The decision whether, and to what extent, the Due Process Clause requires a competency hearing in a rendition proceeding requires consideration of the interests that are involved.

Whether any procedural protections are due depends on the extent to which an individual will be "condemned to suffer grievous loss." The question is not merely the "weight" of the individual's interest, but whether the nature of the interest is one within the contemplation of the "liberty or property" language of the Fourteenth Amendment. Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. "Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." ⁽¹⁾

The appellant has a liberty interest in remaining in the asylum state. Against this interest we must balance the undoubted requirement of the Constitution that the rendition of a person who is wanted in another state is to be a summary procedure. "To allow plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Art. IV, § 2." ⁽²⁾ When he reaches the demanding state and enters the criminal proceedings, the appellant's much greater interests under the Sixth Amendment will be protected by the availability of competency proceedings in that forum. On balance, I think the competency determinations that the district court and the court of appeals made were sufficient to protect the appellant's interest.

I respectfully suggest that, in construing the requirements of the federal constitution, we should give more consideration to the views of the federal courts.

Two federal courts of appeals have considered the question before us; both have decided that a competency hearing is not part of due process of law in an extradition proceeding. ⁽³⁾ Both courts have relied on the decision of the Supreme Court in Charlton v. Kelly. ⁽⁴⁾

Today the Court says Charlton v. Kelly need not be considered because the question in that case was "the accused's present ability to defend against the allegations or his insanity at the time of the commission of the commission of the crime," while we are considering "only … the issue of an accused's competence to understand the extradition proceedings." ⁽⁵⁾ The federal courts have not found this distinction persuasive.

In Charlton v. Kelly, the Supreme Court noted that "impressive evidence of the insanity of the accused" had been excluded at an extradition proceeding. The Court concluded habeas relief was not warranted, however, stating, "If the evidence was only for the purpose of showing present insanity by reason of which the accused was not capable of defending the charge of crime, it is an objection which should be taken before or at the time of his trial for the crime, and heard by the court having jurisdiction of the crime."

Petitioner argues that the due process and Sixth amendment right to counsel argument he is raising now was never specifically addressed in Charlton and hence Charlton is not controlling. …

It is true, as petitioner contends, that the Supreme Court in Charlton v. Kelly did not expressly address the due process argument petitioner raises. Petitioner is wrong, however, to read Charlton as holding nothing more than that a statute discussed in Charlton had conferred no right to present evidence of insanity. Rather, the tenor of Charlton was that in view of the limited function of extradition proceedings -- extradition proceedings were not to be regarded as a final trial at which guilt or innocence would be determined but rather as but a preliminary examination to determine whether a sufficient case had been made to justify holding the accused to answer the charge against him -- and the limited scope of review of extradition matters in habeas corpus proceedings, competency was a matter to be determined by the jurisdiction trying the offense and not by the extraditing jurisdiction.

… Given the limited purpose of extradition proceedings and the tenor of the Charlton case, we conclude due process does not require a competency hearing in extradition proceedings, at least absent a more severe condition than the one described in the doctor's report. ⁽⁶⁾

I agree with the federal courts of appeals and our court of appeals that the Due Process Clause does not require a hearing in this case.

En banc.

Delivered June 28, 2000.

Publish.

1. Morrisey v. Brewer, 408 U.S. 471, 481 (1972) (citations omitted).

2. Michigan v. Doran, 439 U.S. 282, 290 (1978).

3. See Lopez-Smith v. Hood, 121 F.3d 1322 (9th Cir. 1997); Romeo v. Roache, 820 F.2d 540 (1st Cir. 1987).

4. 229 U.S. 447 (1913). See Lopez-Smith, 121 F.3d at 1324-25; Romeo, 820 F.2d at 543-44.

5. Ante at 3 n.2.

6. Romeo, 820 F.2d at 543-44 (citations omitted).