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The Prison Transfer Treaty Report

TO: MEMBERS OF THE INTERNATIONAL RELATIONS COMMITTEE AMERICAN CORRECTIONAL ASSOCIATION

FROM: RICHARD D. ATKINS, ESQUIRE
INTERNATIONAL LEGAL DEFENSE COUNSEL (ILDC)
PHILADELPHIA, PENNSYLVANIA

DATE: AUGUST 10, 1997

RE: REPORT ON PRISONER TRANSFER TREATIES

Until four years ago, we reported the number of arrests of U.S. citizens in various countries. Up to that time, there had been between 2600 and 3000 arrests per year. The number of such arrests dropped to 2,282 in 1995, and then went up to 2,649 during the fiscal year ending July 1, 1997. Unfortunately, U.S. State Department budgetary concerns have prohibited the publication of the yearly Report to Congress on Americans Incarcerated Abroad. That report contained a myriad of details about the types of arrests and other related information. Therefore, the 17th Annual Report (February 1994) for (the year) 1993 appears to be the last one. The Report, which is no longer in publication, was made by the State Department Bureau of Consular Affairs Overseas Citizens Service. Sending letters of complaint would perhaps convince our government officials to reinstate the publication of this important information either in written form via the Internet.

The statistics are collected, but they are not published. Of the 2,649 U.S. citizens arrested abroad, approximately 1,681 were in countries with Prisoner Transfer Treaties with the U.S. and the balance in countries without treaties.

The country with the most arrests of U.S. citizens is Mexico with 703. Thereafter, the countries in descending order are:

• 2. Germany 155
• 3. Canada 135
• 4. U.K. 122
• 5. Thailand 96
• 6. Israel 78
• 7. Australia 66
• 8. Japan 65
• 9. Ecuador 61
• 10. Panama 56
• 11. Dominican Republic 54
• 13. Philippines 53
• 14. Spain 48
• 15. Venezuela 47
• 16. Belize 45
• 17. India 41
• 18. Jamaica 39
• 19. Italy 37
• 20. Peru 34
• 21. France 34
• 22. Brazil 30

TRANSFER STATISTICS

The U.S. Justice Department’s Office of Enforcement Operations sends us the latest information concerning transfers each year. These figures include the year 1996 and the totals from 1997 up until December 31, 1996.

1996 PRISONER TRANSFERS

1. Bahamas to USA 8
   USA to Bahamas 2
2. Canada to USA 0
   USA to Canada 69
3. Denmark to USA 0
   USA to Denmark 1
4. France to USA 0
   USA to France 1
5. Germany to USA 0
   USA to Germany 1
6. Greece to USA 0
   USA to Greece 1
7. Hong Kong to USA 1
   USA to Hong Kong 0
8. Ireland to USA 0
   USA to Ireland 1
9. Italy to USA 0
   USA to Italy 1
10. Mexico to USA 85
    USA to Mexico 295
11. Netherlands to USA 0
    USA to Netherlands 7
12. Panama to USA 7
    USA to Panama 3
13. Panama to USA 7
    USA to Panama 3
14. Spain to USA 0
    USA to Spain 4
15. Sweden to USA 0
    USA to Sweden 1
16. Switzerland to USA 0
    USA to Switzerland 1
17. Trinidad/Tobago to USA 9
    USA to Trinidad/ Tobago
18. United Kingdom to USA 1
    USA to United Kingdom 3
19. Total to USA 111
    Total from USA 385

CUMULATIVE STATISTICS 1977-1996

1. 1977-1996 TOTAL TO USA 1,749
   1977-1996 TOTAL FROM USA 2,411

COMPARATIVE STATISTICS

1. 1995 – Total to USA 60
   Total from USA 355
2. 1994 – Total to USA 64
   Total from USA 282
3. 1993 – Total to USA 114
   Total from USA 279

Mexico consistently remains the country with the most transfers to and from the USA. Total transfers from 1977 through 1996 for Mexico involve 1,392 transferred from Mexico to the USA and 1,794 transferred from the USA to Mexico.

