West Virginia district court denies request from Ireland for the extradition of a U.S. citizen accused of assisting in suicide; dual criminality requirement of the U.S.–Ireland extradition treaty was not met; although the court recognizes that dual criminality could potentially be satisfied by the existence of substantially comparable laws in a “preponderance” of the states, there was no consensus in the laws of the U.S. states as to assisted suicide
The following district court case concerns Ireland’s request for the extradition of the Reverend George Exoo of the “Compassionate Chaplaincy Foundation,” an organization that assists people who wish to commit suicide. Such has been termed “suicide tourism” by critics. More information about the background of this matter is available at www.compassionate‑chaplaincy.com.
The United States initiated an action for the extradition of American citizen George Exoo to Ireland. The Dublin Metropolitan District Court issued a Warrant to Arrest Exoo on May 21, 2004, based upon information provided by a police detective that Exoo (1) aided and abetted and (2) counseled the suicide of an Irish woman, Ms. Toole, in violation of Irish law. That law provides that “a person who aids, abets, counsels or procures the suicide of another . . . shall be guilty of an offense and shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.” Section 2(2) of Ireland’s Criminal Law (Suicide) Act, 1993.
Exoo was affiliated with an organization known as the Compassionate Chaplaincy Foundation which provided assistance to dying people. Exoo, in his position as a minister, provided instruction and spiritual support for people seeking to end their own lives. In 2002, Exoo traveled to Ireland after some correspondence with Ms. Toole, a woman suffering health problems who had attempted and failed at suicide once before. Ms. Toole paid for Exoo’s traveling expenses. On January 25, he was with Ms. Toole when she took unspecific pills and out on a mask that supplied her with helium, not oxygen. She soon asphyxiated, and Exoo left the country without notifying authorities of her death. In 2007, a warrant was issued in the U.S. and Exoo was arrested. The court subsequently held a hearing to determine where extradition of Exoo to Ireland was permissible.
Under the 1983 extradition treaty between the United States and Ireland, “An offense shall be an extraditable offense only if it is punishable under the law of both Contracting Parties by imprisonment for a period of more than one year, or by a more severe penalty¼ Extradition shall also be granted for attempt and conspiracy to commit, aiding, abetting, counseling, procuring, inciting, or otherwise being an accessory to the commission of [such an offense that is punishable under the law of both states].” The treaty further stipulated that it “adopts the modern practice of permitting extradition for any crime punishable under the laws of both contracting Parties for a minimum period,” and that the doctrine of dual criminality should be interpreted liberally under it.
To extradite Exoo, the Court would have to determine, among other things, whether “in consideration of the offenses with which he is charged in Ireland, [Exoo] is extraditable under the ‘dual criminality’ provision contained in Article II of the Treaty. Under this provision, the Court must determine whether the offenses with which [Exoo] is charged in Ireland are also punishable under the law of the United States by imprisonment for a period of more than one year or by a more severe penalty.” [pg. 5]
“To determine whether dual criminality exists as between the law of Ireland and the law of the United States, the Court must look to federal law first. If there is no corresponding federal law, then the Court must look to the law of the State where [Exoo] is found. If there is no corresponding law in the State where [Exoo] is found, then the Court must look to the law of the preponderance or majority of States.” [pg. 5–6] These laws need not be identical between states, merely similar. In Exoo’s case, the proper inquiry was first into Federal and West Virginia law, neither of which possessed laws that would satisfy the duality requirement. However, the United States in its memorandum maintained that a preponderance of the States criminalize assisted suicide, and alleged that 39 have statutes forbidding such acts and 29 of those attach aiding and abetting liability to providing assistance in any form to the suicide of another.
In June 2007, the Court held an Extradition Hearing. “Essentially, the question presented was¼ whether the [Extradition Treaty between the US and Ireland] permitted dual criminality to be assessed in consideration of the law of a preponderance of the States and, if so, [did] it appeared probable that dual criminality does not exist as between the law of Ireland and the law of a preponderance of the States¼ [L]egal research indicated that several Courts have stated that, absent duality as between the law of the requesting State and federal law and the State where the relator is found, the Treaty language would permit an assessment of dual criminality in view of the law of a preponderance of the States.” [pg. 8]
At the hearing, both sides presented evidence on the differing assisted suicide laws of various states and the status of assisted suicide at common law where no statute existed. While the Government maintained that a majority of states had statutes criminalizing assisted suicide and also recognized aider and abettor liability for such acts, Exoo argued that not only had the Government failed to show a majority trend among the various states, even if it had, majority alone was not enough. Instead, the requisite for a finding of duality under a “preponderance” of state laws was “consensus” among them.
At the hearing, the court emphasized that extradition treaties were to be interpreted liberally, and this applied as well when determining if dual criminality exists when there is no comparable federal or State of asylum enactment. In order to make such a determination, it stated, the court must compare the laws of the country requesting extradition and the fifty States to determine if the conduct charged in the requesting country is punishable in a preponderance of the States. [pg. 17]
In the court’s determination of the meaning of applicable laws, it noted that, in general, the law of the United States and Ireland are conceptually consistent in defining aiding and abetting. In then turned to a comparison of the assisted suicide laws of Ireland and the 50 states, in order to determine “the extent to which the States’ laws are ‘substantially analogous’, ‘relate to the same general offense’ or involve conduct which is criminal in both countries.” [pg. 21]
After conducting this comparison, the court found there was no dual criminality under the “preponderance of the states” standard, and extradition was not permissible. The State Court decisions analyzed by the court in making its comparison indicated that the strong majority of the States’ statutes would not be “substantially analogous” for duality purposes. “Utilizing as broad a notion as possible of what legally constitutes ‘aiding’ and ‘causing’ in order to conform to the liberality requirements of the Treaty and the law, the Court [found] that the laws of the 25 States set forth in the first category incorporate both aiding and causing suicide and therefore included conduct such as Exoo’s indirect, secondary participation in Ms. Toole’s suicide.” [pg. 30]
However, the Court also finds that 25 States did not have laws which were “substantially analogous,” and as such, the Court could not find that aiding and abetting and counseling suicide as charged in Ireland are generally recognized as criminal in the laws of the States, and extradition was denied.
Citation: In the Matter of the Extradition of George David Exoo, 5:07‑0059 (S.D.Wv. 11/26/2007).