[Senate Executive Report 106-21]
[From the U.S. Government Publishing Office]
106th Congress Exec. Rept.
SENATE
2d Session 106-21
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INTER-AMERICAN CONVENTION ON SERVING CRIMINAL SENTENCES ABROAD
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September 29, 2000.--Ordered to be printed
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Mr. Helms, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 104-35]
The Committee on Foreign Relations, to which was referred
the Inter-American Convention on Serving Criminal Sentences
Abroad, done in Managua, Nicaragua, on June 9, 1993, signed on
behalf of the United States at the Organization of American
States Headquarters in Washington on January 10, 1995 (Treaty
Doc. 104-35) having considered the same, reports favorably
thereon with the conditions indicated below, and recommends
that the Senate give its advice and consent to the ratification
thereof as set forth in this report and the accompanying
resolution of ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Summary..........................................................2
III. Entry Into Force and Denunciation................................3
IV. Committee Action.................................................4
V. Committee Recommendation and Comments............................4
VI. Text of Resolution of Ratification...............................4
I. Purpose
The Inter-American Convention on Serving Criminal Sentences
Abroad (``the Convention'') would provide a mechanism for the
reciprocal transfer of persons incarcerated in prisons in
States that are Parties to the Convention to permit those
individuals to serve their sentences in their home countries.
II. Summary
A. GENERAL
The Convention was adopted and opened for signature at the
twenty-third regular session of the Organization of American
States (OAS) General Assembly meeting in Managua, Nicaragua, on
June 9, 1993. It was signed by the United States at OAS
Headquarters in Washington on January 10, 1995. The Convention
entered into force on April 13, 1996, thirty days after the
deposit of the second instrument of ratification by Venezuela.
As of the date of this report, six OAS member states have
deposited instruments of ratification.
The United States domestic implementation of prisoner
transfer agreements is covered generally by the provisions of
18 U.S.C. Sec. Sec. 4100 et seq. Among other things, the
federal statutes provide for and govern the transfer procedure,
particularly the verification of the consent of the prisoner to
be transferred.
The Convention is the first multilateral treaty of its kind
signed by the United States since the Reagan Administration
signed the Council of Europe prisoner transfer convention in
1983. The Convention follows the format of bilateral United
States prisoner transfer agreements with Mexico and Canada, and
the Council of Europe convention.
B. KEY PROVISIONS
The Convention establishes basic conditions for transfer.
In addition, it requires each Party to inform any sentenced
person covered by the Convention about its provisions. Parties
must also keep a sentenced person informed about the status of
his/her transfer. For the United States, these functions
generally are already performed by American consular officials
abroad, where U.S. prisoners are concerned, or by federal and
state penal systems in the United States where prisoners of
foreign nationality are concerned.
The Convention also establishes the procedure for
transfers. A request for transfer may be made by the sentencing
state, the receiving state, or the sentenced person. Consequent
procedures may be initiated by either the sentencing state or
the receiving state. Where the sentencing or receiving state
has initiated the transfer, the sentenced person must also
consent. Before the transfer is made, the sentencing state
shall permit the receiving state to verify, if it wishes,
through an official chosen by the receiving state, that the
prisoner has consented to the transfer with full knowledge of
the legal consequences.
The request for transfer must be processed through the
central authority designated pursuant to the Convention. In the
United States, the Office of Enforcement Operations of the
United States Department of Justice's Criminal Division is the
action office for the conduct of international prisoner
transfer operations. The Party receiving the request shall
inform the other Party promptly of its decision to disapprove
the transfer, and where possible and appropriate, explain the
reasons for the denial.
The Convention provides that the laws and procedures of the
receiving Party shall regulate the execution of the sentence
with respect to any reduction of the time of imprisonment or to
alternative service of the sentence, such as conditional
release or parole. No sentence may be enforced by the receiving
state in a manner that would lengthen the sentence beyond the
date on which it would expire in the sentencing state. A
sentencing Party may request, via the central authorities, a
report on the status of service of the sentence of any
individual transferred to a receiving state pursuant to the
Convention.
The Convention also provides that the sentencing state
shall retain exclusive jurisdiction for the review of
convictions and sentences of its courts. This is typical of
such agreements. Although the laws of the receiving state
govern the administration of a sentence, the sentencing state
still retains the sole right of actual review and of reversing
a conviction or pardoning the offender.
