[House Hearing, 108 Congress]
[From the U.S. Government Printing Office]




                               before the


                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION


                            OCTOBER 1, 2003


                           Serial No. 108-128


       Printed for the use of the Committee on Government Reform

  Available via the World Wide Web: http://www.gpo.gov/congress/house


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                     TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana                  HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut       TOM LANTOS, California
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana              CAROLYN B. MALONEY, New York
DOUG OSE, California                 DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky                  DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia               JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania    WM. LACY CLAY, Missouri
CHRIS CANNON, Utah                   DIANE E. WATSON, California
ADAM H. PUTNAM, Florida              STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia          CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee       LINDA T. SANCHEZ, California
JOHN SULLIVAN, Oklahoma              C.A. ``DUTCH'' RUPPERSBERGER, 
NATHAN DEAL, Georgia                     Maryland
CANDICE S. MILLER, Michigan          ELEANOR HOLMES NORTON, District of 
TIM MURPHY, Pennsylvania                 Columbia
MICHAEL R. TURNER, Ohio              JIM COOPER, Tennessee
JOHN R. CARTER, Texas                CHRIS BELL, Texas
WILLIAM J. JANKLOW, South Dakota                 ------
MARSHA BLACKBURN, Tennessee          BERNARD SANDERS, Vermont 

                       Peter Sirh, Staff Director
                 Melissa Wojciak, Deputy Staff Director
                      Rob Borden, Parliamentarian
                       Teresa Austin, Chief Clerk
              Philip M. Schiliro, Minority Staff Director

   Subcommittee on Criminal Justice, Drug Policy and Human Resources

                   MARK E. SOUDER, Indiana, Chairman
NATHAN DEAL, Georgia                 ELIJAH E. CUMMINGS, Maryland
JOHN M. McHUGH, New York             DANNY K. DAVIS, Illinois
JOHN L. MICA, Florida                WM. LACY CLAY, Missouri
DOUG OSE, California                 LINDA T. SANCHEZ, California
JO ANN DAVIS, Virginia               C.A. ``DUTCH'' RUPPERSBERGER, 
EDWARD L. SCHROCK, Virginia              Maryland
JOHN R. CARTER, Texas                ELEANOR HOLMES NORTON, District of 
MARSHA BLACKBURN, Tennessee              Columbia
                                     CHRIS BELL, Texas

                               Ex Officio

TOM DAVIS, Virginia                  HENRY A. WAXMAN, California
            J. Marc Wheat, Staff Director and Chief Counsel
        Nicholas Coleman, Professional Staff Member and Counsel
                         Nicole Garrett, Clerk
                     Tony Haywood, Minority Counsel

                            C O N T E N T S

Hearing held on October 1, 2003..................................     1
Statement of:
    Fox, James, district attorney, San Mateo County, CA, 
      representing the National District Attorneys Association; 
      Daniel J. Porter, district attorney, Gwinnett Judicial 
      Circuit, Georgia; and Teri March, widow of Los Angeles 
      County, CA Deputy Sheriff David March......................    64
    Witten, Samuel, Deputy Legal Advisor, Legal Bureau, U.S. 
      Department of State; and Bruce Swartz, Deputy Assistant 
      Attorney General, Criminal Division, U.S. Department of 
      Justice....................................................    12
Letters, statements, etc., submitted for the record by:
    Cummings, Hon. Elijah E., a Representative in Congress from 
      the State of Maryland, prepared statement of...............   111
    Deal, Hon. Nathan, a Representative in Congress from the 
      State of Georgia, prepared statement of....................     9
    Fox, James, district attorney, San Mateo County, CA, 
      representing the National District Attorneys Association, 
      prepared statement of......................................    66
    March, Teri, widow of Los Angeles County, CA Deputy Sheriff 
      David March, prepared statement of.........................    84
    Porter, Daniel J., district attorney, Gwinnett Judicial 
      Circuit, Georgia, prepared statement of....................    73
    Souder, Hon. Mark E., a Representative in Congress from the 
      State of Indiana, prepared statement of....................     4
    Swartz, Bruce, Deputy Assistant Attorney General, Criminal 
      Division, U.S. Department of Justice, prepared statement of    29
    Witten, Samuel, Deputy Legal Advisor, Legal Bureau, U.S. 
      Department of State, prepared statement of.................    15



                       WEDNESDAY, OCTOBER 1, 2003

                  House of Representatives,
 Subcommittee on Criminal Justice, Drug Policy and 
                                   Human Resources,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:10 a.m., in 
room 2154, Rayburn House Office Building, Hon. Mark E. Souder 
(chairman of the subcommittee) presiding.
    Present: Representatives Souder, Deal, Ose, Carter, Clay, 
Sanchez, Ruppersberger, Norton and Bell.
    Staff present: J. Marc Wheat, staff director and chief 
counsel; Nicholas Coleman, professional staff member and 
counsel; John Stanton, congressional fellow; Nicole Garrett, 
clerk; Tony Haywood, minority counsel; and Jean Gosa, minority 
assistant clerk.
    Mr. Souder. The hearing will come to order. Good morning, 
and thank you for coming.
    Today our subcommittee will address the status of the 
extradition process, an area of growing concern for lawmakers 
and law enforcement officials throughout the United States. The 
extradition process, which is governed by a series of bilateral 
treaties between the United States and various foreign 
countries, is intended to ensure that criminals cannot escape 
justice by fleeing from one country to another. Under an 
extradition treaty, the new host country will arrest the 
fugitive and return him to face trial. Recent developments have 
put strains on the extradition process, however, hindering or 
sometimes completely impeding the ability of law enforcement to 
bring criminal fugitives to justice.
    The most significant problem with the extradition process 
today is the conditions imposed by foreign nations on 
extradition. This problem is not new. For many decades now 
certain nations that ban the death penalty within their own 
borders have refused to extradite any criminal who can face the 
death penalty in the United States. Other countries refuse to 
extradite any fugitive who is convicted in absentia. 
Prosecutors in the United States have generally dealt with this 
problem by agreeing to seek life imprisonment instead of the 
death penalty, or by agreeing to hold a retrial.
    In October 2001, however, the Mexican Supreme Court issued 
a decision banning the extradition of anyone facing life 
imprisonment without the possibility of parole on the grounds 
that the Mexican Constitution gives all criminals the right to 
be rehabilitated and reintegrated into society. Thus, no matter 
how heinous the crime or how dangerous the criminal, Mexico 
will refuse to extradite anyone facing life imprisonment, which 
in most of our States is the minimum punishment for first-
degree murder. If Mexican authorities officially refuse an 
extradition request, they will then proceed to prosecute the 
fugitive under their own law, which often results in much 
lesser penalties. American prosecutors thus face a dilemma. 
They must either agree to charge a murderer with manslaughter 
or another lesser offense that does match the seriousness of 
the crime, or they must trust to the Mexican justice system. 
Many prosecutors have simply refused to request extradition 
under such conditions, preferring to hope that the fugitive 
will sneak back into the United States and be apprehended.
    The case of Deputy Sheriff David March illustrates this 
problem. Deputy March, a 7-year veteran of the Los Angeles 
County Sheriff's Department, was murdered while making a 
routine traffic stop in April 2002. His suspected killer, 
Armando Garcia, a Mexican national and violent drug dealer who 
had been deported three times from the United States, 
immediately fled to Mexico. Mexican authorities have refused to 
extradite Garcia on the grounds that he faces, at a minimum, 
life imprisonment.
    The case of Deputy March and others like it has spurred 
calls from the administration to put pressure on the Mexican 
Government to renegotiate its extradition treaty with the 
United States. Deputy March's widow Teri has actively 
campaigned for justice for her husband and similar victims of 
fugitive killers. This is indeed not an isolated case. The Los 
Angeles District Attorney's Office estimates that over 200 
murder suspects in Los Angeles County alone have fled to 
Mexico. In response, several Members of Congress have offered 
legislation calling for changes to the existing extradition 
    Other issues surrounding the extradition process must also 
be examined by Congress. For example, in March 2002, the 
Justice Department Inspector General released a report 
criticizing the Criminal Division's Office of International 
Affairs, the main Justice Department agency responsible for 
extradition matters, for its management of extradition cases. 
Questions have also been raised about how vigorously other 
Federal agencies with potential influence are pursuing 
extradition cases.
    This hearing will address all these difficult issues as 
well as legislative and other potential solutions. We are 
pleased to be joined by representatives of the two Federal 
agencies primarily responsible for managing the extradition 
process, the U.S. Department of Justice and U.S. Department of 
State. From the Justice Department we welcome Mr. Bruce Swartz, 
Deputy Assistant Attorney General at the Criminal Division; and 
from the State Department we welcome Mr. Samuel Witten, Deputy 
Legal Advisor at the Department's Legal Bureau.
    Given the impact that extradition has on local law 
enforcement and victims of crime, it is especially important 
that we hear from local representatives. Representing local law 
enforcement officials, we are pleased to be joined by the 
Honorable James Fox, District Attorney for San Mateo County, 
CA, representing the National District Attorney's Association; 
and the Honorable Daniel J. Porter, District Attorney of the 
Gwinnett Judicial Circuit in Georgia. We are also especially 
honored to be joined by Mrs. Teri March, the widow of Deputy 
Sheriff March, who has worked so tirelessly to raise the 
awareness of this issue and to get justice for her husband.
    I thank everyone for taking the time to join us this 
morning, and I look forward to hearing your testimony.
    [The prepared statement of Hon. Mark E. Souder follows:]

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    Mr. Souder. I will now yield to our Congresswoman Sanchez 
for an opening statement.
    Ms. Sanchez. I don't have an opening statement.
    Mr. Souder. Thank you.
    Congressman Deal, our vice chairman of the committee, for 
an opening statement.
    Mr. Deal. Thank you, Mr. Chairman, for holding this hearing 
on one of the most serious problems facing law enforcement in 
this country. Our Nation is one that is built on the rule of 
law. Throughout our history, we have generally avoided 
vigilante justice, mob rule, and the overthrow of government 
that has plagued other nations because we've maintained a 
system of criminal justice that, despite its imperfections, has 
been sustained by the confidence of the American people that 
their government can maintain law and order and punish criminal 
    Today we will hear from witnesses who will document a 
serious flaw in our system. Although the problem of bringing 
criminals to justice within our country is an ongoing battle, 
today we will hear from prosecuting attorneys and the widow of 
a slain police officer about the even greater challenge of 
bringing a criminal to justice when they flee our borders and 
find refuge in another country, especially Mexico.
    The problem of extradition is certainly one that involves 
many nations, but it is primarily a problem with Mexico, a 
nation that has millions of its citizens who are illegally in 
our country. While many of us are seriously concerned about 
Mexico's encouragement of actions that will foster more illegal 
immigration, today we will focus on the most serious failure of 
the Mexican Government, its uncooperative attitude and policies 
relating to the extradition of individuals who have committed 
murders, operated major drug activities and other felonious 
acts within the United States and have fled to Mexico for safe 
haven. These are not crimes committed on our citizens within 
the borders of Mexico; these are crimes committed in the United 
States and which should be prosecuted in the United States.
    Today we will hear about restrictions on extradition 
relating to treaty agreements and judicial opinions of the 
Mexican Supreme Court, but we will also hear about the legal 
barriers that prevent the U.S. prosecutors from obtaining 
justice in some of the most serious criminal cases in our 
country. Unlike Colombia that expedites extradition of alleged 
criminals to the United States for prosecution, Mexico 
continues to resist such efforts. Colombia has recognized that 
extradition to the United States is one of the most effective 
deterrents it possesses in fighting organized drug activities. 
By taking the opposite position, Mexico is rapidly becoming a 
safe haven for organized crime.
    Mexico's refusal to be a good neighbor in the prosecution 
of dangerous felons should be the first reason for the United 
States to resist expanded immigration rules and an open border 
policy. It is my opinion that any country that refuses to 
extradite a criminal who executes a police officer in the 
performance of his duties on American soil does not deserve to 
be given favorable trading status or any other position of 
preference in its dealings with the United States. In light of 
Mexico's change in position that will not allow the extradition 
of anyone facing life in prison without parole, this 
administration should immediately renounce the existing 
extradition treaty and demand that anyone who enters our 
country and commits a serious felony will face the same 
punishment as our own citizens would face for the same crime. 
It is a double insult to the American people for someone to 
enter our country illegally, kill one of our citizens, then 
flee across the border and have his government refuse to allow 
him to be prosecuted using the excuse that our courts may 
impose too harsh a sentence.
    Also, it is alarming to learn from the Justice Department's 
Inspector General's report of last year that the Criminal 
Division's Office of International Affairs has not been as 
vigilant as it should be in pursuing extradition cases. This 
must be corrected. I recognize that most nations, including the 
United States, have reservations about subjecting their 
citizens to extradition to other countries where the system of 
justice differs from nation to nation. However, there is a 
clear difference between a case of a citizen who enters another 
country in a legal status, where his native country consents to 
his leaving and the host country consents to his entry through 
a visa or other immigration program, and someone who enters the 
host country without its consent. Many of the cases that 
confront our prosecutors fall in the latter category.
    I believe the United States should insist that all 
extradition treaties distinguish between these categories, and 
those who have entered another country without the consent of 
that country should always be extradited back to face criminal 
charges and should not receive the same protection as a citizen 
who entered legally. This should apply to citizens of the 
United States who enter other countries illegally as well as 
the citizens of other countries who enter the United States 
illegally. To do otherwise is to place the country of which the 
fugitive is a citizen in the position of ratifying the initial 
crime of illegal entry and aiding and abetting the alleged 
criminal in the subsequent crime that was committed in the host 
country by extending the accused the same protection as other 
citizens who travel to other countries in a legal status.
    Once again, Mr. Chairman, I thank you for holding this 
hearing, and I look forward to the testimony and the proposed 
solutions to this intolerable state of affairs.
    [The prepared statement of Hon. Nathan Deal follows:]

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    Mr. Souder. Congressman Ose, do you have an opening 
    Congressman Carter, any opening comments?
    Mr. Carter. No.
    Mr. Souder. I would like to ask unanimous consent that all 
Members have 5 legislative days to submit written statements 
and questions for the hearing record, and any answers to 
written questions provided by the witnesses also be included in 
the record. Without objection, it is so ordered.
    I also ask unanimous consent that all exhibits, documents, 
and other materials referred to by Members and the witnesses 
may be included in the hearing record; that all Members be 
permitted to revise and extend their remarks. Without 
objection, it is so ordered.
    Our first panel today is from the administration. We 
welcome Mr. Bruce Swartz of the Justice Department, Mr. Samuel 
Witten of the Department of State.
    It is our standard practice to ask witnesses to testify 
under oath. If you will stand and raise your right hands, I 
will administer the oath to you.
    [Witnesses sworn.]
    Mr. Souder. Let the record show that both witnesses 
responded in the affirmative.
    Thank you both for coming today. And, Mr. Swartz, I think, 
if you will start, and you are recognized for 5 minutes.
    Mr. Swartz. Mr. Chairman, with your permission, if Mr. 
Witten could begin by discussing the overall extradition 
program, and I will return to address the problem of Mexico in 
    Mr. Souder. OK. We will recognize Mr. Witten first.

