JM 9-35.020
In September 2018, AAG Benczkowski signed a memo to all USAOs and DOJ Litigating Components discussing the International Prisoner Transfer Program and the role of the Department prosecutors in the program. This letter which sets forth additional guidance and directives to federal prosecutors is available from the International Prisoner Transfer Unit.
September 4, 2018
MEMORANDUM
TO: ALL UNITED STATES ATTORNEYS HEADS OF LITIGATING COMPONENTS
FROM: Brian A. Benczkowski, Assistant Attorney General
SUBJECT: International Prisoner Transfer Program
This memorandum is intended to ensure that all United States Attorneys' Offices (USAOs) and Department litigating components are knowledgeable about the International Prisoner Transfer Program and its significant role in federal law enforcement and international affairs. The Criminal Division appreciates the critical role your offices play in implementing the program, and seeks your continued participation and cooperation. Please distribute this memorandum to all of the Assistant United States Attorneys (AUSAs) and trial attorneys in your components. AUSAs and trial attorneys should note that effective September 2, 2018, the transfer program, which was previously part of the Office of Enforcement Operations (OEO), has been moved to the Office of International Affairs (OIA) in the Criminal Division.
In 1977, Congress enacted legislation authorizing the International Prisoner Transfer Program ('transfer program'). See 18 U.S.C. §§ 4100-4115. This legislation, together with subsequent treaties to which the United States is a party, permit the transfer of foreign prisoners from the United States back to their home countries to serve the time remaining on their sentences. The receiving country assumes responsibility for administering the transferred sentence. Americans convicted abroad are also eligible to participate in the transfer program and to have the United States administer the enforcement of their foreign sentences. Since negotiating its first transfer treaty with Mexico in 1977, the United States has established transfer treaty relationships with 81 countries, pursuant to 12 bilateral treaties and two multilateral conventions. In addition, all 50 states, Puerto Rico, Guam and the Northern Mariana Islands have enacted legislation permitting the transfer of state and territorial prisoners under the transfer program.
Congress vested the authority to administer the transfer program in the Attorney General. The Attorney General delegated this authority to the Assistant Attorney General (AAG) of the Criminal Division and the AAG in tum, re-delegated this authority to the Director, Deputy Directors and Associate Director of the International Prisoner Transfer Unit (IPTU) within OIA.
The IPTU is responsible for the day-to-day administration of the transfer program. When the transfer program began, more Americans sought transfer than foreign nationals but, with the abolishment of parole and the advent of the federal Sentencing Guidelines, foreign national applicants now constitute a majority of the total transfer applicant pool. Although the statistics vary by year, IPTU typically processes between 1200 to 1500 transfer applications each year. Most of these applications have been submitted by foreign nationals in federal prisons. Of these cases, more than 60 percent are from Mexican nationals.
Although 20 percent of the federal prison population is comprised of foreign nationals, less than 4 percent of them apply for transfer. Indeed, the majority of these prisoners, for various reasons, are simply not interested in being transferred or they are from countries which do not have transfer treaty relationships with the United States. Of the small percentage who apply for transfer, in recent years the United States has approved an average of approximately 36-41 percent for transfer. Unfortunately, a significant number of the foreign national applicants approved by the United States never transfer because the prisoner's home country either denies the transfer or because the transfer is impractical because too little time remains on the sentence. During the 2000-2017 period, the annual number of transfers ranged from a low of 101 to a high of 503.
A prisoner transfer cannot occur unless the treaty and statutory conditions have been satisfied. The initial statutory requirement is that a transfer treaty must be in effect between the United States and the prisoner's home country. 18 U.S.C. §4100(a). Another essential requirement is that the sentencing country, the receiving country, and the prisoner must all consent to the transfer. Transfer is voluntary; a prisoner cannot be compelled to transfer. Additional requirements common to all treaties are: the prisoner must be a national of the receiving country; the sentence must be final, with no pending appeals or collateral attacks on the conviction or sentence; dual criminality must exist; and there must be a minimum amount of time (usually 6 months) remaining on the sentence at the time of application . Some treaties provide additional requirements. For example, the Mexican treaty does not permit the transfer of prisoners who are serving sentences for immigration offenses or who have become domiciliaries of the sentencing country.
Federal prisoners may apply to transfer once they have been sentenced and arrive at their designated prison. A prisoner's country may also make a request for the transfer. Once Bureau of Prisons (BOP) receives the transfer request, prison staff will prepare an application package, which, after Central Office review, is forwarded to the IPTU for consideration.
