International Transfer of Prisoners

An international transfer of a prisoner occurs when a defendant is convicted of a crime in one country and is transported to their country of citizenship to serve their sentence.

The International Prisoner Transfer Program

In 1977, the United States government negotiated the first in a series of treaties that allowed for the transfer of prisoners from countries where they were convicted of crimes to their home countries. This program is designed to ease certain hardships that defendants far from home faced and to facilitate their rehabilitation.

United States prisons may also be transferred to and from countries with which the U.S. has treaties.

Who Is Eligible for the International Prisoner Transfer Program?

Pursuant to the provisions of the governing treaty, a prisoner may be transferred to a country of their nationality or citizenship. It is important to note that the prisoner cannot be transferred until the judgment and sentence in their case are final.

This means that there cannot be any appeals or other types of collateral attacks on the judgment or sentence pending. Certain prisoner transfer treaties also impose fines that must be paid before the prisoner’s transfer as part of their criminal sentence.

Depending on the provisions contained in the governing treaty, a prisoner who is convicted of certain types of crimes, for example, military offenses and political offenses, or those who have less than a specified amount of time on their sentences, typically six months or one year, depending on the treaty involved, will not be eligible for transfer.

What Does the Prison Transfer Program Entail?

The prisoner transfer program entails many aspects, including:

• The prisoner notifying the United States Embassy that they want to be transferred under the treaty;
• It is up to the United States Department of Justice (DOJ) to determine whether the prisoner can be transferred to the United States;
• If DOJ agrees to the defendant’s transfer, the U.S. Embassy will contact the foreign ministry;
• A consent verification hearing is held if both governments approve the prisoner’s transfer request; and
• The two governments will arrange for the prisoner’s transfer at a time that is mutually convenient.

International agreements governing the transfer of sentenced individuals handle the transfer of foreign nationals back to their country of origin. There are many states that have a broad definition of nationality, so non-nationals who reside in or have close ties to the proposed administering state will be accepted because of the importance of social bonds in rehabilitating and reintegrating prisoners.

There are various bilateral agreements and multilateral instruments that also have a flexible use of the term national. The term national may refer to an individual who has nationality, residence rights, or close ties to a particular country.

It is important to note that state parties can also define the term national under other instruments. This can be accomplished by a single declaration of a joint agreement.

A state can also exercise control over the recipients of these types of transfers using these provisions and declarations.

Why Consider Transferring Sentenced Persons?

When a state is considering whether or not to ratify a multilateral convention on the transfer of sentenced individuals or to enter into a bilateral transfer agreement with another state, it should assume that the state may, in the future, want to transfer sentenced individuals to or from other states that are parties to such instruments or agreements.

When entering into this type of agreement, it is common for a state to have to decide whether or not to transfer a foreign national who is serving a sentence in prison or to accept a request from a different state to receive a sentenced individual. The state must also be responsible for implementing the decision or sentence imposed by a court in the state in addition to all of the applicable administrative and judicial responsibilities.

It is important to consider why foreign prisoners are sent abroad or why nationals are sent to their home countries to serve their sentences. It may be assumed that traditional sentencing goals were considered when a sentence is imposed.

The court that handed down a defendant’s sentence should presumably have balanced the requirements of retribution, rehabilitation, deterrence, and incapacitation, which is required by the rules that govern the exercise of sentencing discretion. It is also important that the sentence imposed on a defendant in the sentencing state specifies how long it will take to implement that sentence in the state administering the sentence.

The priorities at the implementation stage may be different from the priorities that govern the imposition of the sentence. This may lead to different priorities when a sentenced individual is transferred.

Rehabilitation, Resocialization, and Reintegration

Defendants who are sentenced to imprisonment are rehabilitated to ensure that they are able to resocialize and eventually reintegrate into society. The primary objective of sentencing at the time it occurred may have been to ensure that the defendant received retributive punishment for their crime.

In some situations, a defendant’s sentence may be implemented in a different way that meets the requirements of their initial sentence but differs in effectiveness in rehabilitating the sentenced defendant. Alternative methods for implementing a sentence may include transferring a foreign sentenced defendant to serve their sentence in their home country.

Generally, defendants who serve their sentence in their home country are better able to rehabilitate, resocialize, and integrate back into their communities. Having social ties in a certain state is a good reason to transfer a sentenced defendant to that state to serve their sentence.

Additionally, if a defendant is far from their family and friends, it may be counterproductive as families can offer social capital and support, which will improve the likelihood of successful resettlement and reintegration. International human rights laws provide support for encouraging the transfer of sentenced defendants.

States that have ratified or acceded to the International Covenant on Civil and Political Rights recognize the covenant’s position that the essential aim of a penitentiary system is to reform and socially rehabilitate prisoners. This duty of facilitating the social rehabilitation of an offender is reflected in the Standard Minimum Rules for the Treatment of Prisoners.

If the prison conditions that exist in the sentencing state or regime are poor and do not meet international minimum standards, there is a humanitarian argument for a defendant’s transfer. This applies especially in cases where the defendant’s specific circumstances may exacerbate humanitarian concerns, such as if they are pregnant or ill and proper treatment may not be available in the country where they are detained.

The United States and Mexico have active prison transfer programs for prisoners who are ill. Because so many prisoners are transferred between these countries every year, the dates are scheduled quarterly, a year in advance, even before specific prisoners are identified.

What Can You Do if You Want to Apply for the International Prisoner Transfer Program for Yourself or a Loved One?

If you have any questions or concerns regarding the international transfer of prisoners, it is important to consult with a criminal defense attorney. Your attorney can answer any questions you may have about your own transfer or the transfer of a loved one.

Additionally, a transfer application may be more expeditious with the help of a lawyer. Having a lawyer handle the transfer process can ensure that your rights are protected and the process proceeds as it should.