CONTROL THAT LIMITED THE NUMBER OF INMATES
TRANSFERRED
The treaty transfer program is a voluntary program for the inmate and the treaty nation, and not all eligible inmates want to be transferred. Also, treaty nations do not approve all of the transfer requests that IPTU has approved. Treaty nations often are not timely in their approval of inmates that IPTU has approved for transfer. In addition, in FY 2010, about 22 percent of foreign nationals in BOP custody were from countries that did not have an inmate transfer treaty with the United States.
The treaty transfer program is a voluntary program for the inmate and the treaty nation, and not all eligible inmates want to be transferred.
According to 18 U.S.C. § 4107, the treaty transfer program is a voluntary program and transfers must be approved by the United States (OEO), the inmate, and the treaty country. If inmates do not apply to the program or the inmate’s country of citizenship does not approve the transfer, then there is nothing the Department can do to transfer the inmate through the treaty transfer program. In interviews, we were told by OEO, IPTU, and BOP staff that inmates may not want to return to their home countries for a number of reasons. The reasons included having no ties the home country, believing prison conditions are better in the United States than in the home country, or hoping to remain in the United States after the prison sentence is served rather than being deported.
Treaty nations do not approve all of the transfer requests that IPTU has approved.
We found that some countries, such as Mexico and Canada, are reluctant to take back their inmate citizens. (See Appendix IX for a complete list by country of applications, approvals, and transferred inmates). For example, although IPTU approved the applications of 1,267 Mexican inmates for treaty transfer, only 766 inmates (60 percent) were transferred to Mexico from FY 2005 through FY 2010.
Mexico’s low approval rate for inmate transfers is attributed to two factors. First, the Mexican government has stated that its prisons are overcrowded. Second, as previously discussed, Mexico’s criteria
regarding what inmates it will take back limit the number of Mexicans transferred. OEO and IPTU officials told us the Department continues to express its concern over the restrictive criteria used by Mexico. The OEO and IPTU officials said the Department has made efforts to address
Mexico’s low approval rate, including annual discussions with Mexican officials, but has been unsuccessful in convincing Mexico to modify its criteria.79 The IPTU Chief said, “We have expressed consistently that those criteria are unduly restrictive.” She also explained that there is a second working group meeting held quarterly with Mexican embassy officials after a group of inmates is transferred. She added that these working group meetings are “more a nuts and bolts everyday working group” at which Mexico’s criteria to accept inmates back are discussed.80
OEO’s Director said that OEO and IPTU officials also met with Canadian officials to discuss the number of inmates Canada is willing to accept. OEO’s Deputy Chief said there has been a decline in transfers to Canada. An IPTU analyst said that Canada used to take back all
inmates approved for transfer, but that is no longer the case. We found that although IPTU approved 446 Canadian inmates’ requests for treaty transfer from FY 2005 through FY 2010, 297, or 67 percent, were
actually transferred. In a 2007 report to Congress, the Attorney General stated that the increase in the Canadian government’s denials may be attributed to changes in the Canadian government.81 According to the Correctional Service of Canada, transfers from the United States to Canada declined from 82 in FY 2006 to 37 in FY 2007.82
79 IPTU staff said that annual meetings with Mexican officials usually result in a slight increase in the number of inmates Mexico accepts, but the number accepted in subsequent transfers continues to be limited.
80 Participants of these meetings include the representatives of the Embassy of Mexico, the Secretariat of Public Safety, Mexican Office of the Attorney General,
U.S. Department of State, and the U.S. Department of Justice (IPTU and the BOP). 81 Alberto Gonzales, Attorney General, Department of Justice, submission to the Committees on the Judiciary of the United States Senate and House of Representatives, concerning “The Effectiveness of the International Prisoner Transfer Treaties to which the United States was a party in FY 2005 and FY 2006” (April 2007).
