NCJ Number
67443
Journal
Wisconsin Law Review Volume: 1980 Issue: 1 Dated: (1980) Pages: 25-60
Date Published
1980
Length
36 pages
Annotation
THE TREATY BETWEEN THE UNITED STATES AND BOLIVIA ON THE TRANSFER OF CONVICTED OFFENDERS IS EVALUATED AND CRITIZED AS VULNERABLE TO PROSECUTORIAL ABUSE, CONSTITUTIONALLY UNSOUND, AND UNNECESSARY.
Abstract
UNDER THE TREATIES' TERMS, A CONVICTED PRISONER IS TRANSFERRED AND BECOMES SUBJECT TO THE PAROLE JURISDICTION OF HIS OR HER NATIVE COUNTRY. PROSECUTORIAL ABUSE IS POSSIBLE. PROSECUTORS CAN ENCOURAGE COOPERATION OF A TRANSFERRED PRISONER. MOREOVER, EVIDENCE SUPPORTS THE CHARGE THAT PROSECUTORS ENCOURAGE THE APPREHENSION AND CONVICTION OF AMERICANS ABROAD WHEN CONVICTIONS WOULD BE IMPOSSIBLE UNDER AMERICAN LAW. THE TRANSFER TREATIES, THEN, ENABLE THE AMERICAN AUTHORITIES TO OBTAIN CUSTODY OF THE PRISONER AND ENCOURAGE BOLIVIAN COOPERATION IN ONGOING INVESTIGATIONS. FURTHERMORE, THE TREATIES ARE UNNECESSARY. SEVERAL ALTERNATIVES COULD BE USED TO AID AMERICAN PRISONERS IN FOREIGN LANDS WHICH WOULD MEAN LESS RESTRICTION OF THEIR CONSTITUTIONAL RIGHTS. FOR INSTANCE, THE U.S. COULD ENCOURAGE EXTRADITION AND PROSECUTE THE ACCUSED UPON THEIR RETURN PURSUANT TO EXTRATERRITORIAL STATUTES. THIS ALTERNATIVE IS PARTICULARLY FEASIBLE IN BOLIVA WHERE THE GOVERNMENT FORMERLY DEPORTED ACCUSED AMERICANS EVEN WITHOUT ASSURANCE OF PROSECUTION. IN ADDITION, PROCEDURAL SAFEGUARDS COULD BE DRAFTED INTO AN ACCORD TO PROTECT AMERICANS PRIOR TO CONVICTION RATHER THAN ONLY AFTER SENTENCING. FINALLY, THE TRANSFER TREATIES ARE UNACCEPTABLE BECAUSE THEY ARE PREGNANT WITH CONSTITUTIONAL INFIRMITIES. TO QUALIFY FOR TRANSFER, A PRISONER MUST CONSENT TO A WAIVER OF THE RIGHT TO APPEAL. CONSENT GIVEN UNDER SUCH DURESS CANNOT BE VOLUNTARY. MOREVER, THE JUDICIAL PROCESS LEADING TO CONVICTION OFTEN LACKS ANY SEMBLANCE OF DUE PROCESS. THE PROBLEMS WITH THE TREATIES WERE DEMONSTRATED IN THE VELEZ CASE WHERE THE COURT GRANTED WRITS OF HABEAS CORPUS FOR THREE TRANSFERRED PRISONERS AND UNDERMINED THE CONCEPTUAL FOUNDATION OF THE TREATIES. CASE LAW AND OTHER REFERENCES ARE CITED AND THE HISTORICAL SITUATION IN BOLIVIA WHICH TRIGGERED THE CREATION OF THE TRANSFER TREATIES IS DISCUSSED. (AUTHOR ABSTRACT MODIFIED)