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International Prisoner Transfer Program Brings U.S. Citizens Home
Magistrate Judge Justo Arenas (D. P.R.) sat across the room from the two coughing and wheezing prisoners. He had flown into Lima, Peru, and was now staying in a hotel attacked by guerrillas weeks earlier. It was 1995 and Arenas was there to verify that the prisoners—both U.S. citizens and ill with untreated tuberculosis—wished to be transferred to U.S. prisons to serve the rest of their sentences. It was Arenas’ first prisoner transfer hearing. Over the years, he would go back five more times to Peru, as well as to Venezuela and Bolivia, among other countries, for verification proceedings.
Over 70 counties are parties to prisoner transfer treaties with the United States. Chapter 306 of 18 U.S.C. sets forth procedures to implement treaties providing for the transfer of offenders to the country of which he or she is a citizen or national in order to serve the remainder of his or her sentence.
The International Prisoner Transfer Program began in 1977, the same year the Federal Magistrate Act was amended to allow U.S. magistrate judges to perform the verification function required under U.S. law for these transfers. A magistrate judge must personally inform the offender of the conditions of the transfer and determine that the offender understands and agrees to them. The magistrate judge must then verify that the offender voluntarily consents to the transfer with full knowledge of the consequences. The offense for which the prisoner is convicted must also be an offense in the United States. In the hearing, prisoners receive legal counsel from federal public defenders.
Transfers require the consent of the sentencing country, the receiving country, and the prisoner. By law, the Attorney General must evaluate and approve all applications for transfers, whether by Americans imprisoned abroad or by foreign nationals in American prisons.
Transfers require the consent of the sentencing country, the receiving country, and the prisoner.
At the request of the Department of Justice, U.S. magistrate judges have traveled to Russia, Japan, Thailand, Spain, South America and many more countries to hold verification hearings.
“It is one of the protections we afford our citizens,” says Magistrate Judge Tonianne J. Bongiovanni (D. NJ), who has presided at verification hearings for U.S. citizens abroad and for foreign nationals in U.S. prisons. Bongiovanni traveled to Thailand last year for a hearing; a “sobering” experience that she says gave her a renewed appreciation for the U.S. system and facilities where opportunities exist to reduce recidivism.
“In an American prison and under federal supervision,” Bongiovanni explains, “we can help offenders move beyond whatever landed them in trouble in the first place. They can transition into the community through a halfway house or drug rehabilitation program, earn their GED or obtain assistance in finding a job. Our system presents significant potential for assimilation versus the questionable future of a prisoner who just gets off a plane in the U.S. after release from a foreign prison.”
The program also is intended to remove American citizens from harsh, sometimes life-threatening conditions.
Magistrate Judge Arthur J. Boylan (D. Minn.) recently held a hearing for an American prisoner incarcerated in the Budapest Fegyhaz es Borton, the Budapest High and Medium Security Prison. In the United States, dangerous felons are usually segregated from the larger prison population. This prisoner feared for his safety in the open dormitory of the Budapest prison.
They can transition into the community through a halfway house or drug rehabilitation program, earn their GED or obtain assistance in finding a job.
“I see this as a humanitarian mission,” said Arenas, whose fluency in Spanish has eased tensions on many of his visits. “In some prisons, prisoners must pay to be fed or to guarantee their safety.”
In one South American prison built to house 350 prisoners but now housing more than 1,300, a prisoner was beheaded the day before Magistrate Judge Tony Castellanos (now retired) arrived for verification hearings, six had died the previous weekend. In another prison, within 20 minutes of the end of a transfer hearing Arenas conducted, prisoners took hostages. In yet another prison, it was the unsanitary conditions in an overcrowded prison that prompted a prisoner infected with Hepatitis C to seek transfer. “He was afraid of dying there,” Arenas said.
During the proceedings, which must be recorded, the magistrate judge determines the competency of the offender to consent to the transfer, advises the offender of the right to counsel, and also determines if there is any pending litigation concerning the offender’s conviction or sentence, or a pending appeal. If an appeal of collateral attack is filed, it could result in the offender’s return to the sentencing country. These and other conditions of transfer are read separately by the magistrate judge and explained to the offender. Each time, the offender is asked if he or she understands the condition and the consequences of the transfer.
“There are very rigid requirements for a reason. Once the transfer is ordered, it is irrevocable.”
“There are very rigid requirements for a reason,” said Arenas. “Once the transfer is ordered, it is irrevocable.”
Magistrate judges also hold hearings in the United States to transfer foreign nationals to their counties. These transfers differ from a removal or deportation because the United States provides the receiving country with detailed information about the prisoner who is placed directly in the custody of law enforcement officials in the receiving country.
On average, 8–10 consent verification hearings are held a year in countries around the world. There is one exception. Magistrate Judge Paul Stickney is one of the magistrate judges from the Northern District of Texas who travels four times a year to the federal prison in Monterrey, Mexico to hold verification hearings. Prisoners from all over Mexico are brought to Monterrey for the hearings; approximately 100 American citizens annually return to the United States to finish their sentences.
During his visits, Stickney is restricted to his hotel and travels to and from the prison with an armed escort. On one visit, the night before he arrived, three police officers were killed by alleged drug cartel members.
“It has become very frightening down there,” Stickney said. “We may reach a point where the State Department tells me it’s too dangerous. But until then, these are American citizens and I feel it is important we carry out our treaties.”