                           OF JUSTICE

    Mr. Witten. Thank you, Mr. Chairman. Mr. Chairman, and 
members of the committee, I am pleased to appear before you 
today to testify on the subject of strengthening the long arm 
of the law: How are fugitives avoiding extradition, and how can 
we bring them to justice? With your permission, I will submit 
my prepared testimony for the record and summarize the 
testimony here.
    The Department of State appreciates this opportunity to 
discuss international extradition. The growth in transborder 
criminal activity, especially terrorism, violent crime, drug 
trafficking, and the laundering of proceeds of organized crime, 
has confirmed the need for increased international law 
enforcement cooperation, including the essential tool of 
extradition. In my testimony I will highlight our efforts to 
modernize our extradition treaty relationships and highlight 
the key problems we face internationally. Mr. Swartz will 
discuss in detail our recent interactions with Mexico, which I 
understand is of particular interest to the committee.
    Although nations have no general obligation in 
international law to extradite, the practice, of course, has 
become widespread, and there now exist hundreds of treaties 
around the world relating to international extradition. Because 
of the many unique national legal systems around the world, no 
single set of rules governs the process of international 
extradition, and the conditions under which extraditions are 
granted and may be granted vary among countries.
    The international extradition process inherently involves 
the laws of two countries, as the opening statements have 
reflected, the country requesting extradition and the country 
where the fugitive is located. The process of extradition can 
be challenging, time-consuming, and sometimes frustrating. Most 
extraditions to and from the United States take place pursuant 
to bilateral extradition treaties. In recent years, the State 
and Justice Departments have made a concerted effort to expand 
and modernize our extradition treaties in order to make the 
extradition process work more efficiently and effectively. In 
many cases we've replaced older treaties with new, updated 
treaties, with improvements such as replacing the list of 
extraditable offenses with a more comprehensive regime of dual 
criminality. We have also entered into new extradition treaties 
with partners such as Philippines and South Korea.
    Since 1990, we've negotiated and signed nearly 30 new 
extradition treaties that have improved this framework. 
Improvements include, where possible, providing for the 
extradition of nationals, smoothing the procedures for 
extradition, clarifying the standard of proof in extradition, 
specifying applicable statutes of limitations, and limiting the 
political offense exception to extradition, and addressing 
other issues.
    At this point we have extradition relationships with well 
over 100 countries around the world. Pursuant to this network 
of treaties, our requests have resulted in return to the United 
States for trial and punishment of persons charged with or 
convicted of the widest variety of crimes, murder, terrorism, 
white collar crimes, narcotics trafficking, and others. Some of 
our recent extraditions have included the extradition from 
France of James Kopp, who murdered abortion doctor Bernard 
Slepian in Buffalo, NY, and was convicted of murder this year 
in New York; Ira Einhorn, who murdered his girlfriend in 
Philadelphia and was returned from France and convicted last 
year for murder in Philadelphia; and, from Guatemala, of Milton 
Napoleon Marin Castillo, who was charged with committing a 
double murder in Ann Arbor, MI.
    While there have been successes, the existence of an 
extradition treaty, even a modern one, does not ensure that all 
will always go well. In fact, because of differences in legal 
systems, the extradition process is neither simple nor without 
frequent delays. Mr. Swartz will go into detail about the 
assurances question that the committee has raised; I will just 
mention briefly in the time allotted several issues that we are 
also working on. One is the issue of extradition of nationals.
    The United States asks all of our treaty partners to 
extradite their nationals to the United States for crime--or 
for punishment as we would extradite our nationals in 
appropriate circumstances to other governments. This issue is a 
complicated one for many countries, and we have made some 
progress, but not as much as we would like. A number of our 
treaty partners in Europe and Latin America still cannot 
extradite nationals. Our major successes in the most recent 
years have been with South America. Our recent treaties with 
Argentina, Bolivia, Paraguay, and Peru all provide for 
extradition of nationals.
    We have made other gains in terms of working with foreign 
countries on their domestic laws, permitting them to extradite 
where the discretion is given to them. The Dominican Republic 
is one example. They have repealed their law prohibiting 
extradition of nationals, permitting extradition to the United 
States of Dominican nationals on such offenses as murder and 
narcotics trafficking. After many years of discussion, both 
Mexico and Colombia have been extraditing nationals to the 
United States, Mexico under the U.S./Mexico bilateral treaty, 
and Colombia under the authority of its domestic law.
    And another continuing problem alluded to by the committee 
with which Mr. Swartz will deal with is death penalty and life 
imprisonment assurances. This has become of particular concern, 
as you noted, with Mexico. The Mexican Supreme Court ruling of 
October 2001 on life imprisonment has presented major 
challenges to the United States and also to Mexican officials. 
I can assure the committee that this is a major concern to the 
State Department at the highest levels. We continue to strongly 
believe and communicated firmly to the Mexican Government that 
the Mexican Supreme Court opinion should be revisited so that 
our extradition relationship is not subject to this additional 
burden. Both the State Department and the Justice Department, 
including the Attorney General and Secretary Powell, have 
engaged the Mexican Government on this issue. We continue to 
press for the Mexican Government to seek the reversal of this 
decision and, at a minimum, reduce its adverse impact for as 
long as it is in effect.
    In summary, Mr. Chairman, we have had some successes in 
this area. We face many challenges. Needless to say, the system 
of international extradition would work more effectively for 
the United States if all nations had the same Constitution, 
laws and policies that we do. Of course, this is not the case, 
and because this is not the case, our task to which we are 
fully committed is to make the process work as smoothly and as 
efficiently as possible.
    We appreciate the committee's interest in these important 
issues, and I will be happy to address any questions the 
committee may have. Thank you, sir.
    Mr. Souder. Thank you for your testimony.
    [The prepared statement of Mr. Witten follows:]

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    Mr. Souder. Mr. Swartz.
    Mr. Swartz. Thank you, Mr. Chairman.
    Mr. Chairman, members of the subcommittee, thank you for 
the opportunity to discuss with you today the important issue 
of the obstacles we face to our extradition practices in the 
United States.
    Mr. Witten. Mr. Chairman, is his mic on?
    Mr. Swartz. Thank you, Mr. Chairman. As I said at the 
outset, let me thank you again for the opportunity to discuss 
this important issue.
    The Department of Justice, along with the Department of 
State is committed, fully committed to the return to the United 
States of every fugitive who has broken the laws of the United 
States. That is true regardless of whether or not the offense 
is a Federal offense, a State offense or a local offense. But, 
Mr. Chairman, as you and other members of the subcommittee have 
noted, and as my colleague from the State Department has also 
noted, we do face serious obstacles to extradition in many 
circumstances. Two of those obstacles were mentioned in the 
opening statements of the committee, the death penalty and life 
    As the subcommittee is aware, many nations throughout the 
world now forbid the death penalty. And, again, Mr. Chairman, 
as you pointed out, that is a matter that we have had to deal 
with for some period of time in our extradition practice. We 
have over time evolved a process for dealing with that issue. 
Our extradition treaties almost invariably in cases of 
countries that forbid the death penalty do not bar extradition 
in capital cases, but rather permit the country from which 
extradition is being sought to demand assurances that the death 
penalty will not be imposed, or, if it is imposed, will not be 
    When the United States receives such a request for 
assurances, we coordinate closely with the prosecuting 
authorities, State or Federal, to determine whether they are 
willing to grant such assurances.
    While this process is frustrating, it reflects not only the 
increasing trend among countries toward the abolition of the 
death penalty as a sanction under their domestic law, but the 
extent to which those abolitionist views have been extended 
either as a matter of law or of policy to refusing to take any 
action, including granting extradition that could still 
facilitate the imposition of the death penalty by another 
    The death penalty assurance regime thus for many years has 
provided a mechanism for reaching some accommodation of widely 
divergent national views on capital punishment, while 
permitting extradition and trial of accused murderers to 
proceed, albeit at the cost of sacrificing the maximum 
punishment for such crimes.
    But while over the course of years we have been able to 
work with the regime of the death penalty, we now face a 
disturbing growth in demands for similar assurances with 
respect to life imprisonment or a maximum term of years of 
imprisonment. Some countries are now refusing to extradite 
fugitives absent assurances from the United States that they 
will not face life imprisonment or in some cases even some 
other maximum term of years deemed inappropriately lengthy. As 
has been discussed, Mexico, of course, requires such an 
assurance as a result of a decision of the Supreme Court in 
    But before turning to Mexico, I must note that there are 
other countries who have sought assurances as to sentences of 
imprisonment, although for a variety of reasons that we will 
discuss today, the problem in Mexico is a more severe one.
    Colombia, which as has been noted already this morning is 
one of our best extradition partners, seeks an assurance as 
well regarding life sentences. But we have been able to arrange 
to give assurances that have proven workable in terms of the 
nature of the charges that are frequently presented in Colombia 
cases. Spain and Venezuela have also sought assurances as to 
nonimposition of life imprisonment. And Costa Rica has sought 
assurances that neither life nor a sentence in excess of 50 
years will be imposed.
    I should add parenthetically, it is not only with regard to 
the United States that such assurances have been requested. 
France, for instance, has received in the past requests for 
imprisonment guarantees from Portugal in a case involving a 
serious criminal.
    These developments are of great concern to the Department 
of Justice as well as to the Department of State. We believe 
for international extradition to work, there must be a certain 
degree of deference to the criminal justice systems and the 
punishments of the country seeking return of a fugitive. From 
my perspective, to the extent that countries' due process 
guarantees are deemed insufficient, the solution is not to 
enter into an extradition treaty; rather than to try to 
interpret that treaty in a way that prohibits, in essence, the 
return of a fugitive.
    But, as we have encountered with Mexico, in some 
circumstances the issue is presented not by our executive 
branch partner, but by the judiciary in other countries. As the 
subcommittee is aware, in October 2001, a decision of the 
Mexican Supreme Court concluded that life assurances would be 
requested--life imprisonment assurances would be requested with 
regard to extradition. This has to be seen, of course, in terms 
of our larger extradition relationship with Mexico, which has 
included increasing number of extraditions in the past years, 
including extraditions of nationals for some serious crimes. In 
addition, the total number of fugitives returned by Mexico to 
the United States well exceeds the total number of extraditions 
because, particularly in recent years, Mexico has frequently 
exercised its authority under its immigration laws to deport 
American citizen fugitives who are in Mexico illegally.
    For example, the FBI and the U.S. Marshal Service at our 
embassy report a total of 57 fugitives deported to the United 
States to date in fiscal year 2003. Among those deported were 
Andrew Luster, the Max Factor perfume heir and convicted serial 
rapist; Ronald Samuels, who is alleged to have hired three 
separate killers to murder his ex-wife, leaving the victim a 
paraplegic; and William Edminston, wanted for a $25 million 
bankruptcy fraud.
    Also on the positive side, our law enforcement agencies 
have been able to work more closely with their Mexican 
counterparts, including on fugitive cases. Indeed, our ability 
to track fugitives, which is the prerequisite for seeking any 
return, has been significantly increased thanks to the 
Congress's approval in February 2003 for the establishment of a 
field office for the U.S. Marshal Office in Mexico City.
    But despite these positive developments, the fact remains 
that the Mexican Supreme Court's October 2001 decision barring 
extradition in life sentences cases has constituted a serious 
setback to our bilateral extradition treaty relationship. The 
court, notwithstanding the arguments of the Mexican Government 
to the contrary, ruled that extradition of a person from Mexico 
who faced life imprisonment would violate the Mexican 
Constitution's barring cruel and unusual punishment. The result 
has been severe. Since October 2001, extradition has been 
denied in 19 cases in whole or in part because of our inability 
to provide assurances. But the impact goes beyond the number of 
cases, since these are some of the most serious cases that we 
    Finally, even where prosecutors may believe that limiting 
the availability of a life sentence is worth the opportunity to 
bring a defendant to trial, providing guarantees may prove 
difficult in the context of life sentences in a way that is not 
the case in death penalty situations. As my colleague Mr. 
Witten has pointed out, both the State Department and the 
Justice Department up to and including the Attorney General and 
Secretary of State have repeatedly engaged the Mexican 
Government on this issue. We have made sustained and continuous 
efforts to have the Mexicans seek the reversal of this decision 
or, at a minimum, reverse its adverse effects. We understand 
that the Mexican Ministry of Foreign Relations and the Mexican 
Attorney General's Office have filed a petition with their 
Supreme Court seeking reconsideration of the October 2001 
decision. We will continue to press on this issue.
    At the same time, as we have noted already, this is not 
simply a question of political will on the part of the 
executive branch of the Mexican Government. Our extradition 
relationships, unlike the other aspects of our law enforcement 
relationships, are not simply executive to executive. 
Extradition, because in almost every case it involves judicial 
involvement, also involves an independent branch of government. 
This complicates tremendously our relations not only with 
Mexico on extradition, but other countries as well.
    Notwithstanding this, we remain committed to push forward 
on this issue, to work with this committee, to work with 
Congress generally, and to attempt to find solutions for this. 
As my colleague Mr. Witten noted, Ira Einhorn was returned to 
the United States after 20 years of efforts on the part of the 
Office of International Affairs of the Department of Justice 
and our colleagues in law enforcement. It is exactly that 
commitment and dedication that we bring to every extradition 
case, and we will continue to do so.
    Thank you again for your time. I look forward to answering 
any questions.
    [The prepared statement of Mr. Swartz follows:]

