Steve’s Fresh Perspective

Prisoner Transfer Program

Like many of our colleagues practicing criminal defense, we have seen an increase in the number of immigrants being prosecuted in our jurisdictions.  Surprisingly, while many questions that potential clients ask are expected (how strong is the government’s case? what kind of sentence am I looking at if I get convicted? what is your fee? do you take credit cards?) some clients, I’m told, are met with blank stares when they ask their prospective attorneys about where such a sentence might be served.  Consequently, it is perhaps more important now than ever before to spread the word that a prisoner in the United States, who is a foreigner, may be transferred to his home country to serve out his sentence. 

According to the Department of Justice, Office of Enforcement Operations, website, the International Prisoner Transfer Program began in 1977 when our government negotiated the first in a series of treaties to permit the transfer of prisoners from countries in which they had been convicted of crimes to their home countries. The program is designed to relieve some of the special hardships that fall upon offenders incarcerated far from home, and to facilitate the rehabilitation of these offenders. Prisoners may be transferred to and from those countries with which the United States has a treaty. (Participating countries are listed here). While all prisoner transfer treaties are negotiated principally by the United States Department of State, the program itself is administered by the United States Department of Justice.  

Here is how the program works, again according to the DOJ Office of Enforcement Operations:

In order for a prisoner to be transferred, both the transferring country and the receiving country must agree to the transfer; the prisoner must also give his consent. Additional specific conditions of eligibility are delineated in the various treaties. Much of the practice and procedure for prisoner transfers is governed by 18 U.S.C. § 4100 et seq.  A prisoner who is interested in transferring should apply to the Warden of the facility at which he is incarcerated, with the advice and assistance, if necessary, of a consular official of his home country.

The decision to approve or deny a proposed transfer is committed to the discretion of the Department of Justice and is based upon the entire record of the offender.  The factors considered in determining the appropriateness of transfer include the seriousness of the offense and the prisoner’s role in it, the existence of outstanding fines or restitution orders, the offender’s prior criminal record (if any), the strength of the offender’s ties to each country, and the likelihood that transfer of the prisoner will, in fact, promote his or her rehabilitation. Occasionally, special humanitarian concerns — such as the terminal illness of a prisoner or a close family member — are considered.  The Department of Justice collects information about each proposed transferee from a variety of sources and deliberates carefully before deciding.  The process usually takes at least three months.

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