To extradite or not, that is the question

The saga of Amanda Knox has played out as a major news story in this country over the last several years and has probably been the biggest story of the 21st century to date in Italy.  American media outlets have been fascinated by the story for its more prurient aspects:  the drugs, the sex games, the especially bloody murder of Meredith Kercher, the pretty college student inappropriately making out on camera with her co-defendant boyfriend in the aftermath of the death of her roommate.  I am told that the Italian media have been crazed by this story at each new development.

In case you've been living under a rock:  In the fall of 2007, Kercher, a Briton, and Knox, an American, were roommates in a house in Perugia, Italy, while both were students at the Università per Stranieri, or "University for Foreigners."  Knox, a University of Washington student, was taking a "year abroad."  On November 1, 2007, Kercher was found murdered in the house she shared with Knox and two others.  Under pressure from police, Knox confessed to the murder, but later recanted.  She, her then-boyfriend, and another man were charged with the murder, which was alleged to have occurred during a "drug-fueled sex game."

In 2009, Knox was convicted of the murder and related offenses and sentenced to 28 years in prison.  She appealed, and in 2011, the court of appeals set aside the verdict and fount her not guilty.  She was released from prison and quickly returned to the United States.  Later, however, the Italian Supreme Court overturned the court of appeals and ordered a new trial.  Knox was tried in absentia, and on Thursday of last week, she was convicted again.  She will no doubt appeal.

I have my doubts about both Knox's guilt and innocence, but it is fairly clear that we will never know what happened on the night Kercher died.  The investigation was bungled by the police, and Knox's mistreatment by the police and at the prison where she lived for four years has been well documented.  (Upon her arrival at prison, for instance, she was told--falsely--that she was HIV-positive and prompted to provide a list of prior sexual partners. Prison officials then leaked the list to the media in order to discredit Knox.)  But if not Knox, then who?  And it's not as though she was a minor at the time of the incident.  She was 20 years old--immature, to be sure, but grown-up enough to live abroad and to engage in some very adult behaviors.

The question now is, what do we do about her?

If Knox's conviction is upheld, Italy will no doubt seek to extradite her from the United States.  And although I am usually in favor of upholding our treaty obligations, in this case, we should decline Italy's request.  One of the fundamental, guiding principles of American justice is that of double jeopardy; a criminal defendant who is acquitted may not be retried for the same offense.  Knox has been acquitted; only under Italian law may she be retried.

That second point is important.  I have read the U.S.-Italy extradition treaty (it's only a few pages long).  Extradition for an offense is permitted "only if it is punishable under the laws of both Contracting Parties [U.S. and Italy] by deprivation of liberty for a period of more than one year or by a more severe penalty."  Under U.S. law, the offense for which Italy is seeking extradition is not punishable, as to Amanda Knox, because of her acquittal.

Indeed, by declining to request extradition, and trying her first instead in absentia, Italy is gaming the system.  The Italian authorities have essentially deprived Knox of any meaningful participation in her trial--something we require in our own trials.  Italy should not be permitted to benefit from Knox's absence and later insist that it has a claim upon her.

It is also unlikely that she could receive a fair trial in Italy at all.  The case is too sensational.  The fact that she could be convicted--again--among such substantial and basic questions about her guilt is circumstantial evidence of an essential corruption of the Italian justice system, informed more by sensation and emotion than by evidence.

Extradite?  No, I think not.