What is a treaty transfer case in criminal law?

What is a treaty transfer case in criminal law?

Being arrested, convicted, and imprisoned is bad enough. It’s even worse when you’re in a foreign country and have no access to friends, family, or even friendly faces who speak your language. Fortunately, you may be eligible for a transfer treaty arrangement that allows you to return to the U.S. to serve out your sentence.

History of prisoner transfer treaties

The U.S. entered into its first prison transfer treaty in 1977, when it permitted Mexican citizens in American prisons to be transferred home to serve out their sentences. Mexico reciprocated by sending incarcerated Americans to U.S. prisons. This inaugural arrangement was soon replicated in agreements with 12 more countries, including Canada, Hong Kong, France, and Turkey. In 1985 the Council of Europe Convention on the Transfer of Sentenced Persons took effect, and any country that signed it was automatically eligible to have its incarcerated citizens sent home from the U.S. to serve the remainder of their sentences (and vice-versa).

Prisoner transfer treaties explained

Under 18 U.S.C. §§ 4100-4115, American citizens convicted of a crime overseas and foreign nationals convicted of a crime in the U.S. may apply for a transfer home if there is an appropriate treaty between the U.S. and the foreign country.

The decision to make such a transfer is not automatic: it is entirely at the discretion of the countries involved, and the prisoner must also consent. Certain conditions also apply: the prisoner is not eligible until they have exhausted all appeals and their sentence is final, and they may have to pay any imposed fines first. Depending on the treaty between the U.S. and the country where you are imprisoned, you may be denied a transfer if:

  • You only have six months to a year left to serve
  • You have committed certain crimes, such as political or military subversion

How to apply for a transfer

The transfer process typically begins when an American citizen in a foreign prison contacts the nearest U.S. Embassy to request a transfer under the treaty. If the U.S. Department of Justice and the foreign government both approve the transfer, then arrangements are made to transfer the prisoner on a date that is mutually convenient for both governments. The transfer of foreign prisoners in the U.S. takes a similar approach.

Consent verification hearing

U.S. law requires the consent of all prisoners transferred into or out of the country via the treaty. If you are seeking a transfer to the U.S., then your case is heard by an American magistrate in the foreign country. You have the right to consult an attorney, but if you cannot afford one, then you may request that a U.S. public defender travel to wherever you are located to represent you. You then appear before the magistrate or hearing officer and consent to the transfer.

Returning to the U.S.

After your consent has been verified, representatives from the Federal Bureau of Prisons will arrive to escort you to the U.S., where you will be situated in a federal prison. To determine your remaining sentence, officials will determine the punishment for a comparable offense in the U.S.

If you have been convicted of a crime abroad, then a New York criminal defense attorney may be able to work with your family back home to assist you with a treaty transfer. Similarly, if you are a foreign national in a U.S. prison, an experienced attorney can assist you in going home to complete your sentence. This concession can make years of incarceration more bearable. If you or a loved one are seeking legal assistance, then contact the Law Offices of Julie Rendelman, LLC for a free consultation for you or a loved one. Ms. Rendelman is a New York criminal defense attorney with over 20 years of legal experience, including many years as a prosecutor. You may reach her office at 212-951-1232. Visit www.RendelmanLaw.com to learn more.