Angry in the Great White North

Deporation and extradition are processes in which a person residing in one state is forceably removed and turned over to the judicial control of another state.

The difference between the two, though, might help cast some light on the John Mark Karr situation.

In the case of deportation, the state of residence will initiate the action, often for administrative reasons and not for criminal behaviour, and eject the person from their territory. The person is never a citizen of the state of residence. In other words, you can't deport your own citizen (unless you can somehow strip the person of his or her citizenship, which might be possible for someone with dual citizenship). If the person has committed a criminal act instead of merely overstaying his or her visa, the state of residence will generally prefer to prosecute and punish that person, in order to ensure justice is done. The state of citizenship is not likely to pursue criminal prosecution of a crime committed out of its jurisdiction. Once the punishment is served, the criminal is deported.

In the case of extradition, the person has committed a crime in one state and has evaded prosecution or punishment by fleeing to take up residence in another state. The state in which the crime has occurred requests that the state of residence apprehend the person and force his return. Note that if the person is a citizen of the state of residence, that state might refuse to extradite. Many countries refuse to extradite their own citizens on principle. Foreigners legally in the country, however, are fair game for extradition.

John Mark Karr is an American citizen living in Thailand. He was picked up by local authorities for an assault charge, the details of which I have not seen described. He then offered a confession to the murder of JonBenet Ramsey, which of course happened in the United States.

Initially, the reports stated that the United States would seek to extradite Karr. Karr, being a citizen of the United States and not of Thailand, is already on shaky ground. But to extradite, the United States would have to prepare an application and present it to the authorities in Thailand, and successfully argue that Karr ought to leave Thailand's jurisdication without having the local charges against him resolved in order to face immediate trial in a foreign court for a crime ten years in the past. If that were allowed to happen, he might never be called to account for his alleged crimes in Thailand.

Normally, people facing extradition fight it. In this case, Karr seemed eager to go to the United States. This supports the idea that Karr's confession to the Ramsey murder was part of a plan escape Thai justice (though it doesn't mean he didn't do it). But here's the problem with Karr's plan -- no prosecutor worth his salt would allow the accused to leave his jurisdiction without having faced trial on the local charges, no matter how heinous the crime in another jurisdiction, not if the local charges were serious. A Thai judge would almost certainly not sign off on an extradition request with Thai charges outstanding, and I find it difficult to believe a Thai prosecutor would set aside the local charges under these circumstances.

What circumstances? Given the strange inconsistencies in Karr's account of the murder, a Thai prosecutor would have to think that Karr has a fair chance of being found not guilty in the US for the Ramsey murder, and maybe of not even seeing the inside of a courtroom. Why would the Thai prosecutor let him go? The extradition request would be turned down, and that would be a nightmare scenario for both the Thai and US governments.

But a key element of Karr's plan might have been the hope that the intense media attention would dramatically limit the discretion of the Thai authorities. If so, he might have been right.

In the media storm that would erupt over a denied extradition request, soon everyone would know the details of the US case that failed to impress the Thai prosecutor. How would we know? The inevitable leak, of course. We all saw the circus that featured Karr as the star attraction. The press of reporters and photographers so close that they could reach out and grab Karr is something we're not used to seeing. In North America, we'd be lucky to see a fuzzy photograph of Karr, head covered with a jacket, taken with a telephoto lens from 100 yards away.

In the media frenzy we saw in Thailand, what US official would trust the Thai authorities to be able to ensure the confidentiality of the extradition request? Might as well save everyone the trouble and fax the confidential details of the extradition application to every major news organization on the planet.

The trick, therefore, would be to turn this from a judicial process into a political one. A couple of days ago, Karr was facing extradition. Since then, it was announced that Karr would be deported instead. That is an action that, on paper anyway, is solely at the discretion of the Thai government. Deportation accomplishes much. The Americans get their hands on Karr, without having to share the details of their case with anyone (or perhaps more accurately, without having to share the details with everyone). The Thailand government can say they were not taking orders from the Americans, but acting independently and in their own interests.

A win-win situation, right?

Maybe a win-win-win, if it turns out that Karr had intended that the consequence of his confession would be a one-way ticket out of Thailand. What if it turns out he is not responsible for JonBenet's death? Can he be extradited back to Thailand?

I doubt it. For one, he could argue that a Thai prison constitutes cruel and unusual punishment, and so claim constitutional protection against extradition. But now that he has been deported, he could argue that the Thai government has already set aside the charges. Perhaps his lawyer could construct a double jeopardy defence, arguing that the Thai decision to deport him constituted trial and punishment for the original charges brought against him by the Thai authorities, and that the US could not send him back to face a second trial for the same charge under the jurisdiction of the same authorities.

For the sake of Mary Lacy, the Boulder County District Attorney, John Mark Karr better be the man responsible, or else she might have just helped a potential sex offender escape from Thailand into the United States.