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International transfer treaties: an update. (International).

One of the most effective methods developed for assisting offenders incarcerated in foreign jails has been the promulgation of treaties on the transferability of penal sanctions, commonly known as inmate transfer treaties. Although these treaties do very little to solve inmates' problems while they are in foreign countries, they do allow those individuals to return to their home countries to serve out their sentences once their trials are over.

Generally, inmate transfer treaties require that an individual be a citizen of the country to which transfer is requested. However, the Council of Europe (COE) Treaty permits "nationals" to qualify and further permits each state to define "national." This allows for the potential inclusion of a broader range of individuals. Pursuant to the treaty, the transfer process may be initiated by either the sentencing or receiving state.

To avail oneself of the inmate transfer treaty, the offender must have been sentenced and have completed or waived all appeals and collateral proceedings. The sending and receiving countries, as well as the inmate, must consent to the transfer. In addition, the individual generally must have committed an offense in the foreign country that is punishable as a crime under the laws in the home country (dual criminality) and must have at least six months of the sentence left to serve. Further, many treaties include certain offenses that are not transferable, including military offenses and offenses against the sovereign.

The United States has bilateral transfer treaties with Bolivia, Canada, France, Hong Kong, Panama, Peru, Thailand and Turkey, and is party to the multilateral COE Convention on the Transfer of Sentenced Persons. The Organization of American States (OAS) has a multilateral treaty called the Inter-American Convention on Serving Criminal Sentences Abroad, which the United States ratified May 25, 2001. The United States also has inmate transfer agreements with the federated states of the Marshall Islands, Micronesia and the Republic of Palau.

Countries in which inmate transfer treaties are in effect for U.S. citizens are: Albania, Armenia, Austria, Azerbaijan, Bahamas, Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Malta, Marshall Islands, Mexico, Micronesia, Netherlands (including Netherlands Antilles and Aruba), Norway, Palau, Panama, Peru, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Thailand, Trinidad/Tobago, Turkey, Ukraine, United Kingdom (including the British Virgin Islands, Cayman Islands and other British territories) and Venezuela.

Last August, Richard Atkins, chairman of the American Correctional Association's (ACA) International Committee's working group on inmate transfer treaties, provided an update on the treaties impacting U.S. citizens. Much of what follows comes from his report. Atkins also is the immediate past chairman of the International Bar Association Criminal Law Committee and president of International Recoveries LLC.

During 2000, there were 102 transfers to and 402 transfers from the United States. In 1999, the totals were 94 to the United States and 368 from the United States. The individual country breakdown for 2000 follows:
Transfers to the United States in 2000 from:

* Mexico, 83
* Panama, 5
* Portugal, 1
* Thailand, 12
* United Kingdom, 1

Transfers from the United States in 2000 to:

* Canada, 39
* Costa Rica, 2
* Denmark, 1
* France, 3
* Georgia, 1
* Germany, 1
* Greece, 3
* Israel, 9
* Italy, 2
* Mexico, 290
* Netherlands, 19
* Netherlands Antilles, 7
* Norway, 1
* Panama, 8
* Peru, 2
* Spain, 6
* Sweden, 1
* Thailand, 1
* Turkey, 1
* United Kingdom, 5

According to Atkins, "It is significant that most U.S. citizens return from countries where prison conditions are intolerable. For example, Mexico consistently remains the country with the most transfers to and from the United States. Very few return from European countries or Canada, where conditions are tolerable. Part of the explanation is that since federal parole was abolished in 1987, U.S. citizens who return typically can expect to remain incarcerated for longer periods of time. Therefore, inmates often choose to bear the isolation and separation from their families to attempt to gain conditional release (parole) at an earlier time, and then return to the United States without any supervision."

Last year, ACA's International Committee reported that 10 U.S. states did not have legislation that would permit foreign nationals serving state prison terms to return to their home countries under the applicable U.S. inmate transfer treaty. Atkins credited the work of ACA and the Association of State Correctional Administrators with reducing that number to four states: Delaware, Georgia, North Carolina and West Virginia are the only states that do not have inmate transfer-enabling legislation. "It is difficult to understand why any state would hesitate to pass such enabling legislation," said Atkins. "It is a `no-lose' situation for states. First, even when enabling legislation is in effect, the designated state authority has the power to deny transfer to any inmate. Second, keeping significant numbers of foreign offenders in state prisons is very expensive. The effective use of the treaty can substantially reduce such costs and the accompanying crowding. It also is clear that dealing with foreign offender populations is more time-consuming and difficult because of various cultural and social differences, including language problems."

Because inmates transferring to the United States from foreign countries are incarcerated in Federal Bureau of Prisons (BOP) facilities and not state prisons, Atkins further indicated, the use of transfer by any state always produces a net reduction in the prison population. "We have been unable to locate any nongovernmental agency or group, or any governmental office that is against state-enabling legislation," Atkins emphasized. "Possibly, the states do not understand how short and simple the language of such a bill can be. For example, the language used in California (Code 12012.1) states, `Whenever a treaty is in force providing for the transfer of offenders between the United States and a foreign country, the governor or a designee is authorized to give the approval of the state for a transfer, as provided in the treaty upon the application of a person under the jurisdiction of the Department of Corrections, the Department of Youth Authority and the State Department of Health Services.'"

Inmate transfer treaties are no longer in the formative stage. Their proliferation and use continue, and accession to the various multilateral treaties appears to be the method of choice for countries seeking to become involved with inmate transfers. The benefits of inmate transfers are significant.

Countries that use the treaties offer advice and assistance to inmates who wish to transfer. The consular officials in each involved country offer advice and help with the procedures. For more information, the U.S. Department of Justice (DOJ) recommends the following Web sites:

* -- DOJ, Criminal Division, Office of Enforcement Operations. This site provides detailed information regarding how the inmate transfer program works in the United States.

* -- BOP. Inmate transfer information for inmates in the custody of the U.S. federal government. Once on BOP's home page, click "FOIA/Policy," then click "5000 Series -- Inmate and Custodial Management," and scroll down to the Program Statement "5140.34-Treaty Transfer of Offenders to or from Foreign Countries."

* -- U.S. Department of State. This site contains information to help Americans incarcerated abroad. It answers many questions that Americans and their families may have about inmate transfer.

* http://conventions.coe -- COE. The COE multilateral inmate transfer treaty is Treaty No. 112. This site contains the language of the treaty and a detailed list of the declarations and reservations of each participating country.

* -- OAS. OAS has a multilateral treaty as well. The treaty, No. A-57, is called the Inter-American Convention on Serving Criminal Sentences Abroad. This site lists which countries have signed the convention and where they are in the ratification process.

Gary Hill is president of CEGA Services Inc., an international consultant in crime prevention, criminal justice and corrections, and chairman of ACA's International Relations Committee.
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Author:Hill, Gary
Publication:Corrections Compendium
Geographic Code:1USA
Date:Jan 1, 2002
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