the contracting state.  We note the adage that if the exercise of a power is not expressly granted, any reasonable doubt as to the existence of an implied power should be resolved against the department.  See DOR v. Hogan, 198 Wis. 2d 792, 816, 543 N.W.2d 825 (Ct. App. 1995).  In this case, there can be no reasonable doubt that the grant of authority in § 301.21(1m)(a) would be largely ineffectual if it did not include the implied authority of the department to transfer Wisconsin prisoners through noncontracting states.  Id. (agencies may have powers that are necessarily implied from the applicable statutes).

¶7                        In addition, the transportation of a Wisconsin prisoner through a state does not impinge on the sovereignty of that state.  Therefore, as we explain below, no factual predicates exist to form the basis of an extradition proceeding.

The court adds that a defect in extradition procedure — even removal accomplished by force — doesn’t cause a loss of power to try or punish the prisoner, ¶12, citing State ex rel. Niederer v. Cady, 72 Wis. 2d 311, 316, 240 N.W.2d 626 (1976).

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