9-35.010
Introduction
|
The International Prisoner Transfer Program began in 1976
after Congress passed enabling legislation (18 U.S.C.
§§ 4100 - 4115) and the Federal Government negotiated
the first in a series of treaties permitting the transfer of
prisoners from the countries in which they had been convicted to
their home countries where they will serve the imposed sentence.
The United States is now party to twelve bilateral transfer
treaties and two multilateral transfer conventions giving it
transfer treaty relationships with almost 80 countries and
territories. These agreements allow the United States: (1) to
transfer convicted foreign nationals in state or federal custody
back to their home country, where the receiving country assumes
responsibility for enforcing the sentence; and (2) to receive the
transfer of Americans convicted abroad and to assume
responsibility for enforcing the foreign sentence. Transfer can
only occur if the pertinent statutory and treaty requirements are
satisfied, including receiving the consent of the sentencing
country, the receiving country and the prisoner.
Congress gave the Attorney General the authority to
administer the international prisoner transfer program. This
authority has been delegated to the Director and Associate
Directors of the Office of Enforcement Operations (OEO) in the
Criminal Division of the Department. Within OEO, the
International Prisoner Transfer Unit (IPTU) oversees the daily
administration of the transfer program.
The Criminal Resource Manual has a more complete description
of the International Prisoner Transfer Program, and the
procedures that must be followed.
|
[updated March 2012]
9-35.100
Role of the United States Attorneys' Offices in
the Transfer Process
|
There are four areas in which the USAOs could have a role in
the transfer process. First, in order to decide transfer
applications, the IPTU collects and evaluates information
pertinent to the transfer decision. The United States Attorneys'
Offices are responsible for furnishing pertinent information and
recommendations to the IPTU that will assist it in making a
transfer determination. These responses should be timely and
provided no later than 14 calendar days from the date of the
initial faxed or emailed request. Unless the USAO has contacted
the IPTU and indicated that it needs additional time to respond
to the request, the IPTU will interpret a failure to respond as
indicating that the USAO takes no position on the transfer or has
no objection to the transfer request.
Sometimes prisoner transfer will be raised during plea
negotiations with the prisoner seeking a guarantee of prisoner
transfer. As discussed in more detail in the Manual at 740, the
USAO cannot guarantee that prisoner transfer will occur although
it can state in a plea agreement that it will support or not
oppose transfer. The USAO is encouraged to consult with the IPTU
before finalizing a plea agreement containing promises or
representations about prisoner transfer. Recommended plea
agreement language is provided in the Manual at 740. If the
USAO wishes to substantially deviate from this language, it shall
consult with the IPTU before finalizing the plea agreement.
The third area in which prisoner transfer may arise is when
extradition is linked to a promise of prisoner transfer. This
situation arises infrequently and when it does occur, it appears
most typically with the extradition of nationals from the
Netherlands and Israel. As explained in the Manual at 742, when
this occurs, the USAO will need to coordinate with the IPTU and
the Office of International Affairs in the Criminal Division and
to provide specified notifications, information and documents.
Finally, 18 U.S.C. § 4107, requires that a consent
verification hearing (CVH) must be held for all transferring
prisoners, regardless of whether the prisoner is in federal or
state custody. See
Criminal Resource Manual at 741. In order to bring the
state prisoner from a state prison to a federal courthouse for
the CVH, it is necessary for a writ of habeas corpus to be
issued. The USAO located in the district of the court holding
the hearing is responsible for filing the motions necessary to
secure this writ. The USAO will also be asked to assist in
obtaining writs of habeas corpus or orders to produce pursuant to
18 U.S.C. § 3621(d) for federal prisoners who must be
removed from the prison and taken to court for their consent
verification hearings.
[updated March 2012] [cited in
Criminal Resource Manual 739]
9-35.200
Limitations on United States Attorneys' Offices Regarding Oral and
Written Promises of Transfer
|
Congress vested the authority to make transfer determinations
in the Attorney General or his designee. As a result, no other
government official has the power to make the transfer decision
or to promise that transfer will occur. 18 U.S.C. § 4102.
Consequently, USAOs must take great care not to promise or
represent, either orally or in writing, that the United States
will approve a particular transfer request. This caution is
particularly important when negotiating a plea agreement with a
defendant. Although the USAO can agree not to oppose the
transfer or to decline to take a position on the transfer, it can
never represent on behalf of the United States that the transfer
request will be approved. See
Criminal Resource Manual at 740
for further discussion and for sample language to use in plea agreements.
[new March 2012]
| | | | | | |
| | |