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735

Effect of Prisoner Transfer and Administration of the Transferred Sentence

When a prisoner is transferred, the responsibility for administering the sentence belongs exclusively to the receiving country. The sentencing country loses jurisdiction over the prisoner's sentence, and violations of the terms or conditions of the original sentence, including supervised release, cannot be enforced even if the prisoner returns illegally to the United States after being released from the foreign prison. The sentencing country, however, retains jurisdiction to modify or vacate the sentence, including the power to grant a pardon or amnesty.

Under most of the treaties, the receiving country will "continue the enforcement" of the transferred sentence. Such continued enforcement will be executed under the laws and regulations of the receiving country, including any provisions for the reduction of the term of confinement by parole, conditional release, good-time release, or otherwise. The French bilateral treaty, the Turkish bilateral treaty and the COE Convention, provide the receiving country with the additional option of "converting" the sentence through either a judicial or administrative procedure, into its own sentence. When a sentence is converted, the receiving country substitutes the penalty under its own laws for a similar offense. The receiving country, however is bound by the findings of fact insofar as they appear in the judgment, and it cannot convert a prison term into a fine or lengthen a prison term. Only a small number of countries have elected to convert transferred sentences.

The United States has adopted the continued enforcement method of administering the transferred sentence. Accordingly, after a prisoner is returned to the United States, the United States Parole Commission conducts a transferee release determination hearing and determines the release date of the transferee in accordance 18 U.S.C. § 4106A (or in accordance with 18 U.S.C. § 4106 in the case of transferees who committed their offenses prior to November 1, 1987). Such release date would, with respect to transferees whose offense were committed on or after November 1, 1987, include a term of supervised release following release from prison.

The receiving country may never administer or convert the sentence in such a way that the time the transferred person spends in prison exceeds the full term of the sentence imposed by the sentencing country. Nevertheless, it is possible for a prisoner to spend less time or more time in his home country because of differences in laws regarding applicable prison credits and the availability of parole. For example, it is not unusual for a prisoner transferred to Canada and many European countries to spend less time in prison than if they had remained in the United States. This result frequently occurs because these countries have parole whereas the United States no longer awards parole. In contrast, it is not unusual for a prisoner transferred to Mexico to spend the same or greater amount of time in prison than if he had remained in the United States. This result is because the United States applies good time credits and Mexico does not.

Although it is possible that some transferred prisoners may serve less time in prison, such a result is neither unexpected nor inconsistent with the goals of the transfer program. The United States and its treaty partners recognized at the time they entered into these international agreements that the administration of the sentence by the receiving country, which involved applying criminal laws unique to that country, could result in a prisoner serving less prison time than if he had remained in the sentencing country. These same countries, however, were willing to accept this result in return for the ability to have their nationals transferred. It is important to realize that it is not unusual for a returning American to serve less time in an American prison than he would have served if he had remained incarcerated in the sentencing country. Thus, it would place the United States in a awkward diplomatic position to accept this benefit for its citizens yet object to a transfer of a foreign national because he might experience a similarly beneficial sentencing outcome in his native country.

[updated and renumbered March 2012] [cited in USAM 9-35.010]