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739

March 14, 2012, Memorandum from AAG Breuer to All United States Attorneys' Offices

March 14, 2012
MEMORANDUM

TO: ALL UNITED STATES ATTORNEYS
HEADS OF LITIGATING COMPONENTS
FROM: Lanny A. Breuer
Assistant Attorney General
SUBJECT: International Prisoner Transfer Unit
This memorandum is designed to ensure that all United States Attorneys Offices (USAOs) and Department litigating components are familiar with the International Prisoner Transfer Program and its significant role in law enforcement and international affairs. In addition, I would like to take the opportunity to update you on recent developments in the transfer program, address those areas where we need your assistance, and seek your continuing participation and cooperation in the Department s administration of the transfer program.

Background of the International Prisoner Transfer Program

In 1977, Congress enacted legislation authorizing the International Prisoner Transfer Program. See 18 U.S.C. §§ 4100-4115. This legislation, together with subsequent treaties to which the United States is a party, permit the transfer of foreign prisoners from the United States back to their home countries to serve the time remaining on their sentences. Americans convicted abroad also are eligible to participate in the transfer program and to have the United States administer the enforcement of their foreign sentences. Since negotiating its first transfer treaty with Mexico in 1977, the United States has established transfer treaty relationships with almost 80 countries, pursuant to 12 bilateral treaties and two multilateral conventions. In addition, all 50 states, Puerto Rico, and the Northern Mariana Islands have enacted legislation permitting the transfer of state and territorial prisoners under the transfer program.

The original impetus for the transfer program was largely a humanitarian one, as the first treaties were motivated in part by concerns about the extremely harsh conditions some Americans faced in foreign prisons, as well as by a general interest in making it possible for persons who had violated the laws of a foreign country to complete their prison sentences in a familiar culture and in institutions closer to their families. Prisoner transfer also was viewed as an important means to foster the rehabilitation of offenders, as it is generally believed that the chances for rehabilitation increase when the offender is in his familiar home and societal environment near family and friends.

Our experience with the transfer program over the years has demonstrated that, in addition to furthering these objectives, the transfer program provides other significant benefits to the United States. Foremost among these benefits is that the program assists in reducing the size of the large and costly population of foreign nationals in overburdened state and federal correctional facilities. The transfer program also assists correctional authorities by helping to alleviate a wide array of administrative problems often associated with an alien prison population. Finally, the transfer program provides considerable law enforcement benefits by allowing the receiving country to obtain detailed, official accounts of the criminal conduct committed by their nationals abroad, as well as permitting the receiving country to monitor the offender, both before and after his release. These opportunities are unavailable when immigration authorities simply deport a foreign offender at the completion of his or her sentence.

Congress vested the authority to administer the transfer program in the Attorney General, and the Attorney General delegated this authority to the Director of the Office of Enforcement Operations (OEO) within the Criminal Division. The International Prisoner Transfer Unit (IPTU), a unit within OEO, is responsible for the day-to-day administration of the transfer program. Since its inception, the work load of the IPTU has increased each year. Although, initially, more Americans sought transfer than foreign nationals, foreign national applicants now constitute a majority of the transfer applicant pool. Although the statistics vary by year, for the years 2000 through 2011, IPTU processed between 1,300 to 1,500 transfer cases each year. Most of the these cases came from applications submitted by foreign nationals in federal prisons. Of these cases, approximately 65 percent were from Mexican nationals. After Mexico, Canada was the United States second largest transfer treaty partner. During this 12-year period, a total of 3,126 foreign nationals transferred out of the United States, the majority of whom were Mexican nationals. Unfortunately, a significant number of the foreign national applicants approved by the United States do not transfer either because the prisoner s home country denies the transfer or because of delays in deciding the case, thereby making the transfer impractical because too little time remains on the sentence.

Treaty Requirements and Processing a Transfer Request

A prisoner transfer cannot occur unless the mandatory treaty and statutory conditions have been satisfied. The most significant statutory requirement is that there must be a treaty in effect in order for a prisoner to participate in the program. 18 U.S.C. § 4100(a). Another essential requirement is that the sentencing country, the receiving country, and the prisoner must all consent to the transfer. Additional requirements common to all treaties are: the prisoner must be a national of the receiving country; the sentence must be final, with no pending appeals or collateral attacks on the conviction or sentence; dual criminality must exist (i.e., the offense must be considered a crime in both countries); and there must be a minimum amount of time (usually six months) remaining on the sentence.