82 Correctional Service Canada, Annual Report on the International Transfer of
Offenders 2008-2009, Annex “A” - Transfers to Canada by Fiscal Year, http://www.csc-
We also found that 71 inmates from Central American countries were approved for treaty transfer by IPTU, but only 54 percent were transferred from FY 2005 through FY 2010.83 Overall, foreign country decisions not to allow their citizens to transfer to their home countries to serve their sentences limit the Department’s ability to transfer willing inmates home.
Treaty nations often are not timely in their approval of inmates that the Department has approved for transfer.
Once IPTU and the treaty nation have approved an inmate’s request for transfer, when the inmate actually will be transferred depends on the treaty nation. From FY 2005 through FY 2010, treaty nations took 288 days, on average, to approve the transfer of their
nationals after IPTU had approved the inmates’ requests.84 These delays limit the number of inmates that can be transferred in a given year. According to IPTU data, from FY 2005 through FY 2010, IPTU approved 652 transfers, but then waited for over a year for the inmates’ countries to adjudicate the applications. Of the 652 inmates, 427 (66 percent) were from Mexico, 105 (16 percent) were from Canada, and 120
(18 percent) were from 28 other countries. As a result, in some cases inmates completed their sentences and were released or withdrew their applications. Table 3 shows the outcomes of these cases and points out only 1 inmate had been approved and was awaiting transfer, while 78 were still waiting for a foreign country decision a year after IPTU had approved their transfer requests.
scc.gc.ca/text/prgrm/inttransfer/2008-09/2008-09-eng.shtml (accessed May 24, 2011).
83 Central American countries include Belize, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama.
84 These are only requests that were approved by the foreign country. We did not have data on the date a foreign country denied a request.
Table 3: Outcomes of Cases Approved by the Department that
Waited for Foreign Country Decisions for Over 1 Year
Outcome Mexico Canada Other Countries
Approvals for transfer
Prisoners transferred 0 0 0
Prisoner awaiting transfer 0 0 1
Outcomes other than approval for transfer
Denied by foreign country 269 56 13 Withdrawal of previous U.S.
approval due to impending release* 102 20 40
Prisoner released 13 20 36
Prisoner withdrew application 1 3 0
Still awaiting foreign country decision 42 6 30
Total 427 105 120
* Prisoner was too close to the release date to make the transfer practical, so the Department withdrew its approval.
Source: IPTU.
The untimely processing of inmates by treaty nations results in prisoners who are approved for transfer by the United States spending more time in BOP custody. In many cases, the United States is required to withdraw its approval of inmates suitable for transfer because the treaty nations never approved the cases or did so too late to make transfers practicable.
In FY 2010, about 22 percent of foreign nationals in BOP custody were from countries that did not have an inmate transfer treaty with the United States.
One of the first eligibility criteria that BOP staff verify is an inmate’s country of citizenship to determine if it is a treaty nation. Although the United States has treaties with 76 countries, it does not have treaties with countries well represented in the BOP’s current inmate population (such as Colombia, Cuba, and the Dominican Republic). While the number of inmates from non-treaty countries has decreased from 17,438 in FY 2005 to 11,789 in FY 2010, these inmates still
these inmates represented 107 countries that did not have transfer treaties with the United States. OEO stated that the State Department favors the use of multilateral transfer treaties because bilateral treaties are costly, time consuming to negotiate, and are administered under different standards. Therefore, should a country choose to enter into a treaty transfer agreement, it must do so through the Council of Europe or the Organization of American States.
Conclusion
Factors outside of the Department’s control limit the number of inmates that can be transferred from the United States through the treaty transfer program. Because the program is voluntary, inmates have the option not to participate and the treaty countries have the option not to accept their citizens for transfer. In addition, those countries that have agreed to the transfer of their citizens often take a long time to do so. Further, a sizeable proportion of the BOP’s foreign inmate population is not from treaty countries. To transfer them to their home countries would require the home countries to either join one of the multilateral treaties or to negotiate a new treaty, which is a costly and time consuming process. Finally, according to OEO, bilateral treaties sometimes result in differing standards that make it more difficult for the central authority to administer.