LET IT BE KNOWN: THE INTERNATIONAL PRISONER TRANSFER PROGRAM.

• Author: Craig, Amanda

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1. INTRODUCTION

   In 1977, the United States began the International Prisoner Transfer Program ("the Program"), also known as the Prisoner Transfer Treaties, which allows United States citizens imprisoned abroad and foreign prisoners to transfer back to their home country to serve the remainder of their criminal sentence. (1) This program helps the rehabilitation of inmates back into society with the idea that, upon release, they may become productive members of that society within their homeland. (2) To allow such a transfer, the United States must have a respective treaty with the country to which the prsonerwishes to transfer (3) The [*42] inmate is the party who typically requests the transferand starts the process. (4) There are pros and cons to any program or treaty, but when it comes to the United States' International Prisoner Transfer Program, the pros far outweigh the cons. (5) To be as effective as it can be, there needs to be increased awareness of the [*43] Program to foreign prisoners throughout the United States, and this awareness should begin with attorneys who can both inform the prisoners and hold the government accountable to properly apply the Program. (6) Without increased awareness of this Programs existence, the prisoners cannot request to be transferred back to their home countries, and, therefore, are not able to utilize the Program. (7)

   This Note will unravel the inner workings of the International Prisoner Transfer Program piece by piece to get a greater understanding of what the Program is and the effects it can have. (8) Part II of this Note will explain the creation of the Program [*44] itself and the establishment of certain treaties within the Program, which the United States has instituted with other participating countries. (9) Part III will analyze the language of the Program in order to help explain how the transfer treaties work and the benefits they can provide. (10) Part IV will discuss the importance of prisoner awareness of the Program and how the Program could be much more effective if lawyers and the government could provide this awareness to the prisoners. (11) Finally, Part V will propose the idea that if lawyers were better educated on the International Prisoner Transfer Program and could provide increased prisoner awareness, then they could assist [*45] the government in utilizing the Program through multiple means, such as plea agreements and deportation hearings, and potentially achieve more goals than the Program embodies. (12)

2. HISTORY

   1. Development of the International Prisoner Transfer Program

      The International Prisoner Transfer Program is a series of treaties that began with the first bilateral treaty between the United States and Mexico, ratified in 1977. (13) The United States [*46] originally started this practice of Prisoner Transfer Treaties to help combat poor treatment of its citizens abroad. (14) Congress gave the power of administrating the Program to the United States Attorney General, which was then delegated to the Criminal Division's Office of Enforcement Operations (OEO). (15) In 2018, the OEO delegated the Office of Internal Affairs (OIA) and its newly formed International Prisoner Transfer Unit (IPTU) to monitor the use of the Program and any transfers made through a transfer treaty. (16)

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   2. Treaties Formed Throughout the Years

      1. Other Bilateral Treaties

         The treaty with Mexico was quite successful as it provided even more benefits than expected. (17) The United States sought to expand the International Prisoner Transfer Program to include other countries by creating more bilateral treaties, and began negotiating treaties with Canada and Bolivia within the year. (18) There was some opposition to the transfer treaties in [*48] earlier years of their creation because of a fear that the consent of the prisoners, more specifically Americans incarcerated abroad, could be obtained or withheld as a result of duress. (19) To appease the general public and address this issue, in 1977, the United States instituted, within the International Prisoner Transfer Program, a requirement that a prisoner must participate in a hearing to verify that the prisoner was voluntarily consenting to the transfer. (20) ln the years following the adoption of the Program, the United States established more treaties to allow the transfer of prisoners with other countries. (21) Today, the [*49] United States has bilateral transfer treaties with twelve different countries. (22)

      2. Creation of the Multilateral Treaties

         The United States, alongside other participating countries of the Council of Europe (COE), formed the first multilateral international prisoner transfer treaty. (23) This treaty is named the Council of Europe Convention on the Transfer of Sentenced Persons, and it regulates the transferof imprisoned persons between the signed parties to the treaty. (24) The treaty first began [*50] accepting signatures on March 21, 1983 and was officially implemented on July 1, 1985. (25) The Convention allows the participation of countries that are not members of the COE, and more countries continue and are encouraged to join this multilateral treaty. (26) There are now sixty-eight parties to this convention that allow the United States to transfer prisoners to and from their country. (27)

