International prisoner transfer is sometimes confused with extradition. Although OIA handles both procedures, the procedures relate to different stages of the criminal process. Extradition involves surrendering a person to a country where he is wanted for trial, sentencing or to complete a previously imposed sentence that the person has evaded. In extradition, the person need not be a national of the country to which he is surrendered. In contrast, prisoner transfer entails transferring a prisoner who has already been convicted and sentenced back to his home country, which assumes responsibility for administering the transferred sentence. While the two procedures are different, some cases may involve the use of both. An extradited person who is convicted in the United States and who is from a country with which the United States has a prisoner transfer relationship may be eligible to apply for transfer. Under similar circumstance, a U.S. national who is extradited to be tried abroad may apply to transfer back to the United States.

Occasionally the issue has arisen as to whether the United States can promise transfer in return for an offender agreeing not to oppose an extradition request. In most situations, OIA does not favor such agreements because they deprive OIA of its discretionary authority, are frequently inconsistent with the rehabilitative goal of transfer, and the possibility exists that there could be valid reasons to deny a transfer that will not be known at the time of extradition. If a USAO believes it has compelling reasons to link a promise of transfer with an extradition request, it shall consult with and receive OIA’s approval before making a transfer representation to the offender. Just as with representations of transfer in plea agreements, only OIA has the authority to make these promises on behalf of the United States. See 9-35-018 supra.

There are two narrow and very limited situations, however, in which extradition and prisoner transfer can be linked and these involve the countries of Israel and the Netherlands. Because these two countries do not normally extradite their own nationals for trial in another country, the United States has agreed, by treaty with Israel and by an exchange of diplomatic notes with the Netherlands, to permit the transfer of extradited nationals from these countries following conviction at trial, sentencing and processing of the transfer request. When such an extradition arises, the USAO must confer with OIA’s IPTU early in the proceeding to discuss the USAO’s role and responsibilities in the transfer process.

[updated January 2020]