In following the Meredith Kercher case, it’s not a question I looked into in detail, but I have always assumed that a hypothetical extradition of Amanda Knox from the United States to Italy would be unlikely. She would have hometown advantage at her extradition hearing and there would be all kinds of loopholes for a fancy or ambitious lawyer to exploit. The most those who believe Knox to be guilty could realistically hope for was the prospect of her being finally declared to be so once the Italian legal process had, at length, reached its conclusion.
When, two days ago, Knox and her former boyfriend Raffaelle Sollecitio saw their successful 2011 appeals overturned, much of the media coverage reflected this assumption. Whatever happened, Knox would be safe from the clutches of the Italians, just so long as kept her passport in a firmly-locked drawer. But then I noticed that the BBC had modified its coverage. At first, it thought that extradition was “unlikely”. Then its likelihood was “unclear”. Then it decided that “Italy could seek her extradition” and, finally, that “she could be extradited“. Elsewhere, American lawyers had started to stick their talking heads above the parapet. As with much discussion about the case, their views were radically polarised. “She is never going back to prison!” chirps one. “I can’t see how she could possibly resist extradition!” thunders another. I figure that, where it is hard to find anyone talking to the middle ground, it is probably less likely that the reality is some subtle mixture of the two, and more likely that one side or the other is talking out of its bottom.
As you might expect, the US has an extradition treaty with Italy, so the normal course of things is that either country asks for a suspect to be handed over and it just happens. But what various commentators have suggested is that this can’t happen with Knox, because she has already been tried for the crime. Since the the Fifth Amendment to the US constitution outlaws double jeopardy, it would be unconstitutional to extradite her to face a further trial. However, as the law stands (although here we must add the caveat that it doesn’t always stand still), this does not seem to be correct. The authority for that is a 1974 ruling by the Court of Appeals, where the potential extraditee was in a pretty similar situation to Knox, except it was a drugs offence and it was Canada. And he was extradited. The court ruled that what it was obliged to consider was whether there was a conviction according to Canadian law, and not whether the Canadian courts were following the US constitution.
It might be pointed out – indeed, it has been, by New York attorney Sean Casey – that the treaty between the US and Italy contains a specific clause regarding non bis in idem, the international law equivalent of double jeopardy. This forbids extradition of anyone previously “convicted, acquitted or pardoned, or [having] served the sentence imposed, by the Requested Party”. The trouble with this is the meaning of “Requested Party”. If you expect this to mean “the country to whom the extradition request has been made”, then you would be spot on. So, in Knox’s case, the clause simply means that she could not be extradited in the case that she had already been convicted (etc) of the crime in the US. That fairly obvious interpretation can be seen as recently as last year in a case before the California District Court. Advice if you are in the New York area: make sure any attorney you hire can read.
A further ruling of the Court of Appeals says that judges hearing extradition cases are not permitted to inquire into the conduct of the case according to the law of the country requesting extradition. So, the kind of hearing that some of Knox’s supporters might hope for – one where extradition is denied on the grounds that the Italian authorities don’t have a clue – ought not to be possible. And it also seems like a vain hope that the State Department will intervene to prevent a case going ahead. They are bound by the treaty. There may be cases in which they would intervene, but Knox isn’t suspected of a political crime and there is no issue of national security involved in her case.
What could happen in theory is that Knox is able to argue her case all the way and have previous case law swept into history. If she’s able to take it that far, then maybe all bets are off. But a ruling in her favour seems to me unlikely just because it could leave the United States practically unable to maintain extradition treaties with a whole raft of counties, including many of its closest allies. It wouldn’t just affect a few isolated cases, particularly in the case of double jeopardy. If there’s constitutional protection against double jeopardy, then that ought to apply not only where there is an immediate prospect of it happening, but also in any case where someone risks being extradited to a country where there is any possibility of it happening. And how many countries will be willing to reshape their criminal justice system according to US dictats or allow foreign scrutiny of their judicial processes?