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[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

                                _______
                                

               September 29, 2000.--Ordered to be printed

                                _______
                                

          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.

                                    
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