The IPTU collects additional pertinent information from various sources including the prosecutor, the responsible law enforcement agency, and Immigration and Customs Enforcement. It evaluates this information, together with the BOP application package, and prepares a memorandum making a recommendation to the Deputy Associate Director of the IPTU who makes the final IPTU recommendation. Thereafter, the OIA Director, a Deputy Director or Associate Director of the IPTU will make the final transfer decision. This decision is guided by the statutory and treaty requirements as well as DOJ guidelines that assist the review and ensure decisional consistency. Each case is evaluated on its particular facts and the decision whether to approve the transfer must be balanced with the other interests presented by the case.
There are five areas where a potential exists for a federal prosecutor to be involved in the transfer program. The first area is when the prosecutor is seeking the extradition to the United States of a foreign national and the country or foreign defendant requests a promise of prisoner transfer in exchange for agreeing to extradition. Although the United States has agreements with the Netherlands and Israel to guarantee the transfer of its citizens extradited from those countries, any promises of transfer for all other countries rest with OIA. Consequently, the USAO will need to consult with OIA when these issues arise. See USAM at 9-35.019.
The second area of involvement is in the negotiation of the plea agreement when the offender may ask the prosecutor to include a representation that he or she will support or not oppose a subsequent request for transfer. Any prosecutor presented with such a request should carefully consult the requirements and guidance provided in Part 9-35.018 of the USAM and if necessary consult with attorneys in the IPTU.
Next, federal prosecutors are involved in responding to inquiries from the IPTU about the prosecutor's views concerning the transfer request. Upon receiving the case for review, the IPTU analyst emails an inquiry to the prosecutor seeking information including the prosecutor's views as to whether a transfer should occur and whether there are any pending appeals or collateral attacks. This is perhaps the most important area in which the prosecutor participates in the transfer program. Although prosecutorial input may not always be determinative, it is a critical part of the information that the IPTU considers. It is a meaningful opportunity for the prosecutor to ale1i the IPTU to any factors that he or she believes weigh against the prisoner's transfer. The IPTU requests that this information be provided within 14 calendar days from the date the email was sent; unless an extension is requested, failure to respond is interpreted as the prosecutor not having an objection to the transfer.
The IPTU may also ask the USAO in the district where a federal or state prisoner is incarcerated to assist in procuring a writ of habeas corpus or order to produce the prisoner at a consent verification hearing. The statutorily mandated consent hearing is held before a U.S. federal magistrate and ensures that the prisoner understands the impact of the transfer and freely consents to the transfer.
Finally, in those situations where prisoner transfer is an issue that arises in the litigation of the case or that is included as an issue on appeal, federal prosecutors should consult with the IPTU. IPTU attorneys can assist by explaining the program and providing resources and arguments to address the issues that have been raised.
Many prosecutors provide case-specific information in response to the IPTU's requests for their views on a prospective transfer, including information that the prisoner is a subject of another criminal investigation, is needed to testify, or has threatened the safety of a witness. We review and take seriously the legitimate law enforcement concerns raised by U.S. Attorney's offices, and in most instances well-articulated and supported concerns will cause IPTU to deny the transfer request.
More general concerns or opposition to the transfer program will often not cause IPTU to deny a transfer. For example, these issues may include the concern that the sentence served in the home country will be less than what would be served in the United States; a distrust of the integrity of the prison system in the foreign country; a general concern that the prisoner will return to the United States and commit a new crime; or a strong, personal belief that the prisoner should serve his sentence in the United States. Though understandable, non-case specific concerns such as these do not assist in the assessment of whether transfer is appropriate in a specific case.
Moreover, some of these general concerns about the transfer program are attributable to misunderstandings and misconceptions regarding the operation of the program. First, some prosecutors mistakenly believe that the prisoner will serve less time in custody or be released immediately if transferred to his home country. Receiving countries are required by the terms of the governing treaty to apply their own laws and procedures with regard to the execution of the sentence, including the availability of parole, good conduct time, and labor credits. Sometimes, especially with regard to Canada and European countries, this will result in the foreign national serving less time in prison than if he had remained in the United States. However, with respect to other countries, such as Mexico, this is often not the case. Most transferred Mexican nationals serve sentences that approximate the sentences they would have served had they remained in the United States. Indeed, most prisoners serve slightly more time in Mexico than they would have served in the United States because Mexico, unlike the United States, does not award the equivalent of good time credits to large categories of offenders, including drug traffickers. Similarly, Ecuador has informed the United States that they will enforce the U.S.-imposed term of all transferred sentences and, to date, the sentence administration information provided confirms this representation.
