§ 97B. Treaties; transfer of prisoners to other countries
If a treaty in effect between the United States and a foreign country provides for the transfer or exchange of a prisoner to the country of which said prisoner is a citizen or national, the commissioner may, with the written consent of such prisoner, subject to the approval of the governor, and in of any such prisoner and take any other action necessary to initiate the participation of the commonwealth in such treaty.
Added by St. 1985, c. 578.
Historical and Statutory Notes
St. 1985, c. 578, was approved Dec. 10, 1985.
103 CMR: DEPARTMENT OF CORRECTION
103 CMR 462.00: INTERNATIONAL TRANSFER POLICY
Section
462.01: Purpose
462.02: Statutory Authorization
462.03: Cancellation
462.04: Applicability
462.05: Access to Regulations
462.06: Definitions
462.07: Notification to Inmates of International Transfer Program
462.08: Eligibility Criteria
462.09: Initiation of Transfer Application
462.10: Department of Correction Discretionary Review Process
462.11: Other Review Processes
462.12: Effect of Transfer upon Sentence being Served
462.13.: Transporting Inmate to Receiving State
462.14: Emergencies
462.15: Responsible Staff
462.16: Annual Review Date
462.17: Severability Clause
462.01: Purpose
The purpose of 103 CMR 462.00 is to establish procedures for foreign nationals to pursue a transfer
back to their country of origin.
462.02: Statutory Authorization
103 CMR 462.00 is issued pursuant to M.G. L. c. 124, §1(q) , and 127, § 97B.
462.03: Cancellation
103 CMR 462.00 cancels all previous department policy statements, bulletins, directives, orders, notices, rules or regulations regarding international transfers which are inconsistent with 103 CMR 462.00.
462.04: Applicability
103 CMR 462.00 is applicable to all foreign nationals serving Massachusetts state sentences within the Massachusetts Department of Correction.
462.05: Access to Regulations
103 CMR 462.00 shall be maintained within the central policy file and in the central policy file at each correctional facility and at each inmate library.
462:06: Definitions
- Administrator - The Administrator of the International Transfer Program is the Commissioner's designee responsible for developing, implementing, and monitoring departmental initiatives in the area of international transfers of inmates. The Director, Classification Division is designated as the Administrator of the International Transfer Program.
Classification - A system by which each inmate's needs are regularly assessed in relation to the inmate's placement and program resources. Classification regulations are found at 103 CMR 420.00.
Commissioner - The Commissioner of Correction. The Commissioner is responsible for policy development, budgetary strategies and decisions, managing political issues, development of legal strategies, establishing department objectives, disseminating public information, maintaining contact with other governmental agencies, professional supervision of Superintendents and site visits to correctional institutions. Staff reporting directly to the Commissioner shall include, but not be limited to:
- Deputy Commissioner
- Associate Commissioner of Administration
- Chief of Staff
- General Counsel
- Chief of Investigations
- Director of Public Affairs
- Legislative Manager
- Immediate Support Staff
Foreign National - An inmate incarcerated in a Massachusetts state prison who is not a United States citizen or who has dual citizenship status with the United States and another Country.
Receiving state - The country to which a foreign national may be transferred.
Sentence - Any punishment or measure involving deprivation of liberty ordered by a court on account of a criminal offense.
462.07: Notification to Inmates of International Transfer Program
- Foreign nationals shall be notified about the potential for a return to their home country.
- During the initial intake or classification process, following a foreign nationals commitment to the state prison system, a foreign national shall be given a form by which the inmate can declare the inmate's initial intention upon being notified of the transfer possibility.
462.08: Eligibility Criteria
An inmate meeting the following general eligibility criteria may request a transfer to his home country (the receiving state), provided that the receiving state is a party to a prisoner transfer treaty with the United States and provided:
- That the inmate is a national of the receiving state; and
- That the acts or omissions on account of which the sentence has been imposed constitute a criminal offense according to the law of the receiving state or would constitute a criminal offense if committed on its territory.
462.09: Initiation of Transfer Application
An inmate meeting the necessary eligibility criteria may initiate consideration of an international transfer by submitting an application form to his correction program officer.
462.10: Department of Correction Discretionary Review Process
- Within 30 days following the receipt of an application form, the designated staff member at the facility in which the inmate is currently residing shall schedule a classification review to consider the inmate for transfer to the inmate's home country (the receiving state) . All classification reviews shall be held in accordance with Departmental regulations concerning Classification, 103 CMR 420.00. Additionally, in any instance where an inmate is being considered for international transfer, following the superintendent's decision, the classification review shall be forwarded to the Administrator of the International Transfer Program (Director, Classification Division), for review and decision. If approved by the Administrator, the classification materials will be forwarded to the Commissioner for final review.
- If the Commissioner approves the transfer request, the application will be forwarded to the Governor's Office.
- If the Commissioner does not approve the transfer request, the application will not be forwarded to the Governor's Office.
462.11: Other Review Processes
- In addition to approval by the Commissioner, an inmate's transfer application must also be approved by each of the following: the Governor's Office; the United States Department of Justice; and the Receiving State. Denial by any one of the three reviewing authorities constitutes a denial of an inmate's transfer application; however, an inmate may reapply one year from the date of denial of his application.
- If the transfer request is approved by all of the reviewing authorities, the inmate will receive a hearing before a United States Magistrate at which time the Magistrate will determine whether the inmate consents to the transfer. if so, and provided that no proceeding by way of any appeal or of collateral attack is pending in Massachusetts and the inmate has waived all rights of appeal or collateral attack, the inmate shall be transferred.
462.12: Effect of Transfer Upon Sentence Being Served
Unless modified by a treaty, the Receiving State shall be bound by the legal nature and duration of the sentence as imposed by Massachusetts. The receiving state shall not aggravate, by its nature or duration, the sentence imposed by Massachusetts.
462.13: Transporting Inmate to Receiving State
Following approval of an international transfer request, the Administrator or his designee shall make the necessary arrangements with the United States Marshals to assume custody of the inmate so that they can deliver the inmate to the Receiving State.
462.14: Emergencies
Whenever in the opinion of the Commissioner or his designee, or the superintendent of a state correctional facility, an emergency exists which requires suspension of all or part of these regulations, the Commissioner or his designee or the superintendent may authorize such suspension, provided, that any suspension lasting more than 48 hours must be approved by the Commissioner.
462.15: Responsible Staff
- The superintendent of each institution shall be responsible for implementing and monitoring 103 CMR 462.00 within his/her institution.
- The Administrator of the International Transfer Program or his designee shall be responsible for implementing and monitoring 103 CMR 462.00 throughout the department.
462.16: Annual Review Date
103 CMR 462.00 shall be reviewed annually from the effective date by the Commissioner or his designee. The party or parties conducting the review shall develop a memorandum to the Commissioner with a copy to the central policy file indicating that the review has been completed. Recommendations for revisions or deletions shall be included. An updated listing of current signatories to prisoner transfer treaties shall be obtained from the United States Department of Justice.
462.17: Severability Clause
If any article, section, subsection, sentence, clause or phrase of 103 CMR 462.00 is for any reason held to be unconstitutional, contrary to statute, in excess of the Commissioner's authority or otherwise inoperative such decision shall not affect the validity of any other article, section, subsection, sentence, clause or phrase of 103 CMR 462.00.
Regulatory Authority
103 CMR 462.00: M.G.L. c. 124, § 1(q): C. 127, § 97B
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U.S. Department
of Justice
