Committee debates S.87 change to treat pre-signed extradition waivers as presumptively valid

Members of the Judiciary committee on May 1 examined draft revisions to S.87 that would let Vermont courts treat previously signed, authenticated out‑of‑state extradition waivers as presumptively valid when a detained person appears in Vermont court.

The change would allow a judge to “proceed as if the person had consented to the return of the demanding state,” under the draft, placing the burden on a defendant to prove a prior waiver is invalid, the committee was told.

The measure matters because it would speed some extradition cases when a waiver already exists, but witnesses and the judge warned the change raises legal and procedural questions about when a court may hold a person, who must file extradition papers and whether pretrial, out‑of‑state waivers are equivalent to an in‑court waiver.

Kim McManus, with the Department of State's Attorneys and Sheriffs, told the panel the draft offers “a neat, clean” solution to create an off‑ramp when a presigned waiver exists but noted the current placement of the language would still require law enforcement and the state's attorney to file a fugitive‑from‑justice charge at the initial hearing. McManus said some in law enforcement wonder whether “this out of state warrant exists, this waiver exists, like, do we really have to do everything around charging this as a fugitive from justice case?” She presented a suggested alternative that would reduce that paperwork if the committee wanted to pursue it.

Tom Zoney, chief superior judge, said the subsection allowing courts to treat prior waivers as though executed before a Vermont judge “reflects the fact that when you have a waiver under the current law, that waiver has to be executed before the judge under, section 49 67.” He cautioned that a proposal to let officers file a short form in the middle of the night without a petition would raise difficult questions: who may order bail, who files pleadings, and whether courts could lawfully hold someone overnight absent a petition. “The first question that I think if this new language were adopted, is whether in the middle of the night, law enforcement, if they call the judge, whether the judge could actually order bail,” Zoney said.

Rebecca, an attorney with the Office of the Defender General, said her office had only just received the draft and raised constitutional concerns about treating waivers signed in other states as functionally identical to an in‑court waiver in Vermont. She asked “what is the meaning of valid? What is a valid waiver?” and warned that waivers signed in different contexts — post‑conviction sentencing or as a pretrial condition in another state — can differ dramatically in their scope and the extent to which the signer understood their rights.

Supporters said subsection 2, the narrower provision in draft 3.2, does provide a route to speed cases where a valid authenticated waiver already exists and the person appears in court. A committee member asked whether the proposed language would, in practice, let a state's attorney “off‑ramp” extradition when a prior waiver is shown; Zoney and others agreed subsection 2 would give courts a process to treat a prior authenticated waiver like an in‑court waiver while preserving the defendant's right to challenge its validity.

Paul Delos, who said he was appearing on behalf of a government office, expressed continued support for the Senate‑passed version of S.87 and asked that language allowing “reliable electronic means” of authenticating records be restored so courts and prosecutors can rely on records transmitted electronically without delay.

Throughout the discussion, officials stressed operational friction for law enforcement and prosecutors as a practical driver of the proposed fixes. McManus and others described the possibility of fillable, standardized affidavits or “short form” filings that include the necessary attachments (the waiver and the demanding state's paperwork) so a judge can review them at arraignment without lengthy manual drafting. Judge Zoney and defense counsel said the committee should ensure any streamlined practice does not eliminate required judicial findings or constitutional protections.

No formal vote was taken during the hearing. Committee members proposed staff and interested offices — the Department of State's Attorneys, the Defender General's office, law enforcement and the courts — review existing petition practices and whether standardized filings or training could reduce paperwork while preserving statutory and constitutional safeguards. One committee member said the issue could be addressed during scheduled training in June.

The committee recessed for a break and planned to continue consideration of S.87 and other bills the following day.