G THE B IN EN V C R H E S 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.