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    Mr. Souder. I would like to ask just a couple of basic 
questions before we get into some of the meat of the 
questioning. One that I am a little confused about, I just want 
to clarify--it could be relatively short answers; either of you 
can respond. When you say life imprisonment, some of these 
countries were 50 years, 30 years, Venezuela was 30, Portugal 
20. Is that first sentence, or is that combined? For example, 
    Mr. Swartz. Mr. Chairman, as to some of those countries, 
that is the aggregate sentence. That is, that person cannot be 
sentenced beyond that term of years.
    Mr. Souder. And do the extradition treaties vary by, for 
example, if it was a U.S. citizen hiding out there like 
Einhorn? And what if they had been hiding--first off, if it's a 
U.S. citizen that flees across the border--let me give you a 
couple examples. A citizen flees across the border; clearly, a 
U.S. citizen only. A U.S. citizen flees across the border, 
stays in, say, France for an extended period of time, gets 
citizenship there, becomes dual even though the reason they 
became dual is they fled the United States. A third would be an 
illegal resident in America who therefore is a national of 
another country who commits a crime here, say a murder, and 
flees back to, say, Mexico or Colombia. A fourth would be what 
many people are, are dual nationals; in other words, they could 
be a citizen in the United States and a citizen of Venezuela, 
of Colombia, of Mexico. Could you kind of go through a little 
bit how the extradition treaties vary in those different 
    Mr. Witten. Mr. Chairman, our treaties typically don't 
distinguish between the responsibilities of the state with 
respect to extradition of nationals except insofar as some of 
our treaties do have language that permit the executive 
authority of the requested state--that is, the state where the 
fugitive is located--not to extradite its nationals. In some 
cases, the language varies, so it's more or less discretionary 
on the part of the request of state; in some cases it's more 
mandatory on the government than not.
    Where the nationality does become very relevant would be, 
for example, Mr. Swartz mentioned some of the deportations. 
Extradition is obviously very important, and it's a way that we 
get lots of fugitives from countries around the world, but 
quite a few countries do have flexible immigration statutes. So 
Mexico, for example, was able to send Mr. Luster back over the 
last several months to the United States, not through a formal 
extradition process involving judicial challenges and appeals 
and so forth, but through their immigration process. That's one 
way that the treaties were distinguished.
    You gave the example, Mr. Chairman, of a fugitive fleeing 
one country, becoming a national of the other. I think the 
extent to which that country would view that person as its 
national would probably vary. If you will remember, in the 
Scheinbein case--this is the famous case several years ago 
where the fugitive left Montgomery County, MD and went to 
Israel--there was extensive litigation within the Israeli 
judicial system about whether at the time the murder was 
committed Mr. Scheinbein was a national of Israel. And at our 
request, the Israeli Government litigated affirmatively that 
said that he was not entitled to the protection of Israel's 
nationality law. And in a split decision, the Israeli Supreme 
Court ruled that there was sufficient contacts with Israel to 
permit the Israeli Government--or to require the Israeli 
Government to withhold extradition.
    So it becomes a very case-by-case basis, depending on the 
national laws of the country involved and what other options 
might be available by way of working outside of the extradition 
    Mr. Souder. Mr. Swartz, did you want to comment?
    Mr. Swartz. I would add simply that, Mr. Chairman, under 
some circumstances, regardless of the nationality of the 
fugitive sought, the country may require the same type of 
assurances before the individual is returned. Einhorn would be 
an example of an American citizen as to whom the death penalty 
assurances were sought.
    Mr. Souder. From my visits in Central and South America, it 
seems to me, though, the intensity is a lot greater on 
    Mr. Witten. The issue of extradition of nationals, this 
hemisphere is split. In South America, there are several 
countries that have abandoned the protection of nationals that 
we have mentioned, Peru, in my testimony and some--Peru and 
Paraguay, for example. In some cases in Central America, 
typically nationals are not extradited under the domestic 
Constitutions or laws of the respective countries. Mexico, as 
we mentioned, does extradite its nationals. Dominican Republic 
does. In Europe, typically the countries--civil law countries 
do not extradite their nationals.
    Mr. Souder. I'm going to yield, if it's OK, to Ms. Norton 
next, because she had a time problem.
    Ms. Norton. I want to thank Ms. Sanchez for allowing me to 
go out of turn. I'm ranking member of a committee that will be 
meeting shortly.
    I have some questions particularly involving the 
complications here between international law and criminal law, 
and I understand the difficulties you have.
    Victims here want justice. I am just amazed at the Einhorn 
case and how long it took to get the kind of justice, always 
relative in international terms, it seems to me you could have 
gotten 20 years ago.
    Let me ask this question. Our criminal laws are 
particularly harsh when measured by other democratic countries. 
You say many countries don't have the death penalty. Most 
countries don't have the death penalty. I do understand that we 
are negotiating against a world consensus on issues like that. 
I'm puzzled by your notion, one of you talked about the, 
``inability to provide assurances.'' Revisit the Mexican 
Supreme Court decision, we would like them to revisit that 
decision. You know, I try to think we are dealing with 
sovereign nations. Hey, revisit the Supreme Court decision of 
the United States. I tell you one thing, there are a number of 
Supreme Court decisions of the United States I would like to 
see revisited. And when my country in response to another 
sovereign nation asks that, then I will understand how 
reciprocity works here, because I don't see reciprocity here.
    We are dealing in other countries with things that are 
sacrosanct to us, their Constitution, where you know good and 
well there is no ability on the part of the Supreme Court or 
any other court to change what the law requires. We are not 
dealing with legislative changes. We are dealing with sovereign 
nations which have independent judiciaries, which are something 
we prize more than we prize anything else in our Constitutional 
system. We are dealing with publics who feel as strongly about 
their sanctions as we do about ours; for example, about the 
death penalty, to take an example.
    Now, let me ask you a question based on a real case. The 
Einhorn case, and the notion that we kept that family waiting 
almost a quarter of a century is outrageous. And why did we 
keep them waiting? Because in a case where it was as almost as 
clear as any case you have seen that this man was guilty, 
apparently we were unwilling to negotiate the question of the 
death penalty. What happened finally? We finally did negotiate 
that question; Einhorn came back here; he's convicted.
    I don't know if these decisions are made by individual U.S. 
Attorneys, the main Justice gets into it, if there are 
negotiations between our State Department and our main Justice, 
but I would like some insight into the process you go through. 
I'd particularly like to know, if you are seeking justice for 
victims here, why you don't negotiate with sovereign nations 
knowing full well in many of these cases that there are not 
changes they can make any more than there are changes you can 
make in our own country; why we are insistent, for example, in 
death penalty cases that, I'm sorry even in the Einhorn case, 
we are going to keep you waiting for two decades. Why not 
simply negotiate, bring back, get some measure of justice for 
these victims? And what is the process you use, and why does it 
take so long, particularly when you fold, as you ultimately did 
in the Einhorn case?
    Mr. Swartz. Thank you.
    The issues that you have raised do go to the heart of the 
problems we face in this regard. As you note, we are dealing 
with sovereign nations, and frequently, as I noted in my 
opening statement, with the judicial systems of sovereign 
nations rather than the executive branch. Notwithstanding that, 
we have found over the years that by continuous discussion with 
the executive branch of other countries, Mexico being one, it 
is possible to present, not in a way that suggests that they 
have to adopt our system, but in a way that suggests that there 
are things to be learned from our system, approaches that we 
believe are appropriate, including, as an example that my 
colleague noted, the extradition of nationals, an issue that we 
have pressed repeatedly in our treaties, and in some cases we 
have led other countries to change their Constitutions.
    Ms. Norton. Did you really think in the Einhorn case that 
his open and notorious living in France that you were going to 
be able to get France to do something about the death penalty?
    Mr. Swartz. No. In the Einhorn case, as you note, there was 
extensive delay. Part of that delay, of course, was simply 
locating Mr. Einhorn. He had been successfully--he fled 
apprehension and had evaded our detection. When he was located 
in France in 1997, the issue was not simply the one of the 
death penalty, but, as you recall, the trial in absentia. And 
as a result, there needed to be legislation in Pennsylvania 
that made it possible for him to be retried. That was the 
critical issue.
    As to the broader question you raised, and a very serious 
one, as to how the decisions are made as to whether or not 
assurances should be given, that is a matter that is primarily 
in the hands of the local prosecutors or the Federal 
prosecutors as the case may be to consider what the various 
options are.
    Ms. Norton. Is it the local U.S. Attorney or is it main 
    Mr. Swartz. Well, we certainly consult in the case of 
Federal cases with the U.S. Attorney as to the various options 
that are available, and we provide, again, the same advisory 
service for the local and State prosecutors that face this 
issue. In the final analysis, the decision has to be made, 
unless it's a case, of course, being prosecuted by the main 
Justice Department, as to a weighing up of these factors. 
Usually we are able to reach a common view. But, as you say, in 
some circumstances, certainly in the death penalty context, it 
is well recognized now that in most cases we will have to give 
a death penalty assurance if we hope to have the individual 
extradited. That does not rule out the possibility that we 
might be able to apprehend the individual in another country or 
have the individual deported. So there are factors to be 
    Ms. Norton. Thank you, Mr. Chairman.
    Mr. Souder. And I think it's important to point out for the 
record here, we are not talking about changing the laws of 
other countries in their countries; we are talking about 
whether American law can be enforced--whether American citizens 
are going to be subject to different laws of the United States 
than those who have fled our country and noncitizens being--
having the same laws applied to them. And it's a very difficult 
international question, but it's a question of whose 
sovereignty applies when it happens on your soil.
    Judge Carter.
    Mr. Carter. Thank you, Mr. Chairman. I have a limited 
amount of experience with Mexican justice, having gone down in 
either 1978 or 1979 to try to get two U.S. citizens out of a 
Mexican jail in Puerto Vallarta, Mexico. The jail clothes that 
they wore in that jail were their underwear, the prison cell 
was a courtyard the size of this room with an open sewer in the 
middle, and the bath was a fire hose that was squirted on them 
once a day. And so I can understand why they would think that 
50 years in prison would be cruel and unusual punishment. We 
really felt like 30 days in that jail was cruel and unusual 
    There is a difference. Mexico, for instance, does not have 
habeas corpus rules. You can be held indefinitely in Mexico 
prisons without the right of talking to counsel, nor without 
any right to bond.
    So to compare American justice with Mexican justice is a 
strange comparison, in my opinion. And I personally experienced 
and witnessed that, and I can tell you that that's cruel and 
unusual punishment.
    And as we negotiate, does anyone ever negotiate in light of 
our prison standards of our United States? When we talk to 
these folks about their policies on extradition, do we also 
present to them our prison standards? Because I'm fairly 
confident that our prison standards are at least better than 
any in the Central and South America, certainly equal to those 
that are in Europe. Is that ever any part of the negotiation 
process when we are looking at these things?
    Mr. Witten. In the course of negotiating an extradition 
treaty, we would have a general discussion of all aspects of 
the legal, judicial, penal systems. The issue of the conditions 
of confinement in another country would come up in a particular 
context I should highlight for you.
    We have noted that we have 100 and some extradition 
treaties at this point. There are a number of countries with 
which we don't have extradition treaties because these are 
reciprocal treaties, and they would require us to extradite 
into a foreign government's judicial and penal system. In some 
cases we haven't negotiated a treaty just because in the triage 
of things it's more important to update the U.K. Treaty or 
Canada treaty where there is lots and lots of fugitive traffic. 
The conditions of confinement could certainly be a factor and 
have been a factor in some cases where we have considered 
whether we are comfortable entering into an extradition treaty 
with a foreign country.
    When we enter into an extradition treaty with a country 
that has prison conditions that aren't as up to the U.S. 
standards, which as you indicate would be common, the treaty 
itself wouldn't contain language on that because it's not a 
framework to dictate within the context of the treaty what the 
judicial system, the penal system would be, but certainly it's 
a part of the general discussion. And in cases where we have 
worked affirmatively with other countries to upgrade their 
legal-judicial-penal systems, it certainly would be a part of 
the bigger picture.
    Mr. Swartz. If I might add as well, in this particular case 
involving Mexico and the Supreme Court's decision, the 
Mexicans' report relied not on our prison conditions, but 
rather on the notion that a life sentence was impermissible in 
any set of circumstances since it allegedly did not recognize 
the possibility of rehabilitation. For that reason, we have 
been able, working with the Mexican Government, to establish 
that in cases where we can establish that parole is a 
possibility even under life sentence circumstances, we have 
been able to secure extradition. But I should stress that our 
Mexican executive branch counterparts have not suggested that 
this has anything to do with our prison conditions and, indeed, 
argued strongly against the decision of the Mexican Supreme 
    Mr. Carter. And it is the--only the life without parole 
situation you are talking about. For instance, in Texas a life 
sentence or any amount of sentence above 60 years is 60 years 
for the basis of parole. And so the ploy of the prosecutors is, 
don't give him life, give them 60 years, which is life. It's a 
lack of parole that's the issue.
    Mr. Swartz. And, in fact, we have been able under some 
circumstances such as that to have been able to secure 
extradition, formalistic as it may sound. Even lengthy terms of 
60 years, we believe, are permissible and would be a basis for 
extradition. The problem we face is that the sentencing 
structure of many States in particular require either life 
imprisonment or death as the punishment for particularly 
serious crimes. So with that structure in place, and without a 
parole system in place, and the Federal Government no longer 
has a parole system as well, we don't have the flexibility that 
might be in place in Texas or other States.
    Mr. Carter. I know my time has expired, but may I ask one 
more question, Mr. Chairman?
    Mr. Souder. Yes. Go ahead.
    Mr. Carter. Do you request that they be held by Mexico, for 
instance, until the process of extradition is completed; in 
other words, be incarcerated until they have completed the 
extradition process? Is that request routinely made?
    Mr. Witten. Yes, sir.
    Mr. Carter. Then it would be cruel and unusual punishment 
just to spread out the hearing, I promise you. Thank you.
    Mr. Souder. Mr. Ruppersberger.
    Mr. Ruppersberger. First, a couple things. The issue 
really, the biggest problem we have, I think, basically from 
the testimony is with Mexico. And it seems to me that it's the 
issue of their Supreme Court, and their Supreme Court is 
overriding anything that is being done in the legislative or 
with the administration. Are we doing anything--maybe more from 
a State Department point of view. What are we doing to try to 
overcome that? Are we getting anywhere? What tactics are we 
using? Do we have any leverage at all with respect to that 
    Mr. Witten. Mr. Swartz will supplement, but the United 
States is working in closely with the executive branch. The 
executive branch of the Government of Mexico would like to see 
this decision reconsidered. As we understand it, the equivalent 
of the Justice Department of Mexico has filed with the Supreme 
Court a formal request that this decision, which was an 
interpretation of the Constitution, be revisited. So, yes, we 
are working closely with them. And the State Department and 
Secretary Powell has raised this issue. Our Ambassador to 
Mexico, Ambassador Garza, has raised it repeatedly. And Mr. 
Swartz will indicate that the Justice Department is not only 
raising it at the Attorney General level, but actually working 
hand in hand with the Mexicans in connection with revisiting 
    Mr. Swartz. And in that regard, thanks again to the funding 
that Congress has provided, we do have a Federal prosecutor 
that works out of the U.S. Embassy in Mexico City that has been 
working on this issue. In addition to seeking rehearing, we, as 
I noted, have tried to think of ways in which we can deal with 
this issue insofar as the Court opinion remains as it now 
stands, including dealing with the issue of parole, making that 
point that parole is a sufficient basis even where a life 
sentence is imposed, and working with their foreign ministry 
which controls the extradition process in certain respects to 
ensure that courts, lower Mexican courts, do not invoke this 
principle in inappropriate cases.
    Mr. Ruppersberger. What's the history of that Supreme 
Court? Is it just traditionalist? Has it any ties to 
unfavorable individuals? What's the background? And we can talk 
about this all the time. Are the courts pretty strong in their 
positions? Where are we with respect to that? Or do you not 
want to get into that, probably?
    Mr. Witten. Mr. Ruppersberger, we don't have that kind of 
detailed information about the makeup of the individual judges 
on the Supreme Court. We do know that this decision was not 
anticipated by the Mexican Government when it was reached. We 
