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Amanda Knox may have constitutional claims to bar her extradition

If you’ve been following the Amanda Knox case in the news, you may be aware that Italy’s highest court has now ordered the young woman and her former boyfriend to be tried again for the alleged murder of Knox’s roommate, a British exchange student. That order is the latest in an unusual series of legal events involving Knox and the Italian court system since the 2007 murder.

Knox and her former boyfriend were found guilty at the trial level in 2009, but Italian law does not consider such convictions final until a second court confirms them. The second court acquitted Knox, and she returned to the U.S. In 2011, however, Italy’s highest court, the Court of Cassation, overturned that acquittal and ordered a new, second-level court to reconsider the case. Knox is not required to attend that rehearing.

Should that new court convicts her, the next issue could be whether she be extradited to Italy and required to serve out her 26-year sentence. Since 1984, the U.S. has had an extradition treaty with Italy which obliges it to extradite anyone convicted of an extraditable offense, or one carrying a penalty of more than a year.

Knox’s case appears to fit squarely within those rules, but the treaty also includes a provision prohibiting extradition in cases involving “non bis in idem,” which roughly correlates to the concept of double jeopardy in the U.S. Constitution. That raises an interesting constitutional issue that may prevent Knox from ever being forced to return to an Italian prison.

The U.S. Constitution prohibits double jeopardy, or the same government trying a defendant a second time for any criminal act. Although double jeopardy originated in ancient Roman law, modern Italian law clearly takes a very different view of what should be considered a prohibited, second trial. The issue is far from cut and dried even in the U.S., where our courts allow the same defendant to be tried by both a state and the federal government for the same incident, because different governments are involved.

Which country’s interpretation of “non bis in idem” would be used in Knox’s case, however, may not be known for some time. According to ABC and the Christian Science Monitor, Italy could not seek her extradition until any second conviction were appealed, which could take several years.

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