From Mexico to USA – 1,392
From USA to Mexico 1,794

OTHER DEVELOPMENTS

The country of Costa Rica is very interested in becoming involved in multi-lateral prisoner transfer treaty. They ratified the Inter-American Convention on Enforcement of Penal Sentences Abroad of the OAS back in February of 1996, but they have been frustrated since the United States has not rarified the treaty.

Therefore, the country of Costa Rica is considering acceding to the European Prisoner Transfer Treaty since the United States and Canada are already apart of that treaty. At the present time, the Committee of Legal Matters of the Congress of Costa Rica is studying the European Treaty and things look optimistic for their approving it.

THAILAND UPDATE

In mid-April of 1997, the Thai Transfer Treaty Committee issued a legal opinion which is binding as of this time. This opinion adversely affects eleven U.S. citizens and probably an equal or larger number of citizens from other countries, including Canada, who were expecting to come back to their respective country under the appropriate Thai prisoner transfer treaties.

Unfortunately, this opinion says that the Pardon last year by the King Thailand in honor of the 50th Anniversary of his coronation did not constitute a change in the sentence but in the judgment of conviction. Therefore, the affected individuals were not eligible to return to their home countries under prisoner transfer treaties. Instead, they must wait eight years under very difficult circumstances. The practical effect of this development is that many prisoners in this situation are unable to cope and have demonstrated severe psychiatric symptoms.

I am trying to meet with the representatives of the Thai Transfer Committee to present the position in favor of allowing as many transfers as possible. I have asked for letters detailing the additional trauma now faced by these individual prisoners and their families, so that this can be presented to appropriate Thai officials.

Through the ACA we were successful in coordinating work with the appropriate U.S. State and Justice Departments, and the Senate Foreign Relations Committee, in order to get the one kilo limit removed on the American side. Our work was discussed in prior reports. We helped in reversing the policy which prohibited U.S. citizens from returning under the Thai/U.S. transfer treaty. This project ob obtaining the transfer of this affected group of eleven U.S. citizens, several Canadians and others from various European countries, has just started. There will be more about this, hopefully of a positive nature, in my next report.

COUNCIL OF EUROPE UPDATE

The “Convention of the Transfer of Sentenced Persons” has been in force since 1983. States adopting the convention are: Austria, Belgium, Bulgaria, Cypress, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia (as of 9/1/97), Lithuania, Luxembourg, Malta, The Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. The treaty is also enforced in the Bahamas, Canada, Croatia, Netherlands Antilles, Trinidad and Tobago and the U.S. Liechtenstein and Moldavia have also signed the Convention. Numerous U.K. territories have also acceded to the treaty including Hong Kong. We hope that they continue to adhere to the treaty in light of Hong Kong’s transfer to China as of July 1, 1997. So far, this is the most useful popular treaty. It is certainly the one to which most countries should attempt to accede if they are interested in the practice of prisoner transfer and if they have their citizens in prison in any of the above countries.

ORGANIZATION OF AMERICAN STATES (OAS) PRISONER TRANSFER TREATY

We previously reported that the OAS voted in favor of a hemisphere-wide treaty in June, 1993. Signators to the treaty are Costa Rica (June 9, 1993), Venezuela (April 14, 1995), Canada (July 8, 1994), Panama (December 5, 1994), United States (January 10, 1995), Ecuador (March 14, 1996), and Chile (April 22, 1997). In addition, we have recently been informed that Mexico has ratified the treaty as of June 2, 1997.

