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Foreign Prisoners May Be Eligible To Serve Criminal Sentences In Their Native Country

The United States is a signatory to many treaties with other countries that allow the transfer of prisoners from countries in which they have been criminally convicted back to their native country.

Specifically, the United States has signed onto a multilateral treaty entitled The Inter-American Convention On Serving Criminal Sentences Abroad (the OAS Convention).

OAS Convention Article V "Procedure For Transfer" provides the procedure for applying the transfer.  The request for transfer may be made by the sentencing country, the receiving country, or the sentenced person and shall be processed through the General Secretariat of the Organization of American States.

Approval from the sentencing state is required for an application of transfer if the state has criminal jurisdiction independent of the federal government.  United States Attorney Manual §743 states,

"...State prisoners, however, are also eligible to apply for transfer.  Every state has enacted legislation permitting the to participate in the international transfer program.  As a result each state has established policies and procedures governing their administration of the transfer process.  If a state determines that a state prisoner is an appropriate candidate for transfer and approves their request, the state prisoner's application will be submitted to the federal government for consideration.  Although the federal government approves most applications from state prisoners, it will deny such applications if there is a compelling federal interest or if any of the major statutory or treaty requirements are not satisfied.  The federal government only considers a transfer application from a state prisoner if hte state has approved the request; it is without the authority to compel a state to transfer a state prisoner."

Ohio law, O.R.C. §5120.53(B)(1), provides the eligibility requirements for a person sentenced in any Ohio court requesting transfer of their sentence back to their native country.  O.R.C. §5120.53(B)(1) states, 

"No convicted offender who is serving a term of imprisonment in this state for aggravated murder, murder, or a felony of the first or second degree, who is serving a mandatory prison term imposed under section 2925.03 or 2925.11 of the Revised Code in circumstances in which the court was required to impose as the mandatory prison term the maximum prison term authorized for the degree of offense committed, who is serving a term of imprisonment in this state imposed for an offense committed prior to the effective date of this amendment that was an aggravated felony of the first or second degree or that was aggravated trafficking in violation of division (A)(9) or (10) of section 2925.03 of the Revised Code, or who has been sentenced to death in this state shall be transferred or exchanged to another country pursuant to a treaty of the type described in division (A) of this section."

A expenses that arise in connection with the transfer of the sentenced person are paid by the sentencing country until that person is placed in the custody of the receiving country.

As stated in United States Attorney Manual §731, the United States recognizes the benefit of international prisoner treaties.  Such treaties provide informed monitoring over transferred prisoners that deportation does not.  The transferring country places the prisoner directly into the custody of the prisoner's native country.  This permits the "receiving country to acquire initial control over the prisoner, to monitor the prisoner's activities, to address any treatment or rehabilitative needs of the prisoner, to assist in the eventual reintegration of the prisoner into society, and to take appropriate steps to protect society from the prisoner."

If you have any questions regarding the eligibility of a family member, friend, or someone you know having their sentence transferred to their native country, please contact Michael C. Hennenberg to schedule a consultation.

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