know that they are working closely with us to try to have it 
revisited, but we don't have any basis to make any further 
judgments about the particular judges involved and so forth.
    Mr. Swartz. I should add as well that the Mexican Supreme 
Court, in a decision favorable to the United States in January 
2001, shortly before the decision we've talked about here, made 
clear that nationals, citizens of Mexico, could be extradited 
to the United States, clarifying an issue that had blocked some 
of our prior extraditions. So it has been a mixed series of 
results from the Mexican Supreme Court.
    Mr. Ruppersberger. Other than Mexico, what other countries 
do we have issues with? Are there any other countries that have 
this same requirement as far as life imprisonment or death 
    Mr. Witten. Yes. Mr. Ruppersberger, there have been quite a 
few cases, particularly in Europe, France, Germany, in other 
countries that have abolished the death penalty domestically. 
But also, their judiciaries or other appropriate authorities 
have interpreted their Constitutions or other fundamental law 
as precluding the ability of their executive branches to 
extradite to a system where capital punishment is possible.
    Mr. Ruppersberger. We are in a new era; and not only do we 
have a lot of issues with respect to drugs, but also with 
respect to terrorists. So it seems to me that there is going to 
be a lot of activity in this regard. What about some of the 
countries where we might have issues with respect to terrorism? 
Are there any countries now that are out there where we might 
have some problems you could address?
    Mr. Swartz. In terms of the death penalty, that issue will 
remain even with terrorism cases. We have certainly seen in 
occasions that we will be required to give death penalty 
assurances even in terrorism cases. So that is a continuing 
    With regard to life imprisonment assurances, while we have 
seen that, not simply from Mexico, but, as I noted in my 
opening statement--but from other countries such as Colombia, 
Venezuela, Spain, the issue has not come to the fore so much in 
those countries simply because of the volume of Mexican cases 
and the proximity to the border between the United States and 
    Mr. Ruppersberger. OK.
    Mr. Souder. Will you provide the committee with a list of 
countries and number of pending cases that are stalled, not 
pending cases that are moving through, so we can get some kind 
of scale of which countries?
    And then you said in Colombia, I believe, that they are 
looking at making some changes in their Constitution?
    Mr. Witten. I can't hear you.
    Mr. Souder. That in the case of Colombia, you said they are 
looking at a Constitutional change there, so you could note 
that. But if you could give us like with Mexico, Spain, 
Venezuela, how many cases of extradition are stalled, not how 
many do you have out there that are working their way through a 
normal process.
    Mr. Swartz. Mr. Chairman, certainly----
    Mr. Souder. And you can submit that for the written record.
    Mr. Swartz. Yes. It was with particular focus on countries 
in which there have been assurances requested with regard to 
life imprisonment, or in terms of years?
    Mr. Souder. Extradition requests that are stalled. In other 
words, if they are in the process, and they are moving through 
on a normal basis, we don't need to know how many extradition 
requests we have outstanding. And then we can zero in on how 
much of this is Mexico, how much of it is other places, what 
other countries there are. You have hit the high ones here 
today, I assume.
    Mr. Swartz. Certainly. We will certainly attempt to do 
    One of the issues, of course, in terms of stalling is, as 
the subcommittee is well aware--is that the judicial process 
themselves oftentimes permit a defendant in many countries, and 
sadly to say in the United States as well, to delay his or her 
    Mr. Souder. By stall, I should say policy stalling as 
opposed to--in other words, not something that is playing out 
its normal course as anything would play.
    Mr. Deal.
    Mr. Deal. Thank you, Mr. Chairman.
    I would like to ask at the outset, in the 100 or so 
treaties that we have negotiated with other countries, does the 
United States put a reservation in those treaties that we will 
not extradite U.S. citizens back to another country under any--
or do we put any conditions on that?
    Mr. Witten. The United States has, as a matter of policy 
through its history, extradited U.S. nationals to other 
governments, and our treaties come in several varieties on the 
extradition of national points. One of them would be that the 
executive branch of the requested state may in its discretion 
deny extradition if required by its laws to do so, and that 
would be a typical European-type framework.
    Mr. Deal. No. I'm talking about from the U.S.' point of 
view. Do we not, in fact, make our citizens subject to 
extradition back to these countries under almost--with almost 
no conditions attached, whereas they put conditions on the 
extradition back to our country?
    Mr. Witten. The United States does extradite its nationals 
under these treaties, and we advocate that all countries do so.
    Mr. Swartz. Mr. Congressman, it is the case, however, that 
in some circumstances the United States has reserved the right 
to seek death penalty assurances itself with regard to 
extradition of citizens or others from the United States.
    Mr. Deal. But that would only be in cases where their law 
provides a death penalty and ours would not for the same 
circumstances. That's traditionally been the Far Eastern 
countries; has it not?
    Mr. Swartz. That is correct.
    Mr. Deal. Where their sentences are harsher than ours.
    Mr. Swartz. That is correct. But, yes.
    Mr. Deal. So, let me give you a hypothetical that would 
hopefully never, ever happen, and forbid it to happen. A 
Mexican national comes illegally across the border of the 
United States, assassinates the President of the United States, 
and retreats to Mexico. Am I to understand that, under the 
current state of affairs with Mexico, that individual could not 
be extradited back to the United States to face a capital 
felony punishment, nor could he be extradited back unless we 
would give assurances that he would face a sentence of less 
than life without parole? Am I correct?
    Mr. Swartz. Yes, Mr. Congressman. Unfortunately, under that 
hypothetical he would not be extradited without a death penalty 
guarantee, which would be true in many circumstances in many 
countries across the world, with the added problem that there 
would also be a life imprisonment assurance requested.
    Mr. Deal. What has happened with Mexico, then, is that the 
original treaty between the United States and Mexico has now in 
part been abrogated by this Supreme Court decision of the 
Supreme Court of Mexico by placing these additional conditions 
on it; is that correct?
    Mr. Swartz. Mr. Chairman, as has unfortunately been the 
case in other countries where judicial decisions have been 
rendered, the treaty has, to this extent, been altered. That 
is, the United States now has to find, if it wants to extradite 
these individuals, some means of providing assurances that are 
now, according to the Mexican Supreme Court, required by the 
Mexican Constitution.
    Mr. Deal. In a few minutes we will hear from the widow of 
Officer March, who was literally executed by a career criminal, 
illegally in our country, who retreated back across to Mexico 
and has been refused to be extradited back to the United 
    Now I would like to hear publicly the explanation from our 
State Department and the Department of Justice as to why the 
state of affairs, which in my opinion is intolerable, has been 
allowed to continue and what your proposed solutions are.
    Mr. Witten. Mr. Congressman, as our testimony reflects and 
as my comments reflected, the State Department and the Justice 
Department share your view that this situation must be 
corrected. Because it is a judicial matter, we are working with 
the Mexican executive branch to see if this decision will be 
revisited. There is currently at our request and at the request 
of the senior officials of the Government of Mexico, a petition 
to reopen this issue. It was an interpretation in October 2001 
of a Constitutional provision of the Mexican Constitution. And 
we totally agree that this decision should be reversed.
    Mr. Deal. Is the man being incarcerated while these 
decisions are being reviewed, or is he running free?
    Mr. Swartz. My colleagues note that there is not yet a 
request for extradition that has been made in this case.
    Mr. Deal. So there is no process whereby, short of asking 
for extradition, that we could request that the individual be 
arrested and held pending that decision; is that correct?
    Mr. Swartz. Provisional arrest is usually preceding to an 
extradition request. I should add, if I may, Mr. Congressman, 
that we fully recognize the human dimension of this and the 
tragedy involved and we would like to extend our condolences, 
if I may, to the widow of Deputy Sheriff March. The reason that 
we pursue these cases, I want to make clear, is not simply 
because it's our job but, we recognize, bringing these people 
back to justice. Your frustration is our frustration in this 
regard and it is a frustration shared by our colleagues in the 
executive branch of the Mexican Government as well. We are 
trying to think through what kind of solutions we can have 
here, assuming the decision is not reversed on the hearing.
    Mr. Deal. Well, I think as both of you recognize, we can 
talk about the Ira Einhorn cases all we want to. Those are the 
rare cases that get the publicity. We're going to hear from 
witnesses in just a few minutes of--in my small county in north 
Georgia--of some four separate murder cases, including a 
driveby shooting at the local Burger King where they fled back 
across the border.
    The problem is the magnitude of the number of cases coming 
out of Mexico. And as you probably will know and these 
prosecutors will tell you, they don't have the resources to 
pursue these cases by way of extradition. And what is the 
process, the Article 4 trial process, whereby everything has to 
be transcribed and shipped to Mexico and they will have a 
trial? And is that a preliminary to even deciding to extradite? 
Do you have to go through that first?
    Mr. Swartz. No. That is the alternative.
    Mr. Deal. That is the alternative, where they don't 
prosecute if we were to decide to let them prosecute. And if we 
let them prosecute, we are bound under double jeopardy 
provisions from ever retrying that individual, even if they 
come back in our country; is that generally true?
    Mr. Swartz. Only California has the prohibition against 
retrial, but our view would be aside from that situation, as 
different sovereigns we could retry the matter.
    Mr. Deal. It is my understanding that Mexico is requiring 
as a condition for proceeding with the Article 4 trial that we 
agree, regardless of what the state law might be in the 
jurisdiction where the crime was committed, that we agree as a 
condition for that going forward that there would be no 
retrial; is that incorrect?
    Mr. Swartz. We would have to check on that.
    Mr. Deal. I am very concerned that the magnitude of this 
problem is such that most local jurisdictions can never handle 
it on their own. Has there been any suggestion that the 
Department of Justice be beefed up in a greater magnitude to 
assist these local jurisdictions who are the primary 
prosecutors in most of these cases, to assist them in 
facilitating extradition requests? A small county would be 
bankrupted. If we were to pursue extradition in just one of the 
four cases, we're going to hear from one of the witnesses in my 
county, it literally would jeopardize the possibility of 
bankrupting my county's treasury to pay for that. Has there 
been any suggestion that Congress needs to do something to 
assist the Justice Department in that regard?
    Mr. Swartz. I am pleased to say that Congress has acted in 
this regard to increase funding for our Office of International 
Affairs which is the critical component in this regard. You 
noted in your opening statement there had been criticism in a 
prior Inspector General's report. I am pleased to say that 
report has now been closed, with the acknowledgment that we 
have made significant changes. And it is largely to my 
colleagues here, the Director of the Office of International 
Affairs, Molly Wurlow, and Mary Rodriguez who handles the 
Mexico account--and I can say handles it really tirelessly--to 
try and push this forward.
    Certainly we are there not simply for Federal cases but for 
State and local cases. As a result of our experience, we have 
tried to think through additional ways in which we can be of 
service to State and local offices and try to expand that 
relationship. As you know, in the past, we have had on occasion 
State and local prosecutors at the Office of International 
Affairs. Funding issues precluded that program from continuing. 
We do have training programs that are open and that we have 
tried to extend to State and local prosecutors. And we are now 
thinking through how we can create a network in the 
jurisdictions that have these cases that communicate with our 
office regularly, where we can keep them updated on these 
    Mr. Deal. Thank you, Mr. Chairman.
    Mr. Souder. Ms. Sanchez.
    Ms. Sanchez. Thank you, Mr. Chairman.
    Obviously the problem that we have been presented with 
today is complex and it again stems from the idea of sovereign 
nations and their proper constitutions and their judicial 
interpretations of those constitutions. And it is a problem, 
clearly, in a number of very serious cases. I just wanted to 
ask for clarification. I am correct in saying that extradition 
in this particular case, the March case, there has been no 
request for extradition? Is that correct?
    Mr. Swartz. That is correct, because we have to work 
through these various issues.
    Ms. Sanchez. So there has not been an official request for 
extradition to the United States for him to stand trial. Short 
of extraditing folks for crimes that carry the maximum 
penalties in the United States, is there a mechanism for 
perhaps extraditing folks to stand trial for crimes that may 
carry a term--consecutive terms of years? Might that not be 
one, albeit not perfect solution, but way to try to increase 
the number of folks that are extradited back to the United 
    Mr. Swartz. Yes, Ms. Sanchez. That has been the process--we 
have been able to succeed with regard to Colombia which 
requires life assurances. We have been imposing lengthy terms 
of years. But again, the problem is in large part driven by the 
nature of the crimes and where State and local governments, or 
even the Federal Government, have no option but to charge a 
death penalty or life imprisonment, it becomes much more 
    That suggests that there may be legislative fixes. There 
are sometimes circumstances in which prosecutors can think 
creatively about a different charging scheme. And as I 
mentioned, in States that have parole, there is also an option 
to say--even with an extremely lengthy sentence, which in 
essence a life sentence--as long as there is the possibility of 
parole, extradition may be possible.
    Ms. Sanchez. So that avenue is available, sort of a 
creative solution to the problem. In terms of our executive 
branch and our President who has the power to negotiate these 
treaties, to your knowledge, is there anything being done by 
our executive branch in the form of President Bush in terms of 
discussions or work through diplomatic means or the Justice 
Department to try to work through this problem with the Mexican 
    Mr. Witten. Secretary Powell and Attorney General Ashcroft 
have discussed this and corresponded about this repeatedly with 
counterparts in Mexico. And Ambassador Garza, as its 
representative to Mexico, has discussed this, as I understand 
it, with everybody from President Fox to the Cabinet officials 
that are the counterparts to our State and Justice Departments.
    Ms. Sanchez. So those discussions are ongoing?
    Mr. Witten. Yes.
    Ms. Sanchez. There has not been an acceptable resolution to 
the problem. Thank you. I yield back the remainder of my time.
    Mr. Souder. Did you say that in Mexico they have the 
ability to do consecutive sentences like Colombia, or they do 
    Mr. Swartz. My understanding is that in Mexico a sentence 
even up to 60 years may be a permissible sentence simply 
because it is not in terms a life sentence.
    Mr. Souder. Can you have multiple sentences?
    Mr. Swartz. I would have to check on that, Mr. Chairman.
    Mr. Souder. Mr. Bell.
    Mr. Bell. Thank you, Mr. Chairman, and thank you all for 
your testimony. Representative Deal was talking about the 
magnitude of the problem. I wanted to get a little firmer 
handle on just what the magnitude is. Actually I was not here, 
I think you all may have talked about the number of cases that 
we face right now. Do you all have that number?
    Mr. Swartz. In Mexico, Mr. Congressman, we have had 25 
fugitives extradited this year--in 2002--which was a record. To 
date we have had 23 extradited. But critically we have had 19 
refusals on the life assurance issue either because we couldn't 
provide the assurance or because the assurance was found to be 
    And as I mentioned in our opening statement, those numbers 
don't totally capture the problem because while the number of 
people extradited has been important and these are important 
cases, some of our most serious cases are among the 19.
    Mr. Bell. And those are just the numbers with Mexico, 
    Mr. Swartz. Correct.
    Mr. Bell. As far as with other countries, France or 
Germany, much smaller numbers?
    Mr. Swartz. That's correct. Overall I believe it has been 
266 fugitives in the last year returned to the United States.
    Mr. Bell. And if you were trying to look at a growth 
pattern for this particular problem, has it gotten worse in 
recent years, more people fleeing, or is it staying fairly 
consistent over the last 5 to 10 years?
    Mr. Witten. The problem--I mean over the years, the problem 
has grown with the growth of transnational crime. With Mexico 
these issues have become blockbuster issues. The extradition of 
multinationals was a huge bilateral issue into the late 
nineties and into this year. And we have had few successes in 
the mid-nineties, for example, in terms of returns of Mexican 
nationals. The January 2001 Supreme Court decision facilitated 
that so we had a bump up in extraditions from Mexico.
    In terms of absolute numbers, in terms of over the years, 
we could certainly put together numbers dating back several 
years at least on the growth of our extradition request. I 
think there has been some growth over each of the last several 
    Mr. Swartz. And as my colleague points out, it is certainly 
the case that as crime is increasingly transnational and as 
crimes can be committed remotely, without entering the United 
States, we fully expect this to be a problem that increases 
rather than decreases.
    Mr. Bell. How long have we been engaged in negotiations 
with the Mexican authorities to try to change their extradition 
    Mr. Witten. Well, it's a continuous process with such a 
busy relationship. As I mentioned, in the nineties--that was 
before this life imprisonment decision came down in January 
2001--a huge amount of our dialog with Mexico dealt with 
Mexican nationals, because they typically would not extradite 
