79–115

106TH CONGRESS EXEC. REPT.

2d Session " ! SENATE 106–21

INTER-AMERICAN CONVENTION ON SERVING CRIMINAL

SENTENCES ABROAD

SEPTEMBER 29, 2000.—Ordered to be printed

Mr. HELMS, from the Committee on Foreign Relations,

submitted the following

REPORT

[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.

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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. §§

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

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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

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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

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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.

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