The international prisoner transfer program was formally established in November 1976, after the bilateral Treaty on the Execution of Penal Sentences between the United States and Mexico entered into force. Since signing the Mexican Treaty, the United States has entered into other bilateral transfer treaties and has acceded to two multilateral transfer conventions, the Council of Europe Convention on the Transfer of Sentenced Persons (the COE Convention) in 1985, and the Inter-American Convention on Serving Criminal Sentences Abroad (the OAS Convention) in 2001. Together these international agreements give the United States prisoner transfer relationships with almost 80 countries and territories (see Criminal Resource Manual at 744 for a list of participating countries).
Provided that treaty and statutory requirements are satisfied, the transfer treaties to which the United States is a party permit it and its treaty partners to return a foreign national, who is sentenced and imprisoned in their country, to the prisoner's home country to serve the time remaining on his sentence. Transfer may occur in one of two directions. First, a country may receive one of its nationals from a foreign country which has convicted and sentenced the national for committing a criminal offense. The home country accepts responsibility for enforcing or administering the transferred sentence. Second, a country may return a foreign national who has been convicted and sentenced for a crime to his home country to serve his remaining sentence.
Although most inmates who are transferred from the United States under these treaties are Federal prisoners, all states have enacted legislation permitting them to participate in the international prisoner transfer program. When a foreign national is incarcerated in a state prison, he must first obtain the approval of the state before his application can be reviewed and approved by the Federal Government. The Department of Justice frequently approves state cases unless a compelling federal interest exists or a treaty requirement has not been satisfied. For many reasons, to date, the states have not transferred a significant number of prisoners; state prisoners typically average less than five percent of all transfers.
The initial impetus for the United States to develop an international prisoner transfer program was concern over the poor conditions to which Americans convicted abroad were exposed. Well-publicized reports indicated that Americans incarcerated in certain countries were being subjected to abusive and inhumane conditions. Thus, the transfer program was viewed as a means of bringing these Americans back to the United States and allowing them to serve their sentences in American prisons where conditions were more humane. Concern over the prisoner conditions experienced by Americans incarcerated abroad, however, was not the only reason that the United States decided to institute the transfer program. Indeed, there was a fundamental belief that the rehabilitative prospects of a prisoner were strongest if the prisoner were located near his home where he could be close to his family and friends, where he would be in a familiar culture, and in a place where his native language was spoken. In addition, there was a recognition that transfer would provide a means to ease the diplomatic and law enforcement tensions that arise between nations when one country incarcerates another country's nationals. There was also the belief that transfer would ease the administrative burden of incarcerating prisoners who spoke different languages, had varying dietary needs, practiced different religions and had differing cultural and belief systems.
As the United States began to participate in the prisoner transfer process, it also recognized that there were two other significant benefits to the program. The first was a law enforcement benefit while the second was an economic one. With respect to the law enforcement benefit, in many instances, prisoner transfer is preferable to traditional removal. Traditional removal or deportation does not give the receiving country any tools or authority to manage the deported criminal since it occurs after the sentence has been served. In contrast, prisoner transfer places the prisoner directly in the custody of foreign law enforcement officials who have been provided with detailed information about the prisoner, including official accounts of the criminal conduct committed. This transfer procedure permits the receiving country to acquire initial control over the prisoner, to monitor the prisoner's activities, to address any treatment or rehabilitative needs of the prisoner, to assist in the eventual reintegration of the prisoner into society, and to take appropriate steps to protect society from the prisoner. This last benefit is particularly significant for certain types of repeat or predatory offenders, such as sexual offenders. Many countries, such as Canada, have systems to monitor these offenders and to provide notice to communities when such an offender is living in their neighborhood.
In the early years of the transfer program, the number of returning Americans received by the United States exceeded the number of foreign nationals that the United States transferred. However, over time, the composition of the transfers has changed, and now about 75-80 percent of the transfers are foreign nationals being returned to their home countries. Because the United States Attorneys' Offices are primarily involved in the transfer of foreign nationals from the United States, the focus of this Chapter is on the handling of requests to transfer prisoners from the United States to foreign countries.
[updated March 2012] [cited in JM 9-35.010]