their nationals absent extraordinary circumstances. The Mexican 
Supreme Court liberalized that in January 2001. And the 
executive branch of Mexico now has much greater flexibility 
than it did before that ruling. So now that issue is somewhat 
better and now we have a new, harder issue in a way--not 
harder, but different issue, and that is life imprisonment 
without parole. And it's continuous.
    Mr. Swartz. We have worked with Mexico since the date of 
that decision in October 2001 to try and see what can be done 
about it.
    Mr. Bell. In terms of trying to change the policy, is it 
your opinion that we're on the right track or can greater 
pressure be brought to bear on the Mexican authorities?
    Mr. Witten. Well, the posture now is we can be--it's hard 
to say how optimistic it's realistic to be. We know their 
executive branch is trying to get this October 2001 decision 
revisited. They disagreed with it at the time it came down. 
They argued against it in the pleadings.
    It's hard to tell, Congressman, because as was noted by 
several members of the committee and by us, the Mexican Supreme 
Court is independent of the executive branch. They interpret 
the Constitution. It's not merely a matter of interpreting an 
act of their legislature. They interpret the Constitution in a 
way that is not favorable to extradition of life imprisonment 
without parole. So our hope is that the Supreme Court accepts 
the executive branch's ruling. And right now we're in a wait-
and-see period. And in the meantime, Mr. Swartz and his many 
colleagues at Justice are working with Federal and State 
prosecutors to cope and do the best we can until the situation 
is clarified.
    Mr. Swartz. Even if the decision at the Supreme Court 
proves to be unfavorable, as Mr. Witten noted, we will try and 
find alternatives. But we recognize in the context of 
extradition of nationals that it's an issue that we will 
continue to push. Even in countries--with all due respect to 
their sovereignty--that have Constitutional bars on extraditing 
of nationals, we continue to present in a manner we believe 
respects their system, the importance of moving forward on 
that, and we will continue to press the importance of this 
    Mr. Bell. Basically since it's a court decision in Mexico 
and not a political decision in Mexico, it's very difficult to 
bring pressure to bear and get them to change the decision. 
They're going to have to work it through their court system; is 
that correct?
    Mr. Swartz. That's correct.
    Mr. Souder. It's important for the record to point out that 
the 19 cases, while very severe, is nothing. In other words, 
the Los Angeles--as I pointed out, the Los Angeles District 
Attorney's Office says he has 200 murder suspects that have 
fled to Mexico. Doesn't mean that they are pending extradition, 
but it does mean, in fact, people are increasingly realizing 
that the lack of extradition means that it is relatively safe 
to kill policemen in the United States and relatively safe if 
they can get across the border.
    This committee has held multiple hearings on the southern 
border. Congressman Deal and I spent 3\1/2\ days on the Texas 
border. And we could see all kinds of groups moving back and 
forth, the water littered with inner tubes where people had 
stacked up as people moving back and forth across the border. 
When we did a hearing in southern Arizona, you could see 
multiple groups, totally unintimidated by the Border Patrol, 
walking back and forth across the border. One guy had done it 
two times a year for 8 years, probably walking to a job in 
Indiana, because we really haven't worked out our legal 
residency type things. But our borders are extremely porous. 
And if indeed people can figure out that they aren't going to 
be held accountable and even put in prison in these other 
countries if no request has been made, that we have a gigantic 
    Furthermore, this committee has been told by multiple 
prosecutors, in addition to the Los Angeles District Attorney, 
that they don't bring it up anymore, because as Congressman 
Deal pointed out, in Georgia that case probably isn't showing 
up as an extradition case because they know nothing is going to 
    Then we have this double standard that if an American 
citizen kills a policeman, if an American citizen does 
something, they have a totally different legal standard in 
America, that if you can somehow get to Mexico afterwards--
which is unfair to those who actually try to become legal 
residents in the United States, become American citizens, it 
means their liability is different than somebody else.
    And this is a huge dilemma. Because if in fact these 
nations don't change some of these extradition policies, what 
it means is we have to watch our border going both directions, 
because we will have no choice down by Los Angeles or in other 
parts but to look at the people going back the other direction 
to make sure they aren't fleeing crimes in the United States. 
And if they're not on a watch list in the United States, then 
we have a double border problem, because we can take action 
here in the United States if in fact we can't work it out with 
other countries, but it would cripple our economy to do so.
    And both of us need to understand, the United States and 
Mexico, that we have an incentive to try to work these policies 
out whether or not it's in the Constitution or whether or not 
some judge decided something, because our nations are so 
interactive right now, particularly along in the border. But in 
Indiana or Georgia, we wouldn't have our industries functioning 
if we didn't have some kind of flexible border.
    But to the degree that people think they can commit 
terrorist acts in the United States and kill American citizens 
and somehow get off just because of this lack of an extradition 
treaty, we have a huge problem. This isn't just a little 
problem; because, as we are increasingly finding, some of the 
terrorist risk people are also moving through the Bahamas, 
Mexico, and other places where we don't have as much Border 
Patrol as we have at our airports or other things like that.
    Mr. Swartz. Mr. Chairman, I couldn't agree more. This is a 
tremendous problem. And as you say, the 19 doesn't fully 
capture in terms of the number of cases, many of which have not 
been brought. We have more than 300 extradition cases. But 
beyond that, as you note, in many circumstances the decision 
has been made that it does not make any sense to try to seek 
extradition at this time. Perhaps we will locate the individual 
back in the United States or there will be some other means of 
obtaining the defendant.
    But we have, exactly along the lines you suggested, pressed 
with Mexico that they do not themselves want to become a safe 
haven for these individuals because these people will be 
committing crimes in Mexico as well. I think our executive 
branch counterparts recognize that. But as we've discussed 
earlier, it's one of the issues we'll continue to press, no 
matter how the Supreme Court decides this issue in Mexico.
    Mr. Souder. Any other questions or comments? Mr. Deal, do 
you have any?
    Mr. Deal. Yes, Mr. Chairman. I did not want us to leave the 
impression that the response to Mr. Bell's question of the 25 
that were extradited is anywhere close to the number. And I 
believe you indicated just a minute ago you had some 300 
extradition requests. You obviously have made significant 
progress because the IG report of 2002 indicated there were 
2,500 outstanding extradition cases. Am I to understand that 
you have now eliminated that 2,500 number down significantly?
    Mr. Swartz. One of the things we have done in terms of 
responding to the Inspector General's report was to go through 
the various outstanding cases, not just for Mexico but for all 
of our countries, to try and eliminate cases that no longer 
seemed to be in any way a request for extradition or in which 
we no longer had reason to believe the individual was even in 
the country. This is our best estimate of now pending live 
extradition cases with Mexico, 303--2,500 for the entire world; 
300 with Mexico.
    Mr. Deal. Does any other country come close to having the 
number of 300?
    Mr. Swartz. Colombia is the only other country that comes 
    Mr. Deal. But they are more cooperative.
    Mr. Swartz. They are cooperative in large part because so 
far, at least with one or two current issues, we have been able 
to structure the sentences in a manner that meets their request 
for life assurances.
    Mr. Deal. Now, it would seem to me that since the 
Department of State has the jurisdiction in dealing with other 
countries, do we give any consideration in negotiating any 
other agreements with other countries as to whether or not 
their extradition treaties are favorable or unfavorable to us? 
For example, with regard to establishing quotas for a number of 
their citizens that are allowed into our country, is the fact 
that they are cooperative or uncooperative a factor in those 
    Mr. Witten. I think there are a couple of parts to that 
question. One is the direct link between extradition and other 
aspects of the relationship. The other is--let me start with a 
different part of it, sir. Extradition is one part, as Mr. 
Swartz has mentioned, of the overall relationship with Mexico. 
We have cooperation that is hampered, hopefully just for the 
time being, with Mexico. They are cooperating in other matters, 
investigations, prosecutions and information sharing on other 
    So one aspect of the question would be is extradition--and 
the problem that we're currently having on life imprisonment, 
does that so taint the entire law enforcement relationship that 
we would say that the law enforcement relationship is so 
crippled that you take it to the next step: Would the law 
enforcement relationship relate to other issues, be they 
economic issues trade matters, other immigration matters? And I 
don't think we are at that point.
    We have clearly a serious problem in this part of our 
relationship. We're working on that problem in the way there 
are other issues in the Mexican relationship that are beyond my 
personal ability to discuss with you in any depth, that we are 
also working on. It's a complicated relationship. It's a long 
border. We have a lot of issues that need to be sorted out.
    Mr. Deal. On a somewhat related issue, have there ever been 
discussions about requiring nations to compensate each other 
for the incarceration of their own nationals within the prison 
system of another country? I think all of us know that on our 
domestic side, a huge number of those who are in our Federal 
prison system as well as in our State prison systems are 
citizens of other countries, and they consume a huge amount of 
revenue to keep them in our prison systems. Do we have any 
system whereby we ask for reimbursement from other countries 
based on the number of their citizens that are incarcerated in 
our prison systems?
    Mr. Witten. Sir, as you probably know, we have prisoner 
transfer treaties with Mexico and a few other countries. There 
are a dozen relationships like this around the world where if 
the two countries agree, the person can serve the sentence in 
their country of nationality. And we do have Americans returned 
pursuant to these treaties. We sent nationals of foreign 
countries back to their homes in appropriate cases.
    Mr. Deal. If you could furnish us with information as to 
the number of those cases and the countries involved in that.
    Mr. Witten. That shouldn't be a problem. The criminal 
division of the Justice Department administers the program, but 
certainly we will give you information on the network of 
treaties and how they work.
    Mr. Deal. That's simply a matter of once they have been 
convicted in the country, transferring them back to their 
native country.
    Mr. Witten. That is a part of your question. It's sort of 
the quantity of people from other countries in our prison 
systems. In terms of compensation, there's no international 
agreement scheme for that, and I am not aware that we pay 
compensation or receive compensation for the costs associated 
with the custody of fugitives.
    Mr. Deal. It is one of the largest unfunded mandates faced 
by States and local governments for the failure of the Federal 
Government to enforce its immigration laws. That is a huge cost 
factor to local and State governments.
    Mr. Swartz. To the extent we can work with any State or 
local government in that regard, we do, as Mr. Witten 
suggested, have an international prisoner transfer unit in the 
Department of Justice that deals with these issues to try to 
make sure that countries bear the cost of their own criminals 
and to secure the return of U.S. citizens to serve their 
sentences here.
    Ms. Sanchez. I have a few followup questions and I will try 
to be brief. Aside from extraditing suspects to the United 
States or using the creative charging process in prosecuting 
these individuals, what other remedies are available for trying 
to bring these individuals to justice? And I am referring 
specifically to efforts within the countries to which they fled 
to perhaps try them and convict them and get them to serve a 
term of years in those countries.
    Mr. Swartz. Congresswoman, as many countries do have a 
system in place that allows the possibility of trial of the 
individuals in that country under some circumstances--Mexico 
has such a system--the results have varied in terms of whether 
or not they have been considered to be successful or not. It's 
usually a difficult task to secure convictions in those cases. 
It involves the Federal, State or local prosecutor in 
presenting evidence in a remote location, oftentimes under 
different rules.
    So wherever possible, our argument has been--and it's been 
key to extradition--that the individual should be tried and 
sentenced in the jurisdiction in which the crime has been 
committed. There are other alternatives, though, as you 
suggest. We certainly sought deportation whenever possible, and 
some countries have been willing to work with the United 
States, in the absence of extradition treaties or in the 
absence of deportation circumstances, to return or to make 
individuals available to us. So we try to consider every 
alternative in every case.
    Ms. Sanchez. But that definitely is one of the options.
    Mr. Swartz. That is one of the alternatives that is 
    Ms. Sanchez. And I want to clarify yet again. Obviously, 
there have been discussions among our government and the 
executive branch of the Mexico Government, who it appears to 
me--and I want your confirmation of this--seem to be motivated 
to try and address this problem.
    My question is do you sense a reluctance on the part of the 
executive branch who seems to be hampered by the independent 
judicial interpretation of the constitution? Would you 
characterize it as a reluctance on Mexico's part to try to 
address this problem? Because I want to make sure that we're 
clear with what efforts are being made on the Mexican 
Government's part.
    Mr. Swartz. The executive branch argued against this 
decision before it was rendered and in fact, I believe, thought 
that we would prevail on this issue. From the Department of 
Justice point of view, we have not seen a reluctance to raise 
this issue. I think that Mexico, on the executive side, 
recognizes the importance of this issue to the United States 
and recognizes the danger it poses to the people of Mexico by 
having these fugitives consider Mexico to be a safe haven. 
Regardless of their recognition, it remains a serious problem 
for the United States.
    Mr. Witten. Our embassy is working closely with the Mexican 
executive branch. And I just want to echo Mr. Swartz's comments 
that we do see a high level of motivation and cooperation, and 
we're hoping this works out in a correct way.
    Ms. Sanchez. Thank you.
    Mr. Souder. Is the Mexican executive branch at all--have 
you been able to pursue, or is there any legal ability to 
pursue if an extradition request is made but is held up for 
some reason, like through the courts, that they would put the 
person in their prison?
    Mr. Swartz. In some circumstances we request provisional 
arrest of the individual pending extradition. We would hope in 
the normal set of circumstances that individual would be held 
pending extradition, but that doesn't always take place.
    Mr. Souder. Wouldn't the executive branch have the ability 
to impose an up-to-60-year sentence if it would be the 
equivalent in the United States? Are there options for the 
executive branch to work around in their domestic side if we 
can't resolve in the court?
    Mr. Swartz. That would involve a prosecution internally 
within Mexico under Article 4 or otherwise, which might present 
other issues. But there are certainly alternatives if we in the 
United States are willing to go that route.
    Mr. Souder. If their court blocks us, we have a big 
problem. We either have to do something at the border or have a 
legislative solution.
    Mr. Swartz. I fully agree. If the court blocks us, we need 
to think of some robust solution to this issue that allows us 
to deal with it, not only case by case, but pass a plan to deal 
with it.
    Mr. Souder. One last question before we move to the next 
panel. On the Colombia question, this committee--because of 
narcotics focus, obviously, in addition to the many cases in 
Mexico but particularly with Colombia--we want to make sure we 
are kept informed on the extradition cases.
    Last night when we met with President Uribe in bipartisan 
leadership, there was a lot of consternation about the immense 
difficulty when they are trying to negotiate peace treaties 
with narco terrorists and particularly some of the paramilitary 
leaders who are wanted on various serious charges in the United 
States, can they in fact forgive those if they lay down their 
arms? And this is another type of a realm, because in fact our 
death penalty and penalties here has been one of the biggest 
leverages we have in the battle in Colombia, because they are 
so afraid of coming to the American judicial system.
    On the other hand, we have to continue to make it clear to 
Colombia that it does not mean all of a sudden we are going to 
waive our American justice system because they have made a 
guess at best that this person is going to cooperate for 
awhile. And I think that President Uribe got that message last 
night. And everybody listened to his dilemma that he's facing 
in his country, but there is not a lot of patience when people 
have been major narcotics dealers that have resulted in 
thousands of deaths in the United States and around the world 
that suddenly this is going to be waived. And I hope you will 
continue to take that message back.
    Mr. Swartz. Thank you. We will take that message back.
    Mr. Souder. Thank you for being with us. We will probably 
have additional written questions that we will send over in the 
next few days. Thank you.
    The second panel would now come forward and remain 
standing. The Honorable James Fox, District Attorney, San Mateo 
County California, representing the National District Attorneys 
Association; the Honorable Daniel J. Porter, District Attorney, 
Gwinnett Judicial Circuit, Georgia; Ms. Teri March, widow of 
Los Angeles County California Deputy Sheriff David March.
    [Witnesses sworn.]
    Mr. Souder. Let the record show that each witness responded 
in the affirmative, and appreciate you coming today and sharing 
your testimony with this committee and being willing to be 
subjected to our questioning.
    We are going to start with Mr. Fox. You are recognized for 
your opening statement.

