9-35.000 - International Prisoner Transfers

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]