It is not uncommon during plea negotiations for a foreign national to ask the USAO to guarantee that he will be transferred to his home country in return for pleading guilty. Because the discretion to grant or deny transfer requests is vested solely in the Attorney General or his designee (OEO), the USAO is without the power to make this promise either orally or in writing. The USAO, however, can represent that it will support the transfer application, that it will take no position on the request, or that it will not oppose the defendant's transfer request. In drafting the plea agreement, it should be made clear that: (1) the USAO is distinct from OEO (this distinction can be specified either in the definition section of the agreement or in the plea agreement provision addressing transfer); (2) OEO has been entrusted with the sole authority to make the transfer decision; and (3) although the USAO has the authority to recommend or not oppose transfer, it has no power to promise or guarantee that the United States will approve transfer or that the prisoner is even eligible for transfer. Although it may not be possible for plea agreement language to be uniform in every case, in most situation, the following language should be used:
If the defendant is eligible and applies to transfer his sentence pursuant to the international prisoner transfer program, the [name of prosecuting office] agrees [to support, to not take a position, or to not oppose] the defendant's transfer application. Defendant acknowledges and understands, however, that the transfer decision rests in the sole discretion of the Office of Enforcement Operations (OEO) of the Criminal Division of the United States Department of Justice and that the position of the [name of prosecuting office] is neither binding nor determinative of the positions of other federal agencies or on the final transfer decision of OEO. Defendant further understands that in addition to OEO, federal law and the underlying transfer treaties require that the foreign government must also approve the transfer.
When evaluating whether to include a prisoner transfer provision in the plea agreement, the USAO must remember one of the main objectives of transfer is to further the rehabilitation of the prisoner. The likelihood of this goal being realized is greatest when a significant portion of the sentence remains to be served, the prisoner has strong family, social and cultural ties with his home country and the prisoner does not have a significant criminal history. The USAO also needs to be aware that the prisoner transfer process is time consuming and involves numerous steps, many of which must be taken by offices other than the International Prisoner Transfer Unit (IPTU) of OEO. In no situation should the USAO represent that the IPTU is able or will expedite any step of the transfer process. Finally, for a number of reasons, including the statutorily protected rights of victims, the United States may be unable to transfer a prisoner owing outstanding criminal restitution.
Any USAO considering inserting a prisoner transfer provision in a plea agreement is encouraged to consult with an attorney in the IPTU by calling 202-514-3173.If the decision is made to include a prisoner transfer provision in the plea agreement, the above language should be used. Should it be necessary to amend this language and these changes materially deviate from the above language, the USAO shall consult with the IPTU. Because inartfully drafted agreements may harm the international relationships of the United States, as well as subjecting plea agreements to collateral attack, IPTU review is essential in those circumstances.
Finally, in the absence of exceptional circumstances, the Department strongly discourages the USAOs from asking an offender to waive his right to apply for transfer as a condition in the plea agreement. The United States has prisoner transfer treaty relationships with almost 80 countries. The treaties and the enabling federal statute set forth the eligibility requirements for transfer. Requiring an eligible prisoner to waive his right to apply for transfer has the potential for creating concern and dissent from our international transfer partners and should be avoided unless there is a strong federal interest in doing so. Inclusion of such a provision in a plea agreement should not be done without first consulting with an IPTU attorney.