Having a loved one in prison can be hard enough for a family. But, one thing making that process more challenging is coping with a loved one incarcerated in a foreign country. Continue reading to learn more about the International Prisoner Transfer Treaty Program. Here we discuss federal prison treaty transfers.
Whether you are a U.S. citizen and incarcerated in another country or a foreign national held in the United States, it is entirely understandable that you would want to serve your sentence in your home country — where you are closer to your family.
This program permits the United States Department of Justice and Department of State to transfer foreign prisoners to their home countries and seek the transfer of Americans detained abroad.
Table of contents
- International Prisoner Transfer Program
- How the International Prisoner Transfer Treaty Program Works
- Different Groups of Eligible Prisoners
- Evaluating Inmates for International Prisoner Transfer Treaty Requests
- International Prisoner Transfer Program Countries
- International Prisoner Treaty Transfer Procedures for Release
- Your International Prisoner Transfer Treaty Experts
International Prisoner Transfer Program
In 1977, the International Prisoner Transfer Program began with Congress passing legislation. The federal government started negotiating treaties with other countries allowing prisoners arrested in foreign countries to return to their home countries to serve their sentences.
The goal of this program was to allow the United States to transfer prisoners (in either state or federal prison) back to their home countries and bring home U.S. citizens convicted abroad to serve their sentences back in the United States. The United States has transfer treaties with 83 countries.
How the International Prisoner Transfer Treaty Program Works
Navigating the International Treaty Transfer Program is complicated, as with all federal matters. This is particularly the case for those wanting to serve the rest of their sentence in their home country.
Luckily, there are resources you can use — such as federal prison consulting services — to help you better understand the process.
Additionally, the Federal Bureau of Prisons provides a general outline of how the program works to help you better understand what it can and cannot do.
Many criteria mark whether or not an inmate is eligible for a treaty transfer. Some requirements include:
- The inmate is a citizen of a foreign country that has a treaty relationship with the United States.
- The inmate is a citizen of the United States and is convicted in a foreign country with a treaty relationship with the United States.
- The inmate has not committed a military offense.
- The inmate is not sentenced to the death penalty.
- The inmate has not been convicted of a political offense.
- The inmate has at least six months remaining in their sentence when the transfer is requested.
- If the inmate is Mexican, they must not be serving a sentence imposed of life.
- If the inmate is Mexican, they must not have a conviction for an immigration law violation unless under specific circumstances.
The international prisoner transfer treaty approval process is relatively straightforward. After making the request, if the inmate satisfies the criteria for the transfer, they are scheduled for a verification of consent hearing with a magistrate judge. The judge and the inmate must either agree or disagree with the transfer at that time. If the inmate consents, the foreign country is notified, and the transfer to that country is scheduled.
The inmate cannot transfer unless the U.S. and foreign countries approve the request. If a request is denied, the inmate will be able to re-apply for a transfer two years after the denial took place.
This is, however, only if the denial was on the part of the United States. If the inmate’s home country were the one to deny the request, the inmate would need to discuss this with their consulate if they are dissatisfied with the decision.
Different Groups of Eligible Prisoners
Three different groups of prisoners are eligible for the International Treaty Transfer Program, including:
- Foreign nationals in U.S. Federal prisons
- Foreign nationals in U.S. state prisons
- Americans in foreign prisons
It is important to note that transfer eligibility depends on whether or not there is a treaty relationship between the United States and the foreign country. In other words, if there is no treaty between the two countries, the transfer cannot occur.
Foreign Nationals in Federal Prisons
The first group of eligible prisoners for treaty transfers is foreign nationals who have been arrested and incarcerated in United States federal prisons. These individuals are eligible to apply for federal prison treaty transfers. These sentences are initially served in the United States.
If they meet the criteria needed for transfer, their home countries are notified, and if they support the transfer (with the United States government agreeing), the approval process begins. If successful federal prison treaty transfers allow these inmates to transfer to their home country.
Foreign Nationals in State Prisons
The second group of prisoners eligible for transfer is foreign nationals incarcerated in U.S. state prisons. These individuals can apply for a transfer if they meet the authorization criteria.
If both the United States and that individual’s home country support the transfer, the approval process begins, and the transfer is scheduled.
Americans in Foreign Prisons
The final group of eligible prisoners to apply for treaty transfers is American citizens incarcerated in foreign prisons. If the prison they are committed to is in a country with a treaty relationship with the United States, the individual can apply for a transfer back to the United States.
If both the incarcerating country and the United States approve of the transfer, the individual can proceed with the consent verification hearing, and the approval process begins.
Evaluating Inmates for International Prisoner Transfer Treaty Requests
Not all inmates are eligible for a treaty transfer. This only applies to inmates whose home countries have a transfer treaty agreement with the United States. Foreign nationals and U.S. citizens in these circumstances can not apply for transfer. Additionally, inmates held on political or military charges are not eligible for treaty transfers.
