R 271808Z JUN 01
FM SECSTATE WASHDC
TO AMEMBASSY SANTIAGO
AMEMBASSY SAN JOSE
AMEMBASSY SAN SALVADOR
AMEMBASSY BUENOS AIRES
AMEMBASSY LA PAZ
AMEMBASSY SANTO DOMINGO
AMEMBASSY PORT AU PRINCE
AMEMBASSY PORT OF SPAIN
INFO ALL CANADIAN POSTS COLLECTIVE
ALL US CONSULATES IN MEXICO COLLECTIVE
UNCLAS STATE 112248
E.O. 12958: N/A
TAGS: CJAN, CASC, KJUS, KCRM, PREL, SNAR, KTIA
SUBJECT: OAS PRISONER TRANSFER TREATY - GENERAL
1. Summary: This is a follow-Up cable on the Inter-American Convention on Serving Criminal Sentences Abroad (hereafter the Convention), which entered into force for the United States on June 24, 2001. This cable provides specific information on the Convention and general information on the prisoner transfer process for posts where no prisoner transfer treaty is in force. End Summary.
2. GENERAL INFORMATION
The Attorney General of the United States is the designated authority (the "Central Authority") for transferring prisoners into or out of the United States. USG domestic implementing legislation is found at 18 USC 4100 -4115. It is applicable to prisoner transfer treaties, whether bilateral or multilateral.
3. Although the U.S. does have twelve bilateral treaties WHA bilaterals are Bolivia, Canada, Mexico, Panama and Peru), the U.S. Department of State and the U.S. Department of Justice have preferred to address, when and where possible, the issue of prisoner transfers through multilateral conventions like the OAS and the COE. Our preference for multilateral conventions is based on our assessment that both the COE and OAS treaties offer substantially all the mutual benefits that could be expected from a bilateral treaty. Multilateral treaties offer an existing mechanism for new states to join, as well as for Standardizing transfer procedures for current members. Additionally, negotiating, concluding and ratifying bilateral treaties has proven to be a long, uncertain, and human and financial resource-intensive process. For these reasons, since the early 1980s, the United States has consistently declined to enter into bilateral negotiations with the many countries that have expressed interest in bilateral prisoner transfer treaties. Multilateral conventions like the OAS offer an attractive and practical solution, and provide the most effective and efficient manner in which to implement a future prisoner transfer mechanism between the United States and countries in WHA. The OAS Convention allows countries outside of the OAS to join and is preferable to the COE in that the OAS Convention makes specific reference to the need for the U.S. states to approve a transfer.
4. The USG does not "sponsor" nations wishing to accede to the COE Convention and will adhere to this policy with nations wishing to accede to the OAS Convention. Nevertheless, the U.S. will generally support the accession of new member states to the OAS convention.
5. THE OAS CONVENTION
A. The following information pertains to the OAS Convention. Questions regarding this telegram may be directed to CA/OCS/PRI via cable or e-mail at . . . . Later questions on the prisoner transfer process should be directed to the applicable CA/OCS/ACS/WHA country officer.
B. The OAS Convention contemplates direct communication between designated central authorities involved in a specific transfer and on general transfer matters. Article V(2) provides that requests for transfer shall be processed through the Central Authorities referenced in Article XI or, in the absence thereof, through consular or diplomatic channels. In practice, U.S. Embassies, consulates and the Department will have a secondary role in implementing the Convention, as DOJ will perform the prisoner transfer function. Embassies and consulates will perform the traditional consular function of providing assistance and protection to U.S. citizens incarcerated abroad. With assistance from the Department, posts will provide information when requested by the prisoner on the transfer process, certify United States citizenship for the purposes of the transfer convention, inform the prisoners where they may direct their transfer related questions and, when necessary, assist the Amcit prisoners in forwarding documentation required under the transfer convention to DOJ.
6. When the Convention enters into force, questions concerning the Convention should be directed as follows:
(A) General questions from the Convention country about the OAS should be addressed to the OAS.
(B) Questions from the Convention country relating to Amcit prisoners and U.S. procedures should be directed to the United States designated Central authority: Paula A. Wolff, Chief, International Prisoner Transfer Unit, Office of Enforcement Operations (OEO), Criminal Division, U.S. Department of Justice, P.O. BoX 7600, Ben Franklin Station, Washington, D.C. 20044-7600
(C) Questions from U.S. posts may go through CA/OCS or may go directly to DOJ/OEO.
(D) Questions from Amcits incarcerated abroad about the effects of the Convention on their case may be addressed to: Attention: Prisoner Transfer Treaty Matters, Chief, Defender Services Division, Administrative Offices of the U.S. Courts, Washington, D.C., 20544, U.S.A.
If incarcerated AMcits choose to write to the Defender Services Division to inquire about transferring to the U.S., they should include the below listed information (a) full name, date and place of birth and all aliases used; (b) date of arrest; (c) date the offense was committed; (d) the precise charges against the prisoner, including the type and total quantity of the drug involved in narcotics offenses; (e) the sentence imposed by the foreign court; and (f) all information of record regarding prior misdemeanor and felony convictions in the U.S. Section (f) should include: the precise charges[s], date/place of arrest and conviction; sentence imposed; date Released from and/or probation status at the time of the commission of the offense in the sentencing country. In this initial communication do not list or include other foreign convictions, tribal court convictions, expunged convictions or juvenile matters.
(E) General questions from prisoners in the United States or abroad usually may be answered by reference to the DOJ website at HTTP://WWW,USDOJ.GOV/CRIMINAL/OEO/INDEX.HTM. Otherwise, the questioner should be referred to DOJ/OEO or Defender Services, as appropriate.