                      SHERIFF DAVID MARCH

    Mr. Fox. Thank you, Mr. Chairman and members of the 
committee. My name is Jim Fox. I am the elected prosecutor for 
the county of San Mateo in California, a position I have held 
for the past 21 years. I am vice president of the National 
District Attorneys Association. And on behalf of that 
Association, I would like to express our gratitude for being 
invited to share our comments with you today.
    Up until the end of the last century, international issues 
really were not of much concern with local prosecutors. 
Obviously our country and our world have changed. My county 
alone, I have three international airports within 25 miles of 
my office. San Francisco International Airport is located 
within my county. And so obviously the ability to travel 
internationally has been tremendously increased. We are no 
longer relegated to traveling by ship, and people can commit 
crimes and be out of the country before the tape is even up 
around the crime scene.
    We have also, obviously, lengthy international borders with 
both Mexico and Canada and people are relatively free to cross 
those. So these are areas of concern.
    The idea of citizenship has changed also. As you have 
heard, there is a concept of dual citizenship. I myself am a 
first generation American. Our youngest son has dual 
citizenship with Ireland. That is something that is expanding. 
In fact just this past week, the Philippine Government has 
reestablished dual citizenship and is readmitting to 
citizenship some of their former citizens who had become U.S. 
citizens. Our country is incredibly diverse and we have one of 
the largest Philippine communities in our county outside the 
Philippines. Daly City is approximately 50 percent Filipino.
    We try to protect our citizens and the concept of justice 
obviously varies from country to country. You have heard 
extensive comments already. What I would like to talk about is 
what has occurred specifically in our county as a result, 
perhaps, or maybe it was unrelated to the October 2001 decision 
of the Mexican Supreme Court. In January, 3 months after that 
decision, two Mexican citizens and two U.S. citizens 
participated in a quadruple homicide in our county. It was drug 
related. They basically executed four Mexican citizens. The two 
citizens of the United States have been apprehended. One was 17 
years of age. He is being prosecuted as an adult. The other was 
21 years of age. They are both facing life without the 
possibility of parole for a multiple homicide.
    The two people who fled to Mexico, including the ring 
leader, the one who orchestrated the whole thing, have 
basically acquired immunity now. The ring leader was 
apprehended in Sinaloa in April of this year and we were 
informed only if we were willing to waive the sentence that is 
provided for by California law would we ever be able to see 
this individual back to receive justice in California. Well, 
frankly, I think that's a serious question of equal protection. 
Why should U.S. citizens who have been apprehended in our 
country face a more severe penalty, life without the 
possibility of parole, than the ring leader who orchestrated 
the whole thing to receive a determinant sentence? I don't 
think that's fair. So we chose not to pursue extradition and in 
fact that individual is now living free in Senaloa. And if the 
Mexican Government wishes to allow people to flee there, I 
guess that's something over which we really don't have too much 
    But the concern that I have is that Mexico does allow 
extradition for a determinant sentence. And what I am 
suggesting to you is that every peace officer in the United 
States is at significant risk because of that policy. If an 
individual in our county committed an armed robbery and used a 
firearm, they would be facing a determinant sentence of up to 
15 years. If they got to Mexico, Mexico could and would 
extradite for the robbery. If, however, they were fleeing to 
Mexico and an officer stopped them, that person has every 
incentive to execute the police officer, because he will then 
have immunity once he arrives in Mexico. So I think that it's 
an intolerable situation.
    I would suggest that there are some things that could be 
considered, including in any future extradition agreements, 
inclusion of a full faith and credit provision. Obviously, for 
those countries that do not believe or do not recognize the 
death penalty, that is certainly something that could be 
conditioned as a waiver of the extradition, or pursuing the 
extradition, that we would not seek the death penalty. But 
frankly, I don't think it's fair to our citizens to have to 
negotiate and say that we will give you a 30-year term so you 
can come back. Whereas our citizens are facing life without the 
possibility of parole.
    I know there had been a position within the Department of 
Justice, a liaison position, and we encourage that to be 
reestablished because it does provide assistance. And we are 
hoping there would be some efforts to provide training for 
local prosecutors in these issues because they are significant 
and they are complex.
    On behalf of the local prosecutors of the United States, I 
would like to thank you very much for allowing us to share our 
comments. And we look forward to working with you, the State 
Department, and the Department of Justice.
    Mr. Souder. Thank you and your full statement will be in 
the record and any additional materials you want to submit from 
your Association.
    [The prepared statement of Mr. Fox follows:]

