Attorney General's Opinion
Attorney General, Richard Blumenthal
May 24, 2001
Honorable Arthur L. Spada
Commissioner of Public Safety
1111Country Club Road
P.O. Box 2794
Middletown, CT 06457-9294
Dear Commissioner Spada:
This letter is in response to your request for a formal opinion concerning the effect of the federal Extradition Act, 18 U.S.C. §3182 et. seq., and the Interstate Transportation of Dangerous Criminals Act of 2000, Pub. L. No. 106-560, 114 Stat. 2784 (2000), on the Department of Public Safety’s ability to enforce the provisions of Chapter 534 of the Connecticut General Statutes. Chapter 534 governs the licensing of private security companies that provide private prisoner transportation services for the State of Connecticut and requires a special permit if the individuals providing such services carry firearms in the course of duty. See Conn. Gen. Stat. §§29-153 through 29-161c.
As discussed below, we conclude that Congress did not intend either the Extradition Act or the Interstate Transportation of Dangerous Criminals Act to preempt all state law concerning the interstate transportation of prisoners by private transportation companies. Accordingly, the state is free to enact laws that supplement, but do not conflict with, the federal Acts and implementing regulations. However, because the U.S. Attorney General has not yet adopted regulations implementing the Interstate Transportation of Dangerous Criminals Act, it is impossible to state to what extent this Act preempts the provisions of Chapter 534 of the Connecticut General Statutes.
"Congress has the power under the Supremacy Clause of Article VI of the Constitution to pre-empt state law." N.W. Cent. Pipeline v. State Corp. Commission of Kansas, 489 U.S. 493, 509 (1989). Determining whether Congress has exercised this power requires an examination of congressional intent, as evidenced by the language, structure and purpose of the federal statute at issue. Id.
The U.S. Supreme Court has established that state law is preempted under the Supremacy Clause in three circumstances. English v. General Electric Co., 496 U.S. 72, 78 (1990). First, if Congress has explicitly addressed the issue of preemption in a statute, the statutory language governs and there is no need to look further to determine congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992).
"Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a ‘scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,’ or where an Act of Congress ‘touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’" English v. General Electric Co., 496 U.S. 72, 79 (1990), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
"Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found preemption where it is impossible for a private party to comply with both state and federal requirements, or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’" English v. General Electric Co., 496 U.S. 72, 79 (1990), quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Regulations promulgated by federal administrative agencies may have the same preemptive effect as acts of Congress, provided the agency has indicated an intent to preempt state law and has acted within the scope of its delegated authority. Fidelity Federal Savings and Loan Association v. de la Cuestra, 458 U.S. 141, 153 (1982).
As a general rule, in the absence of express statutory language stating an intent to preempt state law, the Supreme Court is reluctant to infer preemption. Building and Trades Council v. Associated Builders, 507 U.S. 218, 224 (1993); Maryland v. Louisiana, 451 U.S. 725, 746 (1981)("[c]onsideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law"). Thus, the Supreme Court will interpret a statute to preempt traditional state powers only if that result is "the clear and manifest purpose of Congress." Dept. of Revenue of Oregon v. ACF Industries, 510 U.S. 332, 345 (1994).
The Extradition Act, 18 U.S.C. §3182 et. seq., which implements the Extradition Clause of the Constitution,1 imposes on each state an obligation to extradite any fugitive from justice found within its borders to the state from which he or she has fled upon proper demand from that state.2 The Act further provides that each state is permitted to appoint an agent to receive and transport extradited prisoners. 18 U.S.C. §§3182 and 3194.
State and federal courts construing the Extradition Act and its predecessor have long held that the Act is not intended to be comprehensive and thus states are free to adopt ancillary legislation that is consistent with the federal standards for extradition, or provides for the surrender of fugitives on less exacting terms than those required by federal law. See, e.g., Wright v. Bourbeau, 3 Conn. App. 512, 516-517 (1985), cert. denied, 474 U.S. 1083 (1986); People ex. rel Dimas v. Shimp, 403 N.E.2d 750 (Ill. App. 1980); State v. Cox, 306 So. 2d 156 (Fla. App.1974); People ex. rel. Hollander v. Britt, 92 N.Y.S. 2d 662 (1949); Ex parte Bledsoe, 227 P.2d 680 (Okla. 1951); Walden v. Mosley, 312 F. Supp. 855 (N.D. Miss. 1970). Because the Act does not establish procedures for the extradition process, states are free to adopt statutes governing such procedures. Most states, including Connecticut, have adopted the Uniform Criminal Extradition Act ("UCEA") or substantially similar legislation. Raffone v. Sullivan, 436 F. Supp. 939 (D. Conn. 1977); see Conn. Gen. Stat. §§54-159 through 54-185. Connecticut has also adopted Chapter 534, which governs the licensure of private companies that transport extradited prisoners. Because the Extradition Act contains no preemption clause, was not intended to occupy the field of extradition, and does not conflict with the provisions of Chapter 534, we conclude that it does not preempt Chapter 534.