Federal prisoners may apply to transfer once they have been sentenced and arrive at the prison designated by the Bureau of Prisons (BOP). A prisoner s country may also make a request for the transfer. Once BOP receives the transfer request, prison staff will prepare an application package, which is forwarded to the IPTU for consideration.

Thereafter, the IPTU collects pertinent information from various sources, including the prosecutor, the responsible law enforcement agency, and Immigration and Customs Enforcement. The IPTU evaluates this information, together with the BOP application package, and makes a recommendation to the Director of OEO, who makes the final transfer decision. Although these internal guidelines assist the review and ensure decisional consistency, they are not rigid rules. Each case is evaluated on its particular facts, and the decision whether to approve the transfer must be balanced with the other interests presented by the case.

Role of the United States Attorneys Offices and Department Litigating Components in the Transfer Process

There are four areas in which a USAO or Department litigating component may become involved in the transfer program. The first is in the negotiation of a plea agreement when the offender may ask the prosecutor to include a representation that the government will support or not oppose a subsequent request for transfer. Any USAO or litigating component presented with such a request should carefully consult the requirements and guidance provided in Part 9-35.100 of the U.S. Attorneys Manual and the Criminal Resource Manual § 740. Second, as detailed in section 741 of the Criminal Resource Manual, the IPTU may seek the assistance of the USAO or litigating component in procuring a writ of habeas corpus or other order to produce the prisoner at the consent verification hearing that is required as part of the transfer process. Third, if a USAO or litigating component is seeking the extradition to the United States of nationals from the Netherlands or Israel, it should be aware that the United States must agree, as a condition of the extradition, to transfer the defendants back to their home countries once the prosecution is completed and the sentence is final. In such cases, the USAO or Department litigating component, in addition to working with the Criminal Division s Office of International Affairs, should contact the IPTU. See Criminal Resource Manual § 742.

Finally, USAOs and Department litigating components are often involved in responding to inquiries from the IPTU about the prosecutor s views concerning a transfer request. This determination is very important. Upon receiving the case for review, the IPTU analyst emails an inquiry to the USAO or litigating component seeking information from the prosecutor, including his or her views as to whether a transfer should occur and whether there are any pending appeals or post-conviction motions. This inquiry is critical, as the transfer treaties do not permit the transfer of a prisoner with a pending appeal or other pending litigation. This is also the prosecutor s opportunity to alert the IPTU to any factors that he or she believes weigh against the prisoner s transfer. The IPTU requests that this information be provided within 14 calendar days from the date the email was sent. If the USAO or litigating component needs additional time in which to prepare its response, please notify the IPTU within 14 days of receiving the original inquiry. Unless a response or a request for an extension of time is received within 14 days, the IPTU assumes that the USAO or litigating component has no objection to the transfer.

In making our determination whether to approve a transfer, we consider very seriously the legitimate law enforcement concerns that USAOs and Department litigating components raise including, for example, information that the prisoner is a subject of another criminal investigation, is needed to testify, or has threatened the safety of a witness. In most instances, these concerns will cause us to deny the transfer request.

Other, more general, concerns raised by prosecutors, however, will often not cause us to deny a transfer. For example, from time to time, we do not receive case-specific reasons for opposing the transfer, but instead will receive a response from the prosecutor voicing general opposition to the transfer program itself. In such instances, the prosecutor typically expresses a concern that the sentence served in the home country will be less than what would be served in the United States; a distrust of the integrity of the prison system in the foreign country; a general concern that the prisoner will return to the United States and commit a new crime; or a strong, personal belief that the prisoner should serve his sentence in the United States. Though understandable, non-case-specific concerns such as these do not assist in the assessment of whether transfer is appropriate in a specific case. Moreover, some of these general concerns about the transfer program are attributable to misunderstandings and misconceptions regarding the operation of the program; therefore, let me address—and dispel—some of those here.

For example, some prosecutors mistakenly believe that the prisoner will serve less time in custody or be immediately released if he is transferred to his home country. Receiving countries are required by the terms of the governing treaty to apply their own laws and procedures with regard to the execution of the sentence, including the availability of parole, good-conduct time, and labor credits. Sometimes, especially with regard to Canada and European countries, this will result in the foreign national serving less time in prison than if he had remained in the United States. However, with respect to Mexico, a country receiving approximately 51 percent of the prisoners transferred from the United States, this is often not the case. Rather, most transferred Mexican nationals serve sentences that approximate the sentences they would have served had they remained in the United States. Indeed, we have learned that most prisoners serve slightly more time in Mexico than they would have served in the United States because Mexico, unlike the United States, does not award the equivalent of good-time credits to a large categories of offenders, including drug traffickers.

