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A N 8 8 D 8 B 1 AR SINCE www. NYLJ.com Volume 246—NO. 66 TUesday, October 4, 2011 Outside Counsel Expert Analysis International Prison Transfer Program

n our last column, we discussed benefit exists to the transfer of foreign the basics of extradition law and its nationals out of U.S. prisons. Currently, increasing relevance in white-collar almost 59,000 foreign nationals are cases.1 A related topic is the transfer imprisoned in the United States, which of foreign citizens convicted in the accounts for approximately 27 percent IUnited States to their home countries of the federal prison population.6 On to serve their sentence, as in the case By And average, it costs more than $25,000 of the “NatWest Three”—three British Robert G. Robert J. annually to incarcerate one prisoner.7 businessmen who pled guilty in 2007 Morvillo Anello to Enron-related fraud charges in the Governing Treaties U.S. District Court in Houston and numbers, fewer than half of the transfers served only six months in the United sought by foreign nationals serving The United States is party to 12 States before being transferred to the criminal sentences in the United bilateral and two multilateral treaties United Kingdom for the balance of their States are approved. The former chief with 74 other countries that provide 37-month sentences.2 of the International Prison Transfer for the execution of a foreign national’s Unit (IPTU), a unit within the Justice penal sentence in the defendant’s home Treaties facilitating such transfers 8 initially were formalized by the federal Department that administers such country. Under these treaties, a number government in the 1960s and 70s to allow transfer requests, has opined that the of requirements must be satisfied before for the return of U.S. citizens convicted high denial rate frustrates the United a transfer can take place. For instance, abroad to serve their sentence in the States’ treaty partners and recently led the Council of Europe Convention on United States in response to concerns Congress to pass legislation requiring the Transfer of Sentenced Persons regarding their harsh treatment in the IPTU to provide an annual report permits prisoners to be transferred foreign prisons. Today, these treaties are on the effectiveness of the treaties in when: 1) the sentenced person is a employed more frequently to transfer “bringing about the return of deportable citizen of the “administering State” (the foreign nationals out of the United States incarcerated aliens to the country of State to which he or she requests to be in a wide variety of cases, including which they are nationals.”4 transferred); 2) the judgment is final; white-collar cases with cross-border Real governmental benefits for both 3) the sentenced person consents to implications. the United States and home countries the transfer; 4) six months or more of Statistics reveal that for the period attend to the transfer of non-citizens to the sentence remain to be served; 5) 2008 to 2010, 595 foreign nationals their home country to serve a sentence “the acts or omissions on account of were transferred from the United of imprisonment. First, prison transfer which the sentence has been imposed States to serve sentences in their often is preferable to traditional removal constitute a criminal offense according home countries, as compared to the or deportation proceedings, which occur to the law of the administering State”; after a foreign national has completed and 6) the sentencing and administering return of 163 Americans from prisons 9 abroad.3 Despite the disproportionate his sentence and do not provide the States agree to transfer. home country with an opportunity to The request may be initiated by either “take precautionary steps to ensure the the administering or the sentencing safety of its populace, help the former state.10 The Inter-American Convention Robert G. Morvillo and Robert J. Anello are partners prisoner to receive necessary medical or on Serving Criminal Sentences Abroad at Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer. contains the same requirements with Gretchan R. Ohlig, an attorney, assisted in the preparation rehabilitative assistance, or reintegration of this article. into its society.”5 Second, an economic the additional requirement that “[t]he TUesday, October 4, 2011 sentence to be served must not be the is qualified for transfer, the warden and, as a general rule, that factor will death penalty.”11 will compile a “classification packet” be considered.24 (which includes a presentence report, The OEO also considers law Administration of Transfers judgment, fingerprints, photographs, enforcement concerns that would arise 19 The administration of inmate and a case summary) and forward the in any typical sentencing and parole transfers is carried out in the United application to the Assistant Director decision. These include the seriousness States pursuant to the IPTU created by of the BOP’s Correctional Programs of the offense, the impact transfer will the federal government in the mid-70s Division, who reviews and forwards the have on “public sensibilities,” public after the United States entered into the materials to the OEO’s International policy, the likelihood of reintegration 20 bilateral Treaty on the Execution of Penal Prison Transfer Unit. and renewed criminal activity in the Sentences with Mexico. The IPTU is a The OEO has full discretion in deciding receiving country, possible sentencing part of the Justice Department’s Office of whether to grant a transfer request, disparities, and the law enforcement Enforcement Operations (OEO), which and applications can be denied for any and prosecutorial needs