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742

Relationship of Prisoner Transfer to Extradition

International prisoner transfer is sometimes confused with extradition. They are, however, two very distinct procedures that are handled by two different sections of the Criminal Division. Extradition, which is handled by the Office of International Affairs (OIA), involves bringing an indicted defendant located in a foreign country, back to the United States so he can be tried. In contrast, prisoner transfer, which is handled by the International Prisoner Transfer Unit of the Office of Enforcement Operations (OEO) involves transferring a prisoner who has already been convicted and sentenced back to his home country which assumes responsibility for administering the transferred sentence. Although the two procedures are completely different, some cases may involve both procedures. An extradited prisoner who is convicted and who is from a country with which the United States has a prisoner transfer relationship may be eligible to apply for transfer.

Occasionally the issue has arisen as to whether the United States can promise transfer in return for an offender agreeing not to oppose an extradition request. In most situations, OEO does not favor such agreements since it totally restricts its discretionary authority, is frequently inconsistent with the rehabilitative goal of transfer and the possibility exists that there could be valid reasons for transfer to be denied that will not be known at the time of extradition. If a USAO believes it has compelling reasons to try to link a promise of transfer with an extradition request, it shall first consult with OEO and receive its approval before making a transfer representation to the foreign offender. Just as with representations of transfer in plea agreements, only OEO has the authority to make these promises on behalf of the United States. See Criminal Resource Manual 740.

There are two narrow and very limited situations, however, in which extradition and prisoner transfer can be linked and this involves the countries of Israel and the Netherlands. Because these two countries do not normally extradite their own nationals for trial in another country, the United States has agreed by treaty with Israel and by the exchange of diplomatic notes with the Netherlands, to permit the transfer of convicted extradited nationals from these countries following completion of the trial, sentencing and processing of the transfer request. If the USAO is involved in such an extradition it should confer with the OEO early in the proceeding to notify it of the case and to discuss the USAO's role and responsibilities in the transfer process.

[new March 2012] [cited in USAM 9-35.010; Criminal Resource Manual 737; 739]