         [*51] As a way of further expanding its International Prisoner Transfer Program, the United States joined and helped create a second multilateral transfer treaty, the Inter-American Convention on Serving Criminal Sentences Abroad (OAS). (28) This Convention was originally formed on June 9, 1993 and was officially enacted for the first signed parties involved on April 13, 1996. (29) Today, there are twenty-two participating countries that have ratified and acceded to the OAS, and the numbers keep growing. (30)

         With the combination of the bilateral treaties and the two multilateral transfer conventions, as of April 19, 2019, the United States has a transfer relationship in their International [*52] Prisoner Transfer Program with twenty territories and eighty-five countries. (31) Currently, the United States does not wish to create anymore bilateral transfer treaties and would rather encourage countries to join one of the two multilateral conventions. (32) This is because negotiating and creating a bilateral treaty is much more costly and takes a long time to put into effect.(33)

   3. State Involvement in the International Prisoner Transfer Program

      The International Prisoner Transfer Program is a federal program, and most of the prisoners that get involved are those convicted in federal courts. (34) All states in the United States, however, now have some type of legislation that allows prisoner [*53] participation in the Transfer Program. (35) Each state has their own statutes governing their use of the Program and list certain state prisoner contacts to whom inquiries about transfers abroad may be made. (36) Most of the States' statutes in effect say that if a treaty exists between the United States and a foreign country, then a prisoner may be transferred through the state's participation in the relative treaty, subject to the consent and approval of the prisoner, governor, and/or state. (37) On the other hand, some states are more strict and lay out certain, more specific regulations, [*54] beyond that which are required in a treaty. (38) Additionally, some states have a specific position established and designated within their criminal justice systems to deal with any transfers through a transfer treaty. (39)

3. FACTS

   1. Inner Workings of International Prisoner Transfer Program

      1. Basic Requirements of International Prisoner Transfer Program

         First and foremost, the International Prisoner Transfer Program requires that a transfer treaty must exist between the United States and the foreign country which the prisoner wishes to either transfer to or from. (40) The core conditions within the [*55] Program that all transfertreaties contain, whether bilateral or multilateral, are:

         (1) the [prisoner] must be a national or citizen of the country [he or she wishes to] transfer to; (2) the sentencing country, the receiving country, and the prisoner must all consent to the transfer; (3) the ruling and sentence [of the prisoner] must be final with no [awaited] appeals or collateral attacks on the judgment or conviction; and (4)...the [crime the prisoner was convicted for] must also constitute a crime in the [country he or she is transferring to.] (41)

         A prisoner is also obligated to participate in a Consent Verification Hearing (CVH) to verify that the prisoner knows of the consequences of the transfer and is voluntarily consenting to such transfer (42) Furthermore, if a prisoner wishes to transfer outside of the United States to his or her foreign country of origin, then that prisoner must not be a citizen of the United States as well. (43)

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      2. Different Requirements of Transfer Treaties

         Although the above basic requirements of the Program are the same in every transfer treaty, whether bilateral or multilateral, there are still some small differences with each treaty. (44) For example, even though most transfer treaties have the requirement that a certain number of months must be remaining on the prisoners sentence, the number of months varies from treaty to treaty. (45) In addition, some treaties do not allow transfers of prisoners that are convicted of certain types of offenses, for example the Mexican bilateral treaty does not permit transfers for prisoners convicted of immigration offenses. (46) There are also treaties that provide that an inmate cannot be serving a certain specified punishment, like a life sentence. (47) Further, there [*57] are even some United States prisoner transfer treaties that do not technically require that the offender be sentenced to prison in order to be transferred to their home country to serve whatever sentence that offender does...