in the sending 21 25 acts pursuant to powers delegated by the reason. Nevertheless, the OEO has country. Finally, the OEO Guidelines Attorney General12 under the Transfer of issued non-binding internal guidelines state that it only makes sense to allow Offenders to and from Foreign Countries for evaluating prisoner applications foreign nationals to serve out their Act (the “Transfer Act”).13 for transfer. The guidelines focus on sentence in their home country if The Transfer Act and its regulations three main issues: 1) whether transfer they will remain there after release. specifically confer upon the Attorney will facilitate the defendant’s social Accordingly, the OEO considers General or his designee “the authority rehabilitation; 2) the law enforcement the defendant’s existing ties to the to find appropriate or inappropriate the concerns of the sending and receiving United States, whether he or she transfer of offenders to or from a foreign countries; and 3) whether the inmate, has previously received a prisoner country under a treaty.”14 Transfers may if transferred, is likely to return to the transfer, and previous deportations 26 only be made to and from the United United States. and illegal reentries. States where: 1) a treaty governing The Chief of the IPTP has stated such transfers exists; 2) the offender that “[o]ne of the major goals of the has consented; 3) the conviction and transfer program is to return the Statistics reveal that for sentence are final with no appeal or prisoner to his home environment collateral attack pending; and 4) the where, hopefully, there is familial the period 2008 to 2010, requirement of dual criminality is and peer support, for in this type of 595 foreign nationals satisfied.15 Dual criminality requires that environment, the prisoner has the best the offense for which the defendant has chance of successful rehabilitation 22 were transferred from the been sentenced is an offense in both the and reintegration into society.” transferring and receiving countries.16 In the evaluation of whether social United States to serve rehabilitation will be furthered by an sentences in their home Transfer Out of United States inmate’s transfer, factors considered include the defendant’s acceptance countries. Pursuant to Transfer Act regulations, of responsibility, criminal history the Bureau of Prisons (BOP) is tasked (distinguishing between the “low-level, with informing all inmates who are minor, first-time or infrequent offender” In evaluating these factors, the citizens or nationals of a foreign country and a “career criminal”), seriousness OEO case analyst assigned to the of their ability to request a transfer of the offense, criminal and family ties case contacts all interested parties, to their country of citizenship upon to the sending and receiving countries, including the prosecuting U.S. Attorney’s arrival at their designated facility.17 humanitarian concerns, and the length Office and any other involved federal The period between sentencing and of time the defendant has been in the agencies such as the Federal Bureau of arrival at said facility can take several United States.23 Investigation, Internal Revenue Service, months and is considered “dead time” The length of time the inmate has and Office of Homeland Security.27 for purposes of a prisoner transfer resided in the United States is an Prosecutors are asked to provide application.18 important factor in prison transfer facts and recommendations to assist Inmates interested in a transfer are decisions. Experts note that “[d] the OEO in making a determination required to submit a Transfer Inquiry omiciliary status is conclusively whether to approve the transfer request. Form to the warden at the institution presumed where the inmate has made Practitioners have found that “[a] where he or she is confined. Upon the effort to obtain lawful permanent lthough the views and recommendations receipt and verification that the inmate resident status in the United States” of the U.S. Attorney’s Office are TUesday, October 4, 2011 accorded greater weight than those of and the foreign government arrange 9. July 1, 1985, 35 U.S.T. 2867, art. 3.1(a)-(f). law enforcement agencies, neither are for the inmate’s physical transfer. 10. Id. art. 2.3. 11. Jan. 10, 1995, S. Treaty Doc. No. 104-35, art. 3. determinative of the final decision on After the inmate’s arrival in the United 12. The Attorney General has delegated his authority any particular transfer request.”28 States, a probation officer prepares under the Transfer Act to the Assistant Attorney General If the OEO approves the inmate’s a post-sentence report and a special for the Criminal Division, who in turn is authorized to further delegate this authority to the Deputy Attorney request, the foreign national’s home transferee hearing is held before General and various officials within the OEO. 18 C.F.R. country is asked whether it will accept the U.S. Parole Commission for the §0.64-2. the prisoner and, if so, how it will enforce purpose of determining a release 13. 18 U.S.C. §4100, et. seq. 29 33 14. 18 C.F.R. §0.64-2. the sentence. Once the transfer is date. Although the release date may 15. 18 U.S.C. §4100. approved by the foreign government, sometimes reduce the duration of the 16. Id. §4101(a). the inmate’s consent must be verified. inmate’s sentence, it can never be 17. 