Even when a transferred prisoner may serve less time in prison, this result, standing alone, is not a sufficient reason to deny the transfer request. The United States and its treaty partners recognized at the time they entered into these treaties that the administration of the sentence by the receiving country could result in the prisoner serving a shorter prison term than if he had remained in the sentencing country. However, the United States and its treaty partners accepted this result in return for their ability to have their nationals returned. Experience has confirmed that most of the returning Americans serve less time in the United States than if they had remained in the foreign country in which they were convicted. Because the United States is willing to accept this benefit for its citizens, it cannot equitably object to a transfer simply because a foreign national might get the same benefit.

Department prosecutors also have from time to time voiced concerns about the integrity of the Mexican prison system. Although some integrity problems may exist in the Mexican criminal justice system, positive efforts continue to be made to address such problems. It is important to recognize that there appears to be little or no information to substantiate the view that transferred prisoners are able to buy or negotiate a lesser sentence in Mexico. Indeed, Mexico has informed the United States that it limits its transfer approvals to low-security, first-time offenders who have no connection to a drug cartel or organized crime, and does not consider for transfer high-profile offenders who are more likely to present risks to the security and integrity of its prison system.

Department prosecutors have also occasionally expressed concern that transferred prisoners will return to the United States and commit new crimes. Although there is no guarantee against recidivism for any category of offender, our experience has been that the possibility that a foreign national will return to the United States after he has completed service of his transferred sentence can be greatly minimized by ensuring that removal orders are obtained from United States immigration authorities prior to transfer, and by limiting transfer approvals to those candidates who have strong family ties to their home countries and who have minimal or no prior criminal record. We ensure that all Mexican nationals have removal orders before we complete their transfers to Mexico. Moreover, as a general rule, we have found that offenders who are transferred to distant locations, especially to countries in Europe or Asia, are unlikely to reappear in the United States after they are released from confinement abroad.

When evaluating a transfer request, it is important to appreciate that the transfer of offenders serves an important law enforcement purpose. Unless transferred, foreign nationals who are convicted of a crime in the United States will be deported following the completion of their sentences. A deported offender will be released into that country s general population, usually without the home country receiving any information about the prisoner s criminal conduct and without the home country having the power to monitor or control his activities in any way. By contrast, a transferred prisoner is placed within the custody and control of the receiving country, which also receives the details and official conclusions regarding the criminal conduct of the transferred prisoner.

It is also critical to recognize that the treaty obligations of the United States and Department policy require that we give fair consideration to requests for transfer. The treaties governing the transfer of prisoners reflect a determination by the United States that prisoner transfer should be available to foreign nationals incarcerated here, just as it should be available to American nationals incarcerated abroad. Prisoner transfer serves to reduce prison overcrowding within United States facilities, rehabilitate offenders, and promote harmonious relations with countries whose cooperation may be necessary for other law enforcement purposes. Further, the United States participation in prisoner transfer treaties with approximately 80 countries allows the United States to bring back Americans who have been convicted abroad, some of whom are incarcerated in extremely difficult circumstances. Thus, a general practice of recommending against transfer would be contrary to the purpose of the transfer treaties and inconsistent with important law enforcement and foreign policy interests of the United States.

Finally, we ask for your assistance in one additional area. To ensure that transfer requests are processed in a timely manner, it is essential that the USAOs and Department litigating components respond to IPTU inquiries within 14 calendar days of receiving the IPTU request. If the IPTU has not heard from your office with either a response or a request for extension of time within 14 days, it will assume that the prisoner has no pending appeals or other post-conviction litigation and that your office takes no position on the transfer request. This policy is necessary to assist in avoiding unnecessary delays in processing transfer applications.

For the transfer program to achieve its objectives and to function efficiently, IPTU must have the cooperation and active participation of the USAOs and Department litigating components. We look forward to working cooperatively with your offices in the administration of the International Prisoner Transfer Program, and we remain available to respond to any questions or concerns that you may have. Inquiries about the program may be directed to Paula Wolff, Chief of the IPTU, or to the IPTU attorney seeking your views on a transfer request at (202) 514-3173. General information about the transfer program can be found at: http://www.justice.gov/criminal/oeo/iptu/.

[new March 2012] [cited in USAM 9-35.010; Criminal Resource Manual 737]