A Look at How Criminal Extradition Works in Indiana

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Understanding How Extradition Works in Indiana

Extradition is a word that is often tossed around by the general public, but all too often, many don’t truly understand what it means, how it works, and how it’s enforced in the criminal defense world. In this blog the Indianapolis Criminal Defense Attorneys at Banks & Brower will address how extradition works and how it plays out in a typical criminal case.
Extradition, in its most simplistic form, is a legal mechanism that forces a defendant to answer for a crime while in custody in one jurisdiction while they are being charged in a separate jurisdiction (by way of another county, state, or other country for that matter). For example, a defendant is arrested on a criminal warrant out of Indiana while he fled to California. The question then becomes, what happens now that he is in custody in California, how long can he remain in custody there, how does he get to Indiana, and/or what happens if Indiana doesn’t pay to transport him back?

Indiana Code 35-33-10-3

Indiana Code 35-33-10-3 is the controlling statute for extraditions, and it follows the Uniform Criminal Extradition Act. Obviously, should that defendant still reside within that host state, clearly extradition proceedings aren’t necessary. However, should that defendant have fled to another state and has been picked up on the host state’s open warrant, the only way that the defendant will be returned to the host state is through the extradition process? So how does that process work?


An extradition proceeding begins formally when a defendant has been charged with a crime through an indictment and a warrant has been issued for their arrest in the host/receiving state. The charging information must state that the defendant was in the host state at the time of the commission of the alleged crime and thereafter fled. Furthermore, the indictment must be presented to a magistrate of the receiving/new state from the demanding/host state which shows that there is probable cause to believe the defendant committed the offense or is on bail, probation, parole, or serving an executed (or suspended) sentence.

Generally speaking, however, most states will not extradite defendants on lower level crimes like misdemeanors or lower level felonies that are non-violent in nature. However, the host/demanding state reserves the right to extradite a defendant on any level crime so long as they are willing to pay to do so. Surprisingly, many don’t realize that the host/demanding state (and often times the local county where the charges are pending) have the responsibility to pay transporting the defendant back to their state! Given most state’s don’t want to pay a huge bill to transport a defendant (or don’t have the financial resources to do so), most state’s reserve the right to extradite for higher level felonies or for violent offenses.


While most extradition proceedings begin when a defendant has been arrested and is in custody in a new state on an open warrant from the host/demanding state, a host/demanding state also has the authority to issue a warrant for a defendant and have it served on him/her through the local sheriff’s office as well (assuming they know where to find the defendant). In that circumstance, the police department can actively go looking for the defendant in the community with the authority to arrest them and take them into custody awaiting the extradition hearing.
Before being taken into custody, the defendant must be given information as to why he is being detained, for what alleged crime, and that he/she has the right to counsel.


The defendant at the time of being taken into custody has a constitutional right to due process by and through a writ of habeas corpus to be taken before a judge in a formal hearing to answer and respond to the extradition request. At that hearing the judge will often present the defendant with a document explaining the extradition process, what the defendant has been charged with, which host state is requesting their attendance in court, and that the defendant has the right to challenge the extradition or waive their right to fight extradition (a lot of times defendant at this point just want to get back to the host/demanding state quickly to take care of the allegations more quickly). The judge will then, unless the offense is punishable by death or life imprisonment, will set bail by bond or require “sufficient sureties” ensuring the defendant will return to court on the extradition request if released. However, there are times when bail will not be issued. Should the defendant be released and fails to reappear, they can then be held without bond until the extradition proceedings are completed.

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  • FOR THOSE THAT WAIVE EXTRADITION: The rule of thumb is that a defendant can be held for thirty (30) days from the extradition hearing in the new state awaiting to see if the host/receiving state will pay to have them extradited. Interestingly, many think that if the host state refuses to pay to extradite them on the open warrant, at thirty (30) days the extradition rights of the host state terminate. Unfortunately, that isn’t true. In fact, the warrant will remain active indefinitely. Therefore, every time a defendant is in a place where a warrant search could be conducted randomly (or on purpose), they are subject to be taken into custody to answer for the open warrant and extradition request.
  • FOR THOSE THAT REFUSE EXTRADITION: This is almost always a terrible idea. Why? Because if you refuse extradition, the receiving state can keep you in custody for ninety (90) days from the date you refused extradition. And, the kicker….those ninety (90) days DO NOT COUNT AS CREDIT TIME. In other, more simpler terms, those ninety (90) days are lost days. They count for nothing. You can’t apply them towards your new case. Now, many say, “oh well, I’m facing a huge penalty back where the warrant is originating out of, so I’ll risk that they won’t come get me.” While that might randomly work on lower level misdemeanors and felonies, it won’t work on higher level crimes. Why? Because as a detective told me, “we  will wait for them to be released, and then we will immediately re-arrest them outside the courthouse on an open warrant. We will play the game as long as necessary for them to sign the waiver of extradition.

Obviously, then, it leads to reason that it almost always makes sense to take care of the pending charges in the host state so that a defendant can move on with their life. Otherwise, the risk of a thirty (30) day vacation behind bars is always possible at any minute.

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Simply put, the extradition process is a scary one. And, as anyone can see, it almost never pays to run and attempt to hide from criminal charges by fleeing to another state (especially on felony level crimes). Many times states will fork up the funds to track you down, pay for your arrest and ultimate extradition back to their state. And, we can assure you, after the county pays for that huge bill, the prosecutor and judge will be much harsher than perhaps they would have been if you surrendered willingly. As such, if you or a loved one find yourself in a situation where extradition is a possibility or has been started, give the experienced Indianapolis Criminal Lawyers at Banks & Brower, LLC a call today. As former prosecutors, we can help you through any of your criminal defense needs. Call us today at 317.870.0019 or email us at info@banksbrower.com. We are able to be reached 24/7/365.