18 C.F.R. §527.43. Foreign nationals convicted of Such verification comes by way of a greater than the foreign sentence.34 state crimes also can seek a transfer through the IPTP. The United States typically approves such transfer hearing before a U.S. Magistrate Judge Conclusion requests in deference to the state’s judgment, unless a or District Court judge who is asked compelling federal interest to deny the request exists. to “document the inmate’s voluntary The growth of international law Office of Enforcement Operations, International Prison Transfer Program, “Guidelines for Evaluating Prison consent for transfer.” The inmate is enforcement and increased extradition Transfer Applications” at ¶3.c.1. (OEO Guidelines) entitled to counsel during the hearing.30 for business crimes dictate that (available at http://www.justice.gov/criminal/oeo/ Once consent is verified, the Bureau of white-collar practitioners familiarize iptu/guidelines.html) (last viewed Sept. 14, 2011). 18. Royce, “International Prison Transfer” at 188. Prisons is authorized to arrange for themselves with all aspects of 19. Federal Bureau of Prisons, Program Statement the physical transfer of the inmate to representing foreign clients convicted P5140.40, “Transfer of Offenders to or From Foreign the foreign country. Because of the in the United States or American clients Countries,” at 7 (Aug. 4, 2011). numerous bureaucracies involved and convicted in foreign jurisdictions. The 20. Id. §527.44 (a)-(c). 21. See Yosef v. Killian, 2009 WL 2244643, *5 the complex manner in which transfer International Prison Transfer Program (S.D.N.Y. Jun. 25, 2009). requests are prepared, reviewed is an integral part of this process. Given 22. Wolff, “The International Transfer Program” at and approved, foreign nationals may the cost savings to the United States p. 26. 23. OEO Guidelines at ¶1. experience significant delays at various and the attitude of Congress, it will 24. Royce, “International Prison Transfer” at 190. points in the process.31 be surprising if this mechanism is not 25. OEO Guidelines at ¶2. utilized more frequently in the future. 26. OEO Guidelines at ¶3. Transfer Into United States 27. Alan Ellis, “An Introduction to International Prison Transfers: Going Home,” The NACDL Champion The OEO also administers the Transfer ••••••••••••••••••••••••••••• Magazine (July 1999). Program for Americans convicted abroad 28. Id. The U.S. Attorney’s Manual directs that a “United States Attorney’s Office may not…promise seeking to serve their sentence on 1. Robert G. Morvillo and Robert J. Anello, “Increased that a transfer will in fact be granted” and further Extradition for Business Crime,” New York Law Journal American soil. As in the case of a foreign cautions that any position taken by the U.S. Attorney’s (Aug. 2, 2011). Office on a transfer request is not binding on any other national seeking transfer outside the 2. Laurel Brubaker Calkins and Thom Weidlich, “Ex- government agency. USAM §9-35.100 (Role of the U.S. United States, U.S. citizens imprisoned NatWest Banker Transferred to U.K. to Finish Prison Attorney’s Offices—Inclusions of Promises Regarding Sentence,” Bloomberg.com (Nov. 25, 2008) (further in another country cannot initiate a Transfers in Plea Agreements). noting that the defendants’ guilty pleas hinged, in part, 29. Royce, “International Prison Transfer” at 189. transfer application until their criminal on the federal government’s commitment to “support” An inmate whose request is denied by the OEO is not case is final and all appeals have been their prisoner transfer applications). permitted to reapply for two years from the date of 3. Office of Enforcement Operations—Criminal exhausted in the foreign country. denial. BOP Program Statement P5140.40 at 8. Division, U.S. Department of Justice, Prison Transfer Depending on the applicable treaty, 30. 28 C.F.R. §527.44(g). Statistics (available at http://www.justice.gov/ 31. Royce, “International Prison Transfer” at 188-89 either the prisoner or the American criminal/oeo/docs/Statistics.pdf) (last viewed Sept. (detailing ways in which the process may be delayed). Embassy should apply to the foreign 15, 2011). 32. U.S. Department of Justice, Criminal Division, 4. Sylvia Royce, “International Prison Transfer,” government for transfer. The transfer Office of Enforcement Operations, International Federal Sentencing Reporter, Vol. 21, No. 3, at 186, 188 Prison Transfer Unit, “Prison Transfer Background classification package documentation (February 2009). Information for Americans Incarcerated Abroad” is forwarded to the Department of 5. Paula A. Wolff, “The International Prison Transfer (available at http://www.justice.gov/criminal/oeo/ Program,” U.S. Attorneys’ Bulletin, Vol. 55, No. 1, p. 23, Justice as well, where the OEO reviews docs/americans-arrested.pdf) (last viewed on Sept. 15, 24 (January 2007). 2011). the application and decides whether to 6. Federal Bureau of Prisons, “Quick Facts about the 32 33. 18 U.S.C. §4106 (for offenses committed before approve the request. Bureau of Prisons—Inmate Breakdown,” (available at Nov. 1, 1987); §4106A (for offenses committed on or http://www.bop.gov/news/quick.jsp#2) (last viewed If both the OEO and the foreign after Nov. 1, 1987). on Sept. 15, 2011). government approve the request, a 34. Id. §4106A(b)(1)(C). 7. Federal Register, “Annual Determination of consent verification hearing is held Average Cost of Incarceration—A Notice by the Prisons before a U.S. judge where the prisoner Bureau” Vol. 76, No. 23 (Feb. 3, 2011). is represented by a federal public 8. U.S. Department of State, “Prison Transfer Treaties” (available at http://www.travel.state.gov/ Reprinted with permission from the October 4, 2011 edition of the NEW YORK LAW defender. Once the prisoner’s desire JOURNAL © 2011 ALM Media Properties, LLC. All rights reserved. Further duplication law/legal/treaty/treaty_1989.html#) (last viewed on without permission is prohibited. For information, contact 877-257-3382 or reprints@alm. to be transferred is verified, the BOP Sept. 15, 2011). com. # 070-01-11-01