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    Mr. Souder. Mr. Porter.
    Mr. Porter. My name is Danny Porter. Normally I don't need 
a mic, given my voice, but I am the district attorney of 
Gwinnett County, GA, which is a suburban county on the 
northeast side of Atlanta. I think the reason that I'm here is 
that I was asked to be--given the nature of my county in the 
year 2000, our immigrant population was really not even 
countable on the census, or, excuse me, the 1990 census.
    In the 10 years since 1990, Gwinnett County holds the 
distinction of having the largest immigrant population in 
Georgia which is one of the fastest States in population growth 
of the immigrant population. We are also the adjoining county 
to Congressman Deal's county of Hall County.
    I am here to echo the things that Mr. Fox has said. I don't 
normally have the luxury of looking at things from the 
international scope. I am usually too busy dealing with victims 
of violent crime and explaining to them the intricacies of 
international extradition and why we cannot bring the person 
who executed their loved one or hurt their loved one back to 
this country to face justice. That is not to say we haven't had 
successes. There are countries that have like minds and systems 
that will work with the United States to prevent injustices, 
and I think it's important that we put some of those examples 
on the record and make this just not a hearing of condemnation.
    A year ago, a minister on Grand Cayman Island, a music 
minister, applied at a church and gave a false application. One 
of the church members looked and became suspicious of the 
person--of the minister--and looked on the Internet and found 
local articles from a Gwinnett County newspaper where that 
person was charged with child abduction, where he had left with 
the mother of the child stealing those children from the 
custodial parent and fled and was being searched for. That was 
identified as the prospective music minister. The Cayman Island 
authorities moved swiftly to secure the safety of those 
children, to secure hearings. And with the cooperation of the 
State Department and the work of the State Department, my 
office was able to bring those children back and reunite them 
with their custodial parent. I am confident without the efforts 
of the Government of the Cayman Islands, those children would 
have disappeared again and we would have had another year-long 
or 2-year-long search for those children.
    So there are successes. Canada, for instance, is one of 
those countries that will move swiftly in child custody issues 
and return children to their custodial parents, but Canada 
won't extradite telemarketers. So the international field of 
extradition is a mine field for local prosecutors. I think one 
of the growing problems is the problem that has been addressed 
in this hearing, and that is the problem of our relationship 
with Mexico. And I think one of the things that the committee 
has to realize is that part of that problem is, for instance, 
in the examples that are given in my written testimony. I would 
like to throw those out just a little bit.
    It somehow is very difficult for a local prosecutor to 
accept that in the Toombs County murder where that defendant 
killed two persons, was tried and acquitted in an Article 4 
hearing, he is now a booking officer in a Mexican prison. It is 
somehow difficult to accept that a person who would commit 
murder in our country is now part of the judicial system in 
Mexico. It is difficult to accept that a person that I have to 
make a decision where my defendant clearly murdered in front of 
four eye witnesses another Mexican citizen, fled to Mexico, and 
I have had to make the decision I am more likely to catch him 
in Gwinnett County than I am to get him out of Mexico in the 
judicial process.
    It is very difficult as a local prosecutor to accept that 
people are doing driveby shootings in neighboring counties, in 
Congressman Deal's county, fleeing; and we as prosecutors 
simply have to make the decision we are more likely to catch 
them in the United States and bring them to justice than to 
successfully bring them back from Mexico.
    Even though there are clearly countries where we have a 
cooperative relationship, where international extradition can 
be a success, the problem with Mexico is growing. The problem 
with Mexico is presenting a burden on the local level. And we 
as prosecutors have to bring that not only to your attention, 
but we have to ask for your help in training. I can tell you 
the first time you ever have to do as a local prosecutor--the 
first time you ever have to fill out the paperwork it begins, 
and your education begins, and I don't think prosecutors should 
have to fall in holes to learn. They should be taught. We 
should have more input into decisions that are made at the 
State Department level that have to do with our local cases and 
our local concerns, and I think those are things Congress can 
do something about.
    Thank you on behalf of the working prosecutors, not that 
Mr. Fox is not, but I am here to represent the 
nonorganizational prosecutor. Thank you.
    [The prepared statement of Mr. Porter follows:]

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    Mr. Souder. Ms. March. We appreciate you have come today 
and we extend our sympathy to you. Your husband died, like many 
other police officers around the country, trying to protect the 
rest of us, and we appreciate your willingness as a spouse to 
go through the sacrifices day to day, in addition to the 
ultimate sacrifice, so American citizens can be safe. You are 
going to get a national forum which in his memory raises some 
of the concerns that you have been expressing over time.
    Mrs. March. Thank you very much for giving me the privilege 
to come here today. I think it is very important that we 
remember that I am a real person. David's job and the oath that 
he took was real. Armando Garcia and his evil acts are real, 
and the safety of our community and the threat of it is real.
    Imagine hearing that your husband was shot and killed. You 
have to now plan your life for a future that wasn't in the 
plans when you decided to get married. And then to hear that 
there's not a lot that can be done. I heard that his killer 
fled. I said OK. I know the great honors that I saw when they 
buried my husband, everything from folding a flag to a fly 
over. So I thought everybody was on my side to see this man 
pay. They said that he had fled, and I thought we were going to 
turn every rock over and find him. I later found out on the day 
Dave was buried, we knew where Armando Garcia was. And then I 
was introduced to words I never heard of, ``treaties,'' 
``Article 4s,'' ``corruption,'' ``bounty hunters.'' I didn't 
understand. All I knew is that I had a dead husband and a 
daughter to raise by myself.
    When I learned of his criminal activity prior to my 
husband's killing, I can understand why this guy did this, and 
I feel like our system let him do it. He was deported three 
different times for various drugs, concealing a weapon, and 
other various things. This perpetrator has been doing crime 
since youth. Prior to my husband's murder this gentleman, for 
lack of better words, tried to kill two other people, and our 
system just sent him back. They deport him. No punishment is 
given, and he gets a little more brazen when he comes back.
    My husband made a traffic stop at 10:30 a.m., this man 
didn't want to have his freedom taken away. In a split second 
he took my husband's life. He shot him in the chest, started to 
walk away, and came back and executed him in order to finish 
the job. That man is free. This man can kill again. This man 
has said, I have killed one and I will kill more. I know that 
our Sheriff's Department has gone to great lengths trying to 
lure, trying to trick and trying to bring him back. Yes, we 
have not filed for extradition. Would you trust Mexico? Would 
you trust that they would do the right thing? I don't speak the 
language. I don't get to testify. The witnesses don't get to 
testify except on paper.
    I want to see the eyes of the man that did this. I want to 
see if he has any ounce of remorse. I want to know why. I 
deserve to know why. You can put him away now. It is very 
frustrating. Mexico has tried to work with me and wanting me to 
go with an Article 4. Article 4 means he gets prosecuted down 
there, and I cross my fingers that justice will prevail.
    However, I have heard of horror stories. I have heard of 
weekends in jail. I have heard of the injustice. I think 
Mexico's completely jeopardizing and compromising our justice 
system. If we give into Mexico and say OK, Mexico, do us right, 
and they let us down, what are we saying to our law 
enforcement? They are putting their lives on the line for us. 
They take that badge and that oath so seriously, just as you 
do. It is such an injustice what's happened, and it's a slap in 
the face to me, it's a slap in the face to what my husband 
stood for, and it's a slap in the face to law enforcement.
    Our law enforcement need to know that we stand behind them 
110 percent. We don't want this country to get more corrupt 
because we don't stand behind our men and women who take the 
oath to protect us. I feel it's only fair that justice is here. 
This individual chose to leave Mexico, reside here in 
California and take a life in California. He took my personal 
hero, and I want to see him pay. I want him to be able to make 
a phone call and see that he's in jail. I personally don't know 
how to feel about the death penalty or life in prison. I just 
know I don't want him to kill anymore, and his freedom allows 
that right now.
    We do have a petition in place that is organized by the 
COPS organization, Concerns Of Police Survivors, pleading with 
the Bush administration to acknowledge this problem that we 
have. I have 6,000 signatures currently, and I know there's 
going to be more to come. We don't want to see our police 
officers die and then go unpunished by giving them a reward for 
going to Mexico. We want to tell all criminals that you will 
pay and we will go to the fullest length of the law to see that 
justice will be done.
    I thank you very much. I am going to stay strong and I'm 
going to keep going out there and keep telling people what's 
wrong with our system. In the meantime the only thing is that I 
have advertised how to get away with murder. Please help me 
change that, because I won't stop talking.
    Mr. Souder. Thank you for putting a human face directly on 
the problem.
    [The prepared statement of Mrs. March follows:]