This treaty, with the backing and support of the U.S. and Canada, is expected to become the most popular prisoner transfer treaty once it is ratified by the U.S. and the other OAS member states. Approximately 500 U.S. citizens will become eligible to return to the U.S. to serve out their prison sentences here, and we estimate that approximately 7,500 foreign nationals will be eligible to transfer from U.S. federal prisons to their home countries. If widely used, the treaty could improve fiscal concerns in the area of corrections, decrease an expanding prison population, and make thousands of beds available to U.S. federal defendants.

PRISONER TRANSFER TREATIES STATE ENABLING LEGISLATION

For the past dozen years, the International Relations Committee has consistently encouraged and offered assistance to various states to pass the enabling legislation which would permit foreign nationals serving state prison terms to return to their home countries under the applicable U.S. prisoner transfer treaty. Once a state has such enabling legislation, transfers are permitted between that state and each of the countries which has a transfer treaty with the United States. This includes all of the bilateral treaties which involve Mexico, Panama, Peru, Bolivia, Turkey, France and Thailand, as well as all of the countries which have acceded to the Council of Europe Treaty. Once the U.S. ratifies the OAS treaty, it will permit transfer to and from all of the countries which have similarly ratified that treaty.

In 1992, we were invited to provide state legislation information to the Association of State Correctional Administrators. Director George Camp then sent our information to each of the states. Shortly thereafter, we received several calls from officials of states which were interested in the prisoner transfer enabling legislation and we provided the requested information to them. We included sample wording so that interested states would find it easy to include the necessary wording for their legislation.

We are pleased to report that the sevens states of Alabama, Connecticut, Indiana, Kentucky, Ohio and South Dakota and Vermont have since passed this legislation.

The number of states which do not yet have prisoner transfer enabling legislation has been reduced to eight (8). Those states are: (1) Delaware; (2) Georgia; (3) Louisiana; (4) Mississippi; (5) North Carolina; (6) Pennsylvania; (7) Tennessee; (8) West Virginia. Pennsylvania remains the largest population state with a significant foreign population, and with a major overcrowding problem, which has not enacted this legislation. Ohio has very restrictive legislation and Vermont only permits transfers to Canada.

It is difficult to understand why any state would hesitate in passing such enabling legislation. It is a “no lose” situation for the states. First, even when enabling legislation is in effect, the designated state authority can still deny transfer to any individual prisoner. Second, keeping significant numbers of foreign offenders in state prisons is very expensive. The effective use of the treaty can substantially reduce such costs and the accompanying overcrowding. It is clear that the foreign offender population is more time-consuming and difficult to work with because of various cultural and social differences.

The use of a transfer by any state always produces a net reduction of prison population, since U.S. prisoners transferred back to the U.S. do not go to state prisons. Any prisoner transferring to the United States from a foreign country is incarcerated at a Federal Bureau of Prisons correctional facility.

We have been unable to locate any nongovernmental agency or group, or any governmental office which is against state enabling legislation. The ACA, the U.S. Justice Department’s Office of Enforcement Operations, and other interested governmental bodies are virtually unanimous in their praise of the valuable benefits of this type of state legislation.

It appears that the remaining eight states are affected either by inertia, unfamiliarity with the benefits of the legislation or by misunderstanding of the effect of such legislation. Possibly the states do not understand how short and simple the language of such a bill can be.

For example, the language used in California (California Code 12012.1) states: “Whenever a treaty is in force providing for the transfer of offenders between the United States and a foreign country, the governor or his designee is authorized to give the approval of the state to a transfer as provided in the treaty, upon the application of a person under the jurisdiction of the Department of Corrections, the Department of Youth Authority and the State Department of Health Services.”

Our ACA campaign began in 1984. Our goal is to have all fifty states pass appropriate legislation by the year 2000 and our committee is somewhat optimistic that it can be done.

Again, we want to thank the Office of Enforcement Operations U.S. Justice Department for their constant efforts and George and Camille Camp, Executive Directors of the Association of State Correctional Administrators, for their continuing assistance. We hope that they will, once more, send this information to the remaining eight states, particularly Pennsylvania.

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