Navigating the criteria and requirements can be quite challenging. Seek out a federal criminal defense attorney to help ensure you understand the process and the requirements.
Statutory and Treaty Transfer Requirements
The basic requirements for transfer eligibility include:
- The prisoner must be a citizen of the country for which they are requesting the transfer.
- There must be a transfer treaty relationship between the prisoner’s home country (or their incarceration country) and the United States.
- The prisoner must be convicted and sentenced.
- The prisoner’s sentence must be final. Appeals and other attacks against the conviction or sentence cannot remain pending.
- The prisoner’s offense must also be a crime in the receiving country. This is called dual criminality.
- Unless under particular circumstances, the prisoner must have at least six months remaining on their sentence when they make the transfer request.
- The United States government, the foreign country involved, and the prisoner must all consent to the transfer.
Remember that these are simply the most basic requirements, and certain treaties may have other stipulations in addition to those mentioned above.
Processing Federal Inmate Requests
Once a transfer request is initiated, case processing commences. Three U.S. government officials with the Office of International Affairs (OIA) have the authority to make the final transfer determination:
- Deputy Directors
- Associate Directors
If the OIA approves the request, then the prisoner’s home country is notified, and they determine whether or not they will approve the transfer.
If the home country approves the request, the international prisoner transfer treaty request proceeds through the rest of the approval process. The final steps are the transfer being scheduled and fulfilled.
Processing State Inmate Requests
The process for processing state inmate requests for treaty transfer is similar to federal inmate requests.
First, the inmate or their counsel initiates the transfer request. Then, the Office of International Affairs processes the request. If the OIA approves the request, the receiving country is notified, and it can approve or deny the request.
If both countries approve the request, the consent verification hearing occurs, and the transfer is scheduled to the prisoner’s home country.
International Prisoner Transfer Program Countries
Eighty-three countries currently have transfer treaties in effect with the United States. For a complete list of these countries, you can look at the list of participating countries/governments on the United States Department of Justice website.
In addition to these listed 83 countries, the United States has bilateral treaties with 11 governments and is a part of two multilateral conventions. The 11 governments with bilateral treaties with the United States are:
- Marshall Islands
- Republic of Palau
The two multilateral conventions that the United States is a part of are:
One, Council of Europe (COE) Convention on the Transfer of Sentenced Persons, governing the following countries:
- United States
Two, Inter-American Convention on Serving Criminal Sentences Abroad govern these countries:
- United States
International Prisoner Treaty Transfer Procedures for Release
Keeping up with the various procedures can be challenging in a process as complicated as an international prisoner transfer. Reading documents full of requirements and procedures can be overwhelming, but when you boil it down, the process of releasing a prisoner to their home country is not too complicated.
When it comes to federal prison treaty transfers, the process begins with the application for a transfer. Once requested, the application is reviewed and approved by both the United States and the prisoner’s home country (or their foreign incarceration country if they are a U.S. citizen). If the request is approved, the inmate’s transfer to a departure institution is arranged, and the consent verification hearing occurs.
After the hearing — if the inmate consents to the transfer — the inmate is transferred to the departure institution and is retrieved by their home country.
The general process for transferring a state prisoner back to their home country is similar to the process with federal prisoners. The primary difference is that state prisoners may be transferred to the Federal Bureau of Prisons to perform the transfer. In other words, once the prisoner and both countries have consented to the transfer, the federal prison system will assume custody of the prisoner until the transfer is complete.
Other than this additional custody transfer, the release process to the prisoner’s home country is the same as a federal prisoner treaty transfer.
Americans Incarcerated Abroad
International treaty transfers also apply to American citizens incarcerated in foreign countries. If the eligible prisoner is an American citizen held in a foreign country with a treaty agreement with the United States, they can apply for transfer to the United States for the remainder of their sentence.
The same criteria apply to these prisoners. Both the United States and the foreign country holding the prisoner must approve of the transfer before the consent verification hearing takes place. At this point, the transfer can be processed.
Your International Prisoner Transfer Treaty Experts
A lot goes into determining the eligibility for an international prisoner transfer. It can be challenging to navigate this alone — especially if you are incarcerated in a foreign country. This is why it is helpful for individuals seeking an international transfer program approval to consult with experienced counsel.
Our team of federal prison consultants and partner federal criminal defense attorneys is knowledgeable about the international transfer program. We will help you navigate the requirements and procedures, helping you determine if you are eligible for a transfer and how to best go about the international prisoner transfer treaty process.
Published Aug 13, 2022 by Christopher Zoukis, JD, MBA | Last Updated by Christopher Zoukis, JD, MBA on Aug 13, 2022 at 7:51 am