7. THE OAS PROCESS AND PRISONER TRANSFERS
(A) Under the OAS Convention, as in all prisoner transfer treaties, the consent of the U.S. Government, the host government and the prisoner are all required to effect a transfer. Additionally, prisoners from the host country in the United States are subject to the same kind of consent provisions though it should be noted that an alien incarcerated in a U.S. State prison must obtain the consent of the U.S. State, in addition to the consent of the respective governments and the prisoner's own consent, as mentioned above. Whether a prisoner may be transferred or not is a discretionary decision to be made by each country. Some states in the United States lack enthusiasm for prisoner transfer treaties and some have indicated an unwillingness to participate in such transfers. Forty-five of the fifty states, and the Commonwealth of the Northern Mariana Islands have enacted implementing legislation but only a handful are currently participating.
(B) Under the Convention, a prisoner is considered to be eligible for transfer only when the prisoner's final sentence has been received (i.e. when no ordinary legal appeal is pending and the period for appeal has expired). This is defined in Article I (3) of the OAS Convention. All fines and court costs imposed as part of the prisoner's sentence usually must be paid. Only U.S. nationals may be considered for transfer to the U.S.
(C) Should a prisoner's request for transfer be approved by both governments, and the relevant state government, if necessary, arrangements will be made between the two governments for the prisoner's transfer to be effected at a time mutually agreeable to the governments.
(D) U.S. law (18 USC 4108) requires that a prisoner who is transferring into or out of the U.S. give consent to the transfer before being transferred. This is done at a Consent Verification Hearing (CVH). For prisoners transferring from foreign countries to the United States this is normally conducted by a United States Magistrate judge in the foreign country prior to the transfer date. CA/OCS/ACS will provide posts with host country clearance cables for the travel of U.S. Magistrate Judges, Federal Public Defenders and Bureau of Prisons escorts for a consent verification hearing and actual transfer of the prisoner. These events are scheduled to coincide.
(E) Some countries may be sensitive to the idea of a U.S. Magistrate judge conducting a CVH in the home country. If this poses a problem in the host country, another U.S. official, such as the Consular Officer, may be commissioned to act as the verification officer.
(F) To effect the transfer, prisoners have the right to consult an attorney at their expense. If they cannot afford an attorney, they may request that they be represented by an appointed attorney at U.S. Government expense. The appointed attorney, usually from a U.S. Federal Public or Community Defender organization, will be designated by the Chief of the Defender Services Division of the Administrative Offices of the U.S. Court and be appointed by the verifying officer. The designated appointed attorney would travel to the foreign country and would discuss with each eligible prisoner the consequences of transferring. If the prisoner still wishes to transfer, the prisoner would then appear with the appointed attorney before the verification officer at the CVH and give his/her consent to the transfer.
(G) Special arrangements are made for handling cases involving minors or the mentally ill - - see 18 USC sections 4102(8) and (9).
(H) Neither an inquiry nor a request for transfer will bind a prisoner to give final consent. But once final consent is given and verified at the CVH, the consent is irrevocable.
(I) The transferee returns to the United States in the custody of Bureau of Prison officials and will be placed in a Federal prison. This is done at USG expense.
(J) IMPORTANT: A prisoner cannot, repeat cannot, "attack" the foreign conviction in U.S. Courts after transferring under the convention; however, U.S. law does provide that a transferred prisoner will not incur any loss of civil, political or civic rights other than those which under U.S. or state law would result from the fact of the conviction in the foreign country.
(K) Under the Sentencing Reform Act of 1984, prisoner's are entitled to a release determination hearing by the U.S. Parole Commission after transferring to the United States (18 U.S.C. section 4106A).
8. ANSWERING QUESTIONS FROM AMCIT PRISONERS
Questions relating to the Convention itself can often be answered through a reading of the Convention by the prisoner or the prisoner's attorney. CA/OCS/PRI will forward to all posts a copy of the Convention, which can also be accessed through the OAS website at http://www.oas.org/juridico/english/treaties/A-57.htm and is linked to the CA home page (http://travel.State.gov) on the Internet. Posts should not attempt to answer questions about an individual's specific case but should adhere to the guidance provided on the CA website concerning the mechanics of the transfer and the administration of the sentence. Neither should post or individual Conoffs attempt to answer any questions pertaining to what might happen to a prisoner once that prisoner transfers to the U.S. Posts and Conoffs may assist individuals in attempting to contact appropriate entities as outlined in this message.
9. DOCUMENTATION OF AMCIT PRISONERS
One of the eligibility requirements for a prisoner to be transferred to the United States under the OAS is that the prisoner be a U.S. national. In accordance with current guidelines, prisoners are responsible for establishing their citizenship to the satisfaction of the consular officer in order to receive consular services. See 7 FAM 413.1 and 7 FAM 493. Likewise, prisoners will have to establish their citizenship for the purposes of participating in the transfer program. Normally, prisoners transferring to the United States under the transfer program are issued cards of identity, at no fee, as evidence of their U.S. citizenship. The cards are held by post and turned over to the U.S. Bureau of Prisons personnel at the time of transfer for presentation to INS/Customs upon entry into the United States.
10. The Department hopes that post will find this overview of the OAS Convention and the prisoner transfer process helpful. Any additional questions regarding implementation of the OAS should be addressed to CA/OCS/PRI . . . .
Questions concerning individual prisoner transfer cases should be addressed to the respective geographic division of CA/OCS/ACS.