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    Mr. Souder. We hear stories, and one of the things that's 
frustrating as a Congressman, you feel like Mr. Porter said, 
not necessarily focused a lot on the international problems. 
Sometimes it feels like we are trying to deal with 
international problems in the big picture and miss the human 
side of the cases that you deal with every day. And I think one 
of the things that is important is to try to marry those two 
things so we don't forget the human side. And also we realize 
these things are incredibly complicated and difficult to work 
    One question I had for Mr. Fox and Mr. Porter. Have you had 
any successful cases of working with Mexico in an extradition 
that you know of?
    Mr. Fox. Mr. Chairman, there had been a few cases where we 
did pursue the Article 4, but frankly those were cases that 
were problematic at best in terms of the witnesses and whether 
or not we felt that we would really be able to pursue it. There 
were cases where Mexican citizens had been killed by Mexicans 
in our county and they were interested in doing the Article 4 
and we acquiesced. But frankly, that is a rarity because I do 
not have that much confidence that even if there were to be a 
conviction that there would be a sentence anywhere near what 
California law provides for.
    I would also like to expand a little bit--I know 
Congresswoman Sanchez asked about the determinant sentencing. 
In California we have indeterminate sentencing for second 
degree murder, first degree murder; and then for first degree 
murder with special circumstances, that is life without the 
possibility of parole. Second degree murder is a sentence of 15 
years to life. There is no way for us to get a murder 
conviction. We can call it a manslaughter but the maximum 
penalty for manslaughter is 11 years. So there are significant 
issues in terms of trying to formulate a solution to the 
problem so we can come up with a determinant sentence.
    Mr. Souder. And 11 years could be parole.
    Mr. Fox. Eleven years is the maximum term. They would get 
out after having served 85 percent of that. They then would be 
paroled but could only return for a year. It depends on how the 
manslaughter was accomplished. If they used a firearm, then 
there would be additional enhancements imposed.
    Mr. Souder. Mr. Porter, do you have any experiences of any 
successful cases; and another way to say that would be if you 
did have any experiences--Ms. March raised a very difficult 
question. And that is if, in fact, they are even convicted, do 
they get not only a reduced sentence but dramatically reduced 
    Mr. Porter. I never had a case successfully extradited from 
Mexico to the United States to face charges. I had one case 
prior to the October decision in which--prior to the life 
sentence question, where Mexican authorities refused to 
extradite a woman who was a party to a gang murder that 
occurred in October 2000 in Gwinnett County, or 1999, basically 
refused to extradite. We went through the process but they 
would not extradite her. They said she was not significantly 
involved in the murder. They essentially made a guilt/innocence 
decision in the extradition hearing and would not bring her 
    The most recent case that I have mentioned is the Pinion 
case. That defendant is currently in jail for rape in Mexico 
and they are moving forward with their charges, although the 
legal office in Mexico City say they expect those charges to be 
dropped. The Mexicans are willing to do an Article 4 hearing on 
him but will not extradite him. And I made the decision that I 
am not going to pay the $10,000 to translate my case to go 
through the Article 4 hearing. So I guess being a lawyer, I 
answered that in more words than I had to, but the answer is I 
never had a successful extradition.
    Mr. Souder. When you talk about you had one case that 
didn't go well and you made another decision, what kind of 
network, through your Association and others, does this spread 
through district attorneys through the country that don't waste 
the time or $10,000? Is there a pretty avid network?
    Mr. Porter. Mr. Fox is vice president of the national 
organization. He could probably address the national network. I 
can tell you that Georgia district attorneys meet four times a 
year as a group. We trade examples that are basically outlined 
in my testimony that are all from Georgia. And I can tell you 
that I got six pending murder warrants against Mexican 
citizens, that I have no idea where those people are. The best 
information we have is they fled back to Mexico, and I have no 
expectations of being able to successfully bring them out of 
Mexico. My best hope is they will be captured in the United 
States. At this point I can tell you--our best information is 
they fled to Mexico.
    Mr. Souder. You are hoping they return.
    Mr. Porter. I am hoping they return.
    Mr. Fox. I am active in our State association. California 
is fortunate is that we do adjoin Mexico. The Attorney 
General's Office in our State does have full-time people who 
liaison with the Mexican justice people. What you have heard 
today, the biggest problem was not created by the executive 
branch but by the judicial branch.
    The National District Attorneys Association has discussed 
this at some length because it is a matter of concern for all 
prosecutors across the country. It is not unique just to 
California or to the border States.
    Mr. Souder. Ms. Sanchez.
    Ms. Sanchez. Just a couple of comments on some brief 
    Mr. Fox, I don't disagree with you on the determinate 
sentences; I am very well aware of that. It's frustrating for 
me as a Member of Congress to sit here and understand that our 
system is failing us, that there are these problems with 
extradition. It's very clear from the testimony of Mrs. March 
what the real human cost is. And there is not a person up here 
that disagrees that you deserve to see justice served in this 
case. I want you to know that. The problem is we are looking at 
a flawed system, albeit something that we have very little 
control over, and trying to think of creative ways to work 
around that.
    So my question with respect to trying to extradite instead 
of--for crimes that serve the maximum penalty, which would be 
the death penalty or life in prison, trying to find creative 
ways that we can at least bring those individuals to some type 
of justice, albeit imperfect justice, in the United States so 
that they do serve their time.
    And Mrs. March, I just really want to thank for your 
presence and your courage here today, because you help 
highlight, obviously, what is becoming an increasing problem, 
again not just among the border States but among all of the 
States, the United States. Your testimony here is invaluable 
because it will help further highlight that problem and 
hopefully bring about some type of discussion that can prove to 
be fruitful in the future.
    And, again, I just want to reemphasize this, because I 
don't want people to get the misperception that the Mexican 
Government, because of a lack of will on their part, is 
allowing this to happen. It appears to me that they are trying 
to work with law enforcement, they are trying to do the right 
thing, but they again are hampered by an independent judiciary 
branch that has made a Constitutional interpretation that 
pretty much ties their hands. And I just want to reemphasize 
the point that it appears that they are trying to be as 
cooperative as they are, and as imperfect as it is, you know, 
hopefully there may be something that can be done, either 
through revisiting of their judicial interpretation or through 
other means, to try to make sure that folks like Mrs. March 
have their day in court and have the right to see the accused 
answer for their actions and serve time for their crimes.
    So I just want to thank all of you for being here this 
morning and providing your testimony.
    Mr. Porter. Congresswoman, if I might in response to your 
statement, is I think that makes it more important that this 
Congress act to fund those positions within the State 
Department and within the Justice Department so that American 
interests can be represented in these courts of foreign 
countries in similar-type legal proceedings as the amicus brief 
that's filed by different organizations in different cases. It 
is not unusual for foreign governments, particularly in death 
penalty cases, to file pleadings in those hearings. We should 
be doing the same. We should be in Mexican courts fighting for 
the decisions that we want on an amicus basis. And I think Mr. 
Fox agrees with that.
    Mr. Fox. Absolutely.
    Mr. Porter. And we can only do that through the Justice 
Department and the State Department.
    Ms. Sanchez. Your point is well taken.
    Mr. Souder. I wanted to tell Mrs. March, too, that we will 
submit your full statement and supporting records in the 
record, because you have detailed in addition multiple cases 
that I asked earlier, dating back, by the way, to 19--it looks 
like 79--in the one group of cases, and Senator Feinstein's 
letter also has cases that go back into the eighties. And while 
the court has certainly complicated matters for the new 
administration in Mexico, which has made--President Zedillo's 
and President Fox's administration's made more progress in the 
judicial system than many, many decades before that. 
Nevertheless, all the regional corruption that is around it in 
different parts, and they have--intimidation that has occurred 
to their attorney generals over the years, it is not just a new 
problem, it's been systemic.
    But we also have to recognize that, like Congresswoman 
Sanchez is saying, that this particular government is making 
progress; it's just really slow now that the court has set them 
back again, and we have to figure out where we can bring the 
maximum amount of pressure to bear. And your testimony today is 
really helping to do that.
    I want to thank Mr. Deal, who really brought this 
committee's attention, as vice chairman of the committee. This 
is one of the issues he wanted to focus on, and I will now 
yield to him for some additional questions.
    Mr. Deal. Thank you, Mr. Chairman. And I too want to thank 
this panel for your attendance. And Ms. March, I thank you 
personally because I know this is difficult for you to have to 
relive this situation. Unfortunately, it is bad cases such as 
yours that sometimes call the American people's attention to a 
problem, and that it is of a magnitude that requires that the 
problem be addressed. And that's the purpose of this hearing 
today. And I thank you.
    And I also want to thank the COPS organization that you 
referred to for their efforts. I think that is the only way 
that we educate the American public to the magnitude and the 
degree of severity that this problem presents to our citizens.
    And to Mr. Fox and to Mr. Porter, thank you both not only 
for being here but for what you do every day and trying to 
uphold the laws of our country and of our States. You do a 
tremendous job. And Mr. Porter is a neighbor of mine, and I do 
have a portion of the county that he serves in now. And he does 
work with my son, who is the district attorney in our home 
county, and so I get firsthand information as to the degree of 
these problems.
    And I think it's important that we point out that from a 
prosecutor's standpoint, there are several options that they 
choose, and extradition is probably the very last option that 
they choose. Unfortunately, the option that many of them 
choose, and unfortunately it is in the most severe cases, it is 
that alluded to by Mr. Porter: We will take our chances that we 
will catch him back in the United States, get him on our home 
    Now, the other option, one of them, has also been alluded 
to, is that they will defer prosecution in lieu of deportation. 
Unfortunately, as in the case of the perpetrator in the March 
case, deportation is not a permanent solution. Our borders are 
so porous, we do such a poor job in being able to apprehend 
those who come across illegally, that deportation simply means 
in some of those cases a way to avoid punishment in the United 
States, to go home temporarily and then to return immediately 
back to our soil. None of those are good solutions. And it all 
goes back to the fact that we are in a situation where, in Mr. 
Fox's testimony directly and in the March case in particular, 
we have created and Mexico has created an incentive to kill 
police officers, an incentive to not just burglarize the home, 
but if they show up while you are there, kill them because you 
might get sent back if all you are guilty of is burglary; but 
if you kill them, your chances of getting sent back and charged 
in the United States are almost nothing. Now, nothing could be 
a worse signal to our neighbor to the south nor to the world 
for us to allow that condition to continue.
    As you heard in my opening statement, I made reference to a 
suggestion that I think we should seriously pursue--and I know 
that this is going to require decisionmaking at a level far 
above that of this subcommittee. But I think there is a reason 
to make a distinction when we relate country to country to 
those citizens who have left our country legally and gone to 
another country that has screened them and said, yes, we will 
let you in, and vice versa. Here the tragedy is that in most of 
the cases of which I am personally familiar, the individual has 
already committed a crime, because they are not legally in our 
country. And to make no distinction in the issue of extradition 
between somebody who came into a country illegally, where the 
country had no opportunity to screen them, versus a decision 
where they did come in legally and the host country did screen 
them, background check, criminal records, all of the like, the 
perpetrator in the March case would never have passed that kind 
of scrutiny to be legally admitted into our country. So when we 
don't enforce our immigration laws, we invite that multiplicity 
of criminal conduct.
    And I just for one, think that if the Mexican Government--
and I do not wish to condemn them unduly. I think they are 
trying to make progress. I commend them in the areas where they 
have made progress. But, quite frankly, if they would spend as 
much time and effort trying to get their extradition situation 
and their cooperation and criminal prosecution straightened out 
as they have spent trying to convince the banking and financial 
communities in the United States to accept the Matricular 
Consular cards, we would be much closer to a solution here.
    So I don't want to condemn their efforts, but I want to say 
I don't think they are making nearly enough. And they are our 
neighbor to the south. As the old poem said, fences make good 
neighbors. We can't build the kind of fences that we need. We 
have already found out that we can't do that. But good 
neighbors cooperate in the enforcement of basic criminal laws 
and the administration of justice. And I think Mexico has a 
long way to go in that regard.
    I didn't ask you any questions. I do appreciate your 
testimony. I think that hopefully this is the first step in 
making not only this Congress but also the people of this 
country more aware of the significance of this problem. And the 
truth of the matter is, we are not really at the crest of that 
hill. That hill gets bigger every day. The number of cases like 
we are talking about here are going to get larger every year. 
And if we really had true records, it wouldn't be 25 cases or 
even 300 cases of extradition from Mexico, because most 
prosecutors are realists. They know what their work demands 
are, they know what their budgets are, and they are just not 
going to spend time and effort and money where there is not 
going to be a successful result in the long run. They can't 
justify that.
    Now, that is not to say the problem is not there. It's to 
say the problem is there, and the problem has no good solution. 
And I think it's up to this Congress to do what we can to try 
to solve that problem. And it's only through the testimony and 
the willingness of people like you who will step out, tell the 
American people the truth, tell them the realities that we 
sometimes don't want to listen to, that we have a chance to 
begin to make progress.
    So I do thank all of you personally and very much for your 
testimony and your presence here today. And, Mr. Chairman, I 
especially want to thank you and the staff of this subcommittee 
for making this issue a matter of attention to the 
subcommittee. It would be a whole lot easier sometimes just to 
ignore these kinds of things and pretend that they are not a 
problem and they don't exist.
    I continue to have the feeling that this is the No. 1 time 
bomb waiting to explode in this country. And in my part of the 
world, as Mr. Porter's illustrations and even Mr. Fox's 
illustrations were, to some extent, much of the crime committed 
by Mexican residents has been crime against other Mexican 
residents who are either here legally or, in most cases, 
illegally. And those, unfortunately, have to be looked at in a 
little different situation. They don't arouse the same kind of 
local uproar. Not that we tolerate it, not that we like it. In 
Mr. Porter's testimony, the cases that he alludes to in my 
community, the driveby shootings, the bludgeoning deaths of 
drug dealers, has pretty much been that kind of activity.
    But wait until the victims are the victims like Officer 
March. You wait until those cases begin to multiply, and I can 
assure you that it will not be just a subcommittee of this 
committee holding hearings, it will be somebody demanding that 
somebody's head roll because they haven't done something at the 
time they should have done to prevent it. I think we can 
hopefully make some progress to avoid that time. Thank you very 
    Mr. Souder. Thank you.
    I have one additional question for Mrs. March. In your 
testimony, you said that the murderer had been deported on 
three occasions for drug charges and was wanted for two other 
attempted murders. Why didn't INS tell you that they hadn't 
held him? Did you ever get a chance to ask them that question 
or did you ever get any answer back?
    Mrs. March. Initially we just were told it was INS's fault. 
They said, no, it's the Federal Government's fault. I just got 
a lot of finger pointing. No one's taken any sort of 
accountability. No one's tried to make their actions correct. I 
think there is obviously a broken link in the system, and no 
one's taking fault for it. I have no idea. And I feel like 
somebody allowed this man to kill my husband.
    Mr. Souder. One of the things that I would like our 
subcommittee to do, and this isn't--we pretty much know the 
answer to the question. And that is, that when we deport, our 
information systems and our time or willingness to check 
everybody out, we are just overwhelmed.
    Mrs. March. I understand.
    Mr. Souder. But this is an incredible flaw that, by the 
way, was also a flaw in September 11 and it has to be fixed. 
And I would like to find out for the record officially why INS 
says they would have deported somebody who had drug charges and 
was wanted for two other attempted murders, and whether they 
just didn't have time to check it, whether the information 
system didn't show because the murders were in other States, 
whether the drug charges were insufficiently high and so we 
just kind of pretend like they didn't happen. Because this is a 
huge question.
    I'm also on Homeland Security, and when we did our border 
report, our understanding was--is that you have got deported if 
your only--and weren't held if your only crime was illegal 
citizenship, which, by the way, is also a crime. In other 
words, entering illegally. But supposedly they were supposed to 
be catching people and holding them if they had other charges. 
So the question is, what is the breakdown or multiple 
breakdowns in our system? And we know, in fact, we have a lot 
of them, and we are trying to fix them. But I would like to 
know, because this is a pretty extraordinary case, if it had 
that many different charges.
    Mrs. March. Well, it was kind of explained to me that 
somehow the system failed. Evidently, you know, he would be 
sent back and probably most likely not get any sort of 
punishment in Mexico. The way they explained it to me was--and, 
unfortunately, I think it's very true--is crime rises. And 
unless you were able to look in a crystal ball, you wouldn't 
have thought this guy would be possible for the crime that he 
did. He--evidently, I guess, when my husband pulled him over, 
he wasn't going to go to jail again and it didn't matter, he 
was going to kill my husband, which he said he would do to his 
prior friends--not him particularly, but any cop that pulled 
him over.
    So I think that was his initial plan to avoid the system. I 
think he just got a little more courage along the way. And he 
was probably at the bottom of the stack as far as high threat. 
And, unfortunately, we don't have enough law enforcement to 
keep up with the pace of the criminals.
    Mr. Souder. If somebody is wanted for two other attempted 
murders, we could keep track like that, you would think.
    Mrs. March. Yeah. Well, those--actually those two attempted 
murders weren't filed until after my husband was murdered. I 
don't know why. He actually got over the border that night, and 
they suspected he was going to, and I don't know why there 
wasn't more attention toward the border. There is so many 
things that I don't understand why it happened. And I can only 
imagine it's so I could be here and speak for the other 300 
    Mr. Souder. I don't know if you find this comforting or 
more scary, but we have spent 2 years and we have held hearings 
all across the north and south border, and I don't understand 
either. So I don't know whether you find that encouraging or 
    Mrs. March. Well, you know what? I can see why people take 
measures to hire, you know, bounty hunters. You don't feel like 
the justice system is going to do what they need to do, and you 
don't want him to keep on continuing to kill.
    Mr. Souder. Well, we have an obligation, because that 
system won't work either. And it is happening somewhat on the 
southwest border. But all it is doing is complicating the 
problem, as it has in Colombia and in other countries, because 
pretty soon the bounty hunters decide they can do a rogue 
business on their own as well, and then you have multiple 
groups of terrorists.
    We have an obligation to our citizens to do a better job, 
which means we need, by the way, responsible immigration 
policies that work, because we simply can't hire enough Border 
Patrol people right now to protect that whole border. But we 
have to take some action for narcotics reasons, for murder 
reasons, for terrorist reasons, because the current system 
isn't functioning, particularly if they won't extradite even if 
they have them.
    Mrs. March. They've left us no choice but to try to lure 
him in, and that essentially gives him his freedom.
    Mr. Souder. Well, thank you.
    Mrs. March. We know exactly where he is at.
    Mr. Souder. Well, we thank you for your testimony. I also 
want to insert into the record Mr. Cummings' testimony right 
after mine as the ranking Democrat.
    Anybody else have any additional comments?
    Mr. Fox. Thank you.
    Mr. Souder. Thank you very much for coming today. The 
subcommittee is now adjourned.
    [Whereupon, at 12:29 a.m., the subcommittee was adjourned.]
    [The prepared statement of Hon. Elijah E. Cummings and 
additional information submitted for the hearing record