As you point out, however, Congress has supplemented the Extradition Act by adopting the Interstate Transportation of Dangerous Criminals Act of 2000, Pub. L. No. 106-560, 114 Stat. 2784 (2000), also known as "Jeanna’s Act," on December 21, 2000, in order to "provide protection against the risks to the public that are inherent in the interstate transportation of violent prisoners." Preamble, Pub. L. No. 106-560. You have questioned the possible preemptive effect of this new legislation.
The Interstate Transportation of Dangerous Criminals Act states that not later than 180 days after its enactment, the U.S. Attorney General must promulgate regulations setting forth specific standards and requirements relating to the transportation of violent prisoners in interstate commerce by private transportation companies.3 The regulations are required to include "minimum standards" for (1) background checks and preemployment drug testing for potential employees, (2) the length and type of preservice training that employees must undergo, (3) the number of personnel that must supervise violent prisoners, (4) employee uniforms and identification, (5) restraints that must be used when transporting violent criminals, and (6) the safety of violent prisoners in accordance with applicable federal and state law. Pub. L. No. 106-560, §4(b). The regulations are also required to include restrictions on the number of hours that an employee can be on duty during a given time period, standards establishing categories of violent prisoners required to wear brightly colored clothing clearly identifying them as prisoners, and requirements that private transportation companies notify local law enforcement officials of any scheduled stops or escapes within their jurisdictions. Pub. L. No. 106-560, §4(b). To date, these regulations have not been promulgated.
In determining whether the Interstate Transportation of Dangerous Criminals Act is intended to preempt state law, we look first for any explicit language concerning preemption in the Act itself. Because the Act does not contain any such language, it is necessary to look for evidence that Congress intended to occupy the field of prisoner transportation. "Such an intent may be inferred from a ‘scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,’ or where an Act of Congress ‘touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’" English v. General Electric Co., 496 U.S. 72, 79 (1990), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Nothing in the Interstate Transportation of Dangerous Criminals Act indicates such an intent.
First, the Act is not part of a scheme of pervasive federal regulation. Indeed, as discussed above, the courts have repeatedly held that the federal statute governing extradition is not intended to be comprehensive, and most states have adopted their own statutes governing the extradition process.
Second, by its express terms, the Act only applies to the transportation of "violent" prisoners. Because those who are subject to extradition include not only violent offenders, but also fugitives who have committed any crime, including misdemeanors, the Act, by limiting itself to the transportation of violent criminals, is clearly not intended to occupy the entire field of prisoner transportation by private transportation companies.
Third, it is significant that the Act requires the adoption of regulations that impose "minimum standards." Although the Supreme Court has made clear that the use of the term "minimum standards" is by no means conclusive, see Ray v. Atlantic Richfield Co., 435 U.S. 151, 168 n. 19 (1978)(federal law establishing comprehensive minimum standards for oil tanker design and construction preempted all state laws on the issue), it is nonetheless evidence that suggests a lack of congressional intent to occupy the field and preempt more stringent state legislation. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 147-48 (1963)(federal Agricultural Adjustment Act set minimum standards for produce quality and maturity and was not intended to preempt state law); Dyad Construction, Inc. v. City of Portland, 765 F. Supp. 653, 655 (D. Or. 1991), aff’d sub. nom. Babler Bros. Inc. v. Roberts, 995 F.2d 911 (9th Cir. 1993)(federal Contract Work Hours and Safety Standards Act only set minimum standards and was not intended to preempt stricter state laws); Yellow Freight System, Inc. v. Amestoy, 736 F. Supp. 44, 47 (D. Vt. 1990)(noting that "the concept of ‘minimum standards’ suggests the possibility of supplemental standards imposed by the states").
Finally, the regulation of private prisoner transportation companies is not a field such as foreign relations "in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), citing Hines v. Davidowitz, 312 U.S. 52, 68 (1941). On the contrary, there are already varying state laws governing the extradition process. As long as the minimum standards of the Interstate Transportation of Dangerous Criminals Act are met, the federal government's interest in ensuring public safety will be protected.
While all of these factors, taken as a whole, suggest that Congress did not intend the Interstate Transportation of Dangerous Criminals Act to preempt state law, Chapter 534 of the Connecticut General Statutes will nonetheless be preempted to the extent that it actually conflicts with the regulations promulgated under the Act. Because the regulations have not yet been promulgated, however, it is impossible to determine at the present time whether there will be any actual conflict.
In sum, we conclude that Congress did not intend either the Extradition Act or the Interstate Transportation of Dangerous Criminals Act to preempt all state law concerning the interstate transportation of prisoners by private transportation companies. Until the governing regulations under the latter Act have been promulgated, however, we are unable to render an opinion as to whether there is any conflict between the regulations and Chapter 534 of the Connecticut General Statutes that would render the provisions of the state law unenforceable.
Very truly yours,
Assistant Attorney General
1The Extradition Clause states that: "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." U.S. Const. art. IV, §2, cl. 2.
2In particular, the Act states that: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged." 18 U.S.C. §3182.
3A "private transportation company" is defined for purposes of the Act as: "any entity, other than the United States, a State, or an inferior political subdivision of a State, which engages in the business of the transporting for compensation, individuals committed to the custody of any State or of an inferior political subdivision of a State, or any attempt thereof." Pub. L. No. 106-560, §3(2).