Article XII of the Convention states that the Convention
shall not be construed to restrict other bilateral or
multilateral treaties or other agreements. Thus, the United
States would still retain discretion to invoke bilateral or
other multilateral prisoner transfer agreements when to do so
would be advantageous to us.
At the time the Convention was transmitted to the Senate,
the Executive Branch recommended that one understanding be made
with respect to Articles III, IV, V, and VI, and that one
reservation be made to Article V.
The proposed understanding is that the consent requirements
are ``cumulative,'' meaning that each transfer requires the
consent of the sentencing state, the receiving state, and the
prisoner, and also the consent of a state or provincial
government, if the prisoner was sentenced by a state or
provincial authority under the laws of that state or province.
Under the proposed reservation, the United States will
require that whenever one of its nationals is to be returned to
the United States, the sentencing state must provide the United
States documents required to be provided (copy of the sentence,
information concerning time served and potential reduction in
time served due to work, good behavior, pre-trial
incarceration, etc.) in English, as well as the language of the
sentencing state, if different. The United States undertakes to
likewise provide a translation of the required documents into
the language of the receiving state, if other than English.
III. Entry Into Force and Denunciation
A. ENTRY INTO FORCE
For ratifying states, the Convention entered into force on
the thirtieth day following the date on which the second
instrument of ratification was deposited. Thereafter, for a
ratifying or acceding state, the proposed Convention would
enter into force on the thirtieth day following the day on
which such state has deposited its instrument of ratification
or accession.
The Convention is now in force.
B. DENUNCIATION
Any state party may denounce the proposed Convention by
registering such denunciation with the General Secretariat of
the Organization of American States. At the end of one year
from the date of the denunciation, the proposed Convention
would cease to be in force for the denouncing state. The
Convention's provisions, however, would remain in effect for
the denouncing state until the sentences of transferred persons
have been served, and until pending requests for transfer have
been processed and executed, absent agreement to the contrary
by the parties.
IV. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed Convention on September 12, 2000, (a transcript of
the hearing and questions for the record can be found in Senate
hearing 106-660 entitled ``Consideration of Pending
Treaties''). The Committee considered the proposed Convention
on September 27, 2000, and ordered it favorably reported by
voice vote, with the recommendation that the Senate give its
advice and consent to the ratification of the proposed
Convention subject to the reservation, understanding,
declaration and proviso noted below.
V. Committee Recommendation and Comments
The Committee on Foreign Relations recommends favorably the
proposed Convention. On balance, the Committee believes that
the proposed Convention is in the interest of the United States
and urges the Senate to act promptly to give its advice and
consent to ratification.
NEGOTIATING CRITERIA
The Committee advises the Executive Branch to bear in mind,
and where appropriate, apply the negotiating criteria for
bilateral prisoner transfer treaties set forth in Section 330
of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (included in P.L. 104-208).
VI. Text of the Resolution of Ratification
Resolved (two thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Inter-American Convention on Serving
Criminal Sentences Abroad, done at Managua, Nicaragua, on June
9, 1993, signed on behalf of the United States at the
Organization of American States Headquarters in Washington on
January 10, 1995 (Treaty Doc. 104-35), subject to the
conditions of subsections (a) and (b).
(a) The advice and consent of the Senate is subject to
the following conditions, which shall be included in the
instrument of ratification of the Convention:
(1) Reservation.--With respect to Article V,
paragraph 7, the United States of America will require
that whenever one of its nationals is to be returned to
the United States, the sentencing state provide the
United States with the documents specified in that
paragraph in the English language, as well as the
language of the sentencing state. The United States
undertakes to furnish a translation of those documents
into the language of the requesting state in like
circumstances.
(2) Understanding.--The United States of America
understands that the consent requirements in Articles
III, IV, V and VI are cumulative; that is, that each
transfer of a sentenced person under this Convention
shall require the concurrence of the sentencing state,
the receiving state, and the prisoner, and that in the
circumstances specified in Article V, paragraph 3, the
approval of the state or province concerned shall also
be required.
(b) The advice and consent of the Senate is subject to
the following conditions, which are binding upon the President
but not required to be included in the instrument of
ratification of the Convention:
(1) Declaration.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(2) Proviso.--Nothing in this Treaty requires or
authorizes legislation or other action by the United
States of America that is prohibited by the
Constitution of the United States as interpreted by the
United States.