Even when a transferred prisoner may serve less time in prison, this result, standing alone, is not a sufficient reason to deny the transfer request. The United States and its treaty partners recognized at the time that they entered into these treaties that the administration of the sentence by the receiving country could result in the prisoner serving less prison time than if he had remained in the sentencing country. However, the United States and its treaty partners accepted this result in exchange for the ability to have their nationals returned. Experience has confirmed that many of the returning Americans serve less time in the United States than they would have served had they remained in the foreign country in which they were convicted. Because the United States is willing to accept this benefit for its citizens, it cannot equitably object to a transfer simply because a foreign national might experience a similar benefit.
Second, Department prosecutors occasionally express concern about the integrity of the foreign prison system. Although some problems may exist in some criminal justice system, there appears to be little information to substantiate the view that transferred prisoners are able to buy or negotiate a lesser sentence abroad.
Third, prosecutors occasionally express concern that transferred prisoners will return to the United States and commit new crimes. Although there is no guarantee against recidivism for any category of offender, experience suggests that the potential for a foreign national's return to the United States following completion of his transferred sentence can be greatly minimized by ensuring that removal orders are obtained from U.S. immigration authorities prior to transfer, and by limiting approvals to candidates with strong family ties to their home countries who have minimal or no prior criminal record. The IPTU provides quarterly inf01mation to ICE identifying the prisoners the United States has approved for transfer so that ICE can take steps to secure removal orders for these prisoners. Moreover, as a general rule, experience shows that offenders who are transferred to distant locales, especially to countries in Europe or Asia, are unlikely to reappear in the United States after they are released from confinement abroad.
The transfer of offenders serves an important law enforcement purpose. Unless transferred, foreign nationals who are convicted of a crime in the United States will be deported following the completion of their sentence. A deported offender will be released into the general population in the home country, usually without that country receiving any information about the prisoner's criminal conduct and without the power to monitor or control his activities in any way. By contrast, a transferred prisoner is placed within the custody and control of the home country, which also receives the details and official conclusions regarding the criminal conduct of the transferred prisoner. The transfer also ensures that the prisoner will have a criminal record in his home country.
It is also important to recognize that the treaty obligations of the United States and Department policy require that all requests for transfer receive fair consideration. The treaties governing the transfer of prisoners reflect a foreign policy determination by the United States that prisoner transfer should be available equally to foreign nationals incarcerated here and American nationals incarcerated abroad. Moreover, prisoner transfer serves to reduce prison overcrowding within U.S. facilities, to rehabilitate offenders, and to promote harmonious relations with countries whose cooperation may be necessary for other law enforcement purposes. Further, the United States' participation in prisoner transfer treaties with 81 countries allows the United States to bring back Americans who have been convicted abroad, some of whom are incarcerated under extremely difficult circumstances. Thus, a general policy of recommendation against transfer would be contrary to the purpose of the transfer treaties and inconsistent with important law enforcement and foreign policy interests of the United States.
Finally, the IPTU needs your assistance in one additional area. To ensure that transfer requests are processed in a timely manner, it is essential that the USAOs respond to IPTU inquiries within 14 business of receiving the IPTU request. After the expiration of this 14-day period, if the IPTU has not heard from your office with a response or an extension request, the IPTU attorney will assume that the prisoner has no pending appeals or collateral attacks and that your office takes no position on the transfer request. This policy is necessary to avoid unnecessary delays in processing transfer applications.
For the International Prisoner Transfer Program to achieve its objectives and to function efficiently, it must have the cooperation and active participation of federal prosecutors. The IPTU looks forward to working cooperatively with your offices in the administration of the program and remains available to respond to any questions or concerns that you may have.
Inquiries about the program may be directed to Amy Chang Lee, Associate Director of the IPTU or to the IPTU attorney seeking your views on a transfer request. General information about the transfer program can be found on the IPTU website at: https://www.justice.gov/criminal/criminal-oia/iptu. Contact information for the IPTU is:
International Prisoner Transfer Program
Office of International Affairs/Criminal Division United States Department of Justice
1301 New York Avenue, NW, 101 h Floor Washington, DC 20530
Telephone: 202-514-3173; Fax: 202-514-9003
[updated January 2020]