NCJ Number
43944
Date Published
1977
Length
12 pages
Annotation
THIS TESTIMONY FAVORING PASSAGE OF HOUSE BILL 7148 AUTHORIZING PRISONER TRANSFERS FROM FOREIGN INSTITUTIONS EXAMINES SOME CONSTITUTIONAL QUESTIONS WHICH WERE RAISED.
Abstract
THE UNITED STATES HAS SIGNED TREATIES WITH MEXICO AND CANADA BASED UPON THE PRINCIPLE THAT THE SENTENCE OF AN OFFENDER CONVICTED OF A CRIME IN A FOREIGN COUNTRY CAN BE MORE EFFECTIVELY AND HUMANELY SERVED IN HIS OR HER OWN COUNTRY. COMPANION BILLS (H.R. 7148 AND S. 1682) HAVE BEEN INTRODUCED IN THE CONGRESS TO IMPLEMENT THESE TREATIES. THE TREATIES OPERATE AS A BAR TO FURTHER PROSECUTIONS IN THE RECEIVING COUNTRY, PROTECTING THE PRISONER FROM DOUBLE JEOPARDY' THE TREATIES ALSO STATE THAT SENTENCES SHALL NOT BE LENGTHENED BY THE TRANSFER. THE PAROLE SYSTEM OF THE RECEIVING COUNTRY WILL GOVERN TIMING AND CONDITIONS OF RELEASE FROM PRISON. MAJOR OBJECTIONS HAVE CONCERNED THE LACK OF RIGHT OF CHALLENGE UNDER THE TREATIES. A PRISONER TRANSFERRED TO THE U.S. CANNOT CHALLENGE THE MEXICAN OR CANADIAN CONVICTION EXCEPT IN THE MEXICAN OR CANADIAN COURTS. THIS IS CALLED SIMILAR TO U.S. LAW WHICH LIMITS CHALLENGES TO COURTS WITH PROPER JURISDICTION. THE TREATIES DO NOT STRIP PRISONERS HELD IN A MEXICAN JAIL BY MEXICAN AUTHORITIES OF THE RIGHT TO CHALLENGE IN MEXICAN COURTS, AND IF THE PRISONER WANTS TO EXERCISE THAT RIGHT HE/SHE MAY. IF THE TRANSFER IS ACCOMPLISHED, THE PRISONER MUST WAIVE THE RIGHT TO CHALLENGE IN AMERICAN COURTS. OTHER TREATIES HAVE HAD SIMILAR PROVISIONS. THE SUPREME COURT HAS DECLARED THEM VALID, HOLDING THAT THE CONSTITUTION OF THE U.S. HAS NO RELATION TO CRIMES COMMITTED OUTSIDE THE JURISDICTION OF THE U.S. AGAINST THE LAWS OF A FOREIGN COUNTRY. THE TREATIES AUTHORIZE THE RECEIVING COUNTRY TO VERIFY THAT THE OFFENDER'S CONSENT TO THE TRANSFER IS VOLUNTARILY GIVEN AND PROVIDE FOR EXPLANATION OF CONSEQUENCES THEREOF BOTH OF THE CONGRESSIONAL BILLS REQUIRE THAT SUCH VERIFICATION BE BY A U.S. MAGISTRATE OR BY A SPECIFICALLY DESIGNATED CITIZEN OF THE U.S. THE SENATE BILL HAS BEEN AMENDED TO PROVIDE THAT SUCH VERIFICATION AND EXPLANATION OF RIGHTS BE PERFORMED BY A U.S. JUDGE TO AVOID EVEN THE SLIGHTEST APPEARANCE OF A CONFLICT OF INTEREST. BOTH BILLS ALSO PROVIDE FOR ATTORNEYS FOR PRISONERS BEING BOTH TRANSFERRED OUT OF THE U.S. AND INTO THE U.S. IN ADDITION, H.R. 7148 PROVIDES THAT A TRANSFERRED PRISONER WILL BE ELIGIBLE FOR PAROLE UPON SERVICE OF ONE-HALF OF HIS SENTENCE, EXCEPT IN THE CASE OF DEFENDENTS UNDER AGE 22 AT TIME OF CONVICTION. THESE DEFENDENTS WOULD BE ELIGIBLE FOR PAROLE AT ANY TIME. THIS CHANGE WAS MADE BECAUSE MOST AMERICANS BEING HELD IN FOREIGN JAILS HAVE BEEN CONVICTED OF DRUG CHARGES: THIS PROVISION WOULD PERMIT GREATER FLEXIBILITY IN PAROLE ADJUSTMENT OF FOREIGN DRUG-OFFENSE SENTENCES, WHICH ARE SIGNIFICANTLY LONGER THAN SENTENCES FOR SIMILAR OFFENSES IN THE U.S. (GLR)