Transferring Alien Inmates from U.S. to Foreign Prisons under International Treaties

By Dan Cadman on September 18, 2015

The Department of Justice Office of Inspector General (DOJ OIG) has issued an interesting follow-up report on a subject it first studied in 2011: transfer of federal prisoners who are foreign nationals to prisons in their home countries to serve the remainder of their sentences. The OIG's first report found that less than 1 percent of the over 40,000 inmates from treaty transfer nations in Federal Bureau of Prisons (BOP) custody in fiscal year 2010 were ultimately transferred back to their home countries.

The follow-up report, "Status Review on the Department's International Prisoner Transfer Program", can be found on the OIG's website, along with a podcast and a brief two-minute overview video by DOJ's inspector general.

The premise of the prisoner transfer program is that, by means of treaties with other governments, prisoners can be exchanged to serve their sentences in their home countries rather than in a foreign place. It is an interesting niche where the controversial subject of immigration and criminals is concerned. The fundamental requirements are simple: the prisoner must make a request; and the country of which he is a national must be a treaty partner.

The report contains some interesting tidbits. For instance:

  • As of 2014, almost 43,000 inmates in federal prisons were from signatory nations pledged to prisoner transfer treaties. This is up from nearly 33,000 in 2005, a substantial increase of 31 percent.

  • The 43,000 inmates represented 20 percent of the federal inmate population in 2014. (A cautionary note: It would be wrong to conclude that the overall percentage of aliens in federal Bureau of Prisons (BOP) custody is 20 percent because there are additional aliens serving time who are not from countries with which the United States has a treaty authorizing transfer of prisoners.)

  • "[I]n FY 2013 foreign national inmates from treaty nations constituted 82 percent of the total BOP contract prison inmate population." (Emphasis added.)

The DOJ OIG suggests that, although progress has been made in ensuring alien inmates are aware of and able to apply for transfer, not enough has been done by BOP or DOJ to bring those transfers to reality. Although applications rose from 14,000 in 2010 to more than 24,000 in 2014, only about 227 prisoners are being transferred per year. The OIG suggests that a working group of BOP, DOJ, and Department of State (DOS) officials should meet with foreign authorities of treaty nations to press the program forward.

In theory the premise is excellent: Save taxpayer dollars spent on incarceration while removing alien criminals from our midst. Speaking on a practical level, though — and I speak with some experience here — there are some constraints on putting the theory into practice. The OIG is clearly aware of at least some of these difficulties, including the key problem of persuading treaty nations to actually accept their prisoners. This is not dissimilar to what federal immigration authorities face in persuading countries to issue the travel documents required to repatriate their nationals as a part of the deportation process. Some nations drag their feet for inordinate periods of time; some just outright refuse.

Considered rationally, this foot-dragging should not come as a surprise. Receiving countries get no reimbursement for taking prisoners and there is no one-to-one reciprocity built into the treaties, so they are not getting rid of one prisoner while accepting another. There may not even be any American prisoners within their penal system.

In other words, a receiving country adds to its own financial and prison overcrowding burdens by accepting the prisoner. It will also potentially be accepting responsibility for a dangerous, violent individual. While they may ultimately be faced with the question of repatriation in the future if the alien is released to immigration authorities from BOP for deportation, if the decision is deferred to the last minute, perhaps they will not have to confront it because anything could happen in the meantime. It is not clear that any number of meetings or any amount of cajoling or pressure from DOS would change this — and unlike refusal to cooperate by providing travel documents for deportees (which refusal theoretically permits a shut-down of visa granting operations, although it has been invoked only once by DOS), there are no statutory sanctions when a country declines to accept a prisoner transfer.

There are also other impediments to use of the program. As mentioned earlier, it is the prisoners themselves who invoke the treaty process by applying. Many aliens simply don't want to spend "quality time" in the jails of their own nations — they understand clearly that the standards of treatment and existence in those jails, especially in the third world, will never come close to that of American penitentiaries. In some countries, prisoners don't eat or wear decent clothing unless their relatives deliver the necessary food, items, and often money to ensure the guards deliver what's provided. The alien inmates also know that once they've left the United States any hope they have of evading deportation, however small, is over. Staying means fighting removal, even if it is against improbable odds, and hoping that the president's executive actions may somehow reach down to touch them, too.

There are also substantial reasons why the United States should think carefully about which prisoners it is willing to permit to be transferred. Just a moment's reflection explains why. Think Joaquin "El Chapo" Guzman, who has twice escaped under circumstances suggesting corruption or intimidation of prison guards, and whose most recent escape bodes ill for the United States. Or think violent Taliban jailbreaks in Afghanistan.

Finally think of the fact that, once in custody of a foreign government, a prisoner's sentence and custodial circumstances are entirely under its control, not ours. Such governments can, and have, inexplicably released prisoners contrary to their U.S. sentences, and contrary to treaty terms. Foreign systems often are incapable of keeping prisoners in lockdown where they are supposed to be. Jails (even whole governments) are corrupt, societal conditions are volatile, the rule of law is not firmly entrenched, and regimes are mercurial.

All of these factors form natural constraints on the program. Our government officials would do well to move slowly and carefully where prisoner treaty transfers are concerned. Considering the program solely in the context of financial savings could result in a false economy because ill-thought-through expansion may actually redound against the public security with no discernible benefits.