Going to Prison? Inmate Transfers to Other Countries

People in prison who are from outside the United States may request to be transferred to their native country to serve their prison term. 

 

The transfer from a person from a prison in the U.S. to another country, however, is only allowed when there is a treaty authorizing transfers between the sentencing and requesting country.  See U.S.C. § 4100. 

The U.S. is a party to “prisoner exchange” or “prisoner transfer” agreements that govern the transfer of people in prison from states such as California to many other nations.  For a full review of the nations involved, see www.justice.gov/criminal-oeo/list-participating--countries. 

While this may seem like a rather routine occurrence, it is not.  From 2000 to 2010, California transferred only 40 people in prison.  Nearly half of the transfers were to Canada. See U.S. Department of Justice Website at www.justice.gov/criminal-oco/international-prisoner-transfer-program. 

The Board of Parole Hearings (BPH) staff must notify each person born outside the U.S. that they may be eligible to service the prison term in their nation of citizenship. Penal Code § 2912; Penal Code § 5028(a).  If an inmate requests that their national consulate be notified of their incarceration, California prison officials must send such notification.  Penal Code § 5028(a).

The prison transfer treaties mostly require the same things and procedures for a transfer.  Generally speaking, the requirements are that:

Some treaties include additional requirements, such as that the inmate may not have become a resident of the sentencing country, must not be sentenced to death, must have a determinate (set length) sentence or a set parole date, and must not have committed an immigration, military or political offense. See 18 U.S.C. § 4100. 

The U.S. Department of Justice website has extensive information on international transfers.  See also In re Hogan (1986) 187 Cal. App. 3d 819, 232 Cal. Rptr. 90 (Canadian treaty does not apply to people serving terms of 25 years to life); Hogan v. Koenig (9th Cir., 1990) 920 F.2d 6 (California officials had authority to deny an inmate with a life sentence a transfer based on the seriousness of the crime and the length of the sentence).

The person’s sentence then follows them to the transfer nation.  However, upon return to the country of nationality, a transferred person becomes subject to the laws of the receiving country.  18 U.S.C. § 4103.  For example, under a U.S.- Mexico Treaty, the actual length of confinement may be changed in accord with the laws of the receiving country.  However, the legal sentence imposed may be contested, altered, or set aside only in the transferring country’s courts.  See U.S. – Mexico Treaty (Nov. 25, 1976, T.I.A.S. No. 8718), Article VI; 18 U.S.C. § 3244; see Pfeifer v. U.S. Bureau of Prisons (9th Cir., 1980) 615 F. 2d 873.

It should be noted that even when a person meets all the basic requirements of the transfer treaties, a transfer requires the consent of the sentencing nation, the receiving nation, and the person with the conviction.  The procedural requirements with regard to the person’s consent are set out in federal legislation. 18 U.S.C. § 4100(b) (verification of consent); 18 U.S.C. § 4107-4109 (right to counsel and due process rights).  Special procedures apply for gaining the consent of minors and people of unsound mental condition. 18 U.S.C. § 4100(b).

This article would not be possible without reference to the excellent treatise, The California Prison and Parole Law Handbook, assembled by the Prison Law Office in Folsom, California.