§ 4100. — Scope and limitation of chapter.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC4100]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART III--PRISONS AND PRISONERS
CHAPTER 306--TRANSFER TO OR FROM FOREIGN COUNTRIES
Sec. 4100. Scope and limitation of chapter
(a) The provisions of this chapter relating to the transfer of
offenders shall be applicable only when a treaty providing for such a
transfer is in force, and shall only be applicable to transfers of
offenders to and from a foreign country pursuant to such a treaty. A
sentence imposed by a foreign country upon an offender who is
subsequently transferred to the United States pursuant to a treaty shall
be subject to being fully executed in the United States even though the
treaty under which the offender was transferred is no longer in force.
(b) An offender may be transferred from the United States pursuant
to this chapter only to a country of which the offender is a citizen or
national. Only an offender who is a citizen or national of the United
States may be transferred to the United States. An offender may be
transferred to or from the United States only with the offender's
consent, and only if the offense for which the offender was sentenced
satisfies the requirement of double criminality as defined in this
chapter. Once an offender's consent to transfer has been verified by a
verifying officer, that consent shall be irrevocable. If at the time of
transfer the offender is under eighteen years of age, or is deemed by
the verifying officer to be mentally incompetent or otherwise incapable
of knowingly and voluntarily consenting to the transfer, the transfer
shall not be accomplished unless consent to the transfer be given by a
parent or guardian, guardian ad litem, or by an appropriate court of the
sentencing country. The appointment of a guardian ad litem shall be
independent of the appointment of counsel under section 4109 of this
title.
(c) An offender shall not be transferred to or from the United
States if a proceeding by way of appeal or of collateral attack upon the
conviction or sentence be pending.
(d) The United States upon receiving notice from the country which
imposed the sentence that the offender has been granted a pardon,
commutation, or amnesty, or that there has been an ameliorating
modification or a revocation of the sentence shall give the offender the
benefit of the action taken by the sentencing country.
(Added Pub. L. 95-144, Sec. 1, Oct. 28, 1977, 91 Stat. 1212; amended
Pub. L. 100-690, title VII, Sec. 7101(e), Nov. 18, 1988, 102 Stat.
4416.)
Amendments
1988--Subsec. (b). Pub. L. 100-690 inserted ``, or is deemed by the
verifying officer to be mentally incompetent or otherwise incapable of
knowingly and voluntarily consenting to the transfer,'' after ``under
eighteen years of age'', ``, guardian ad litem,'' after ``guardian'',
and ``The appointment of a guardian ad litem shall be independent of the
appointment of counsel under section 4109 of this title.''
Authorization of Appropriations
Section 5(a) of Pub. L. 95-144 provided that: ``There is authorized
to be appropriated such funds as may be required to carry out the
purposes of this Act [which enacted this chapter and sections 955 of
Title 10, Armed Forces, and 2256 of Title 28, Judiciary and Judicial
Procedure, amended section 636 of Title 28, and enacted provisions set
out as notes under sections 3006A, 4100, and 4102 of this title]''.
Prisoner Transfer Treaties
Pub. L. 104-208, div. C, title III, Sec. 330, Sept. 30, 1996, 110
Stat. 3009-631, provided that:
``(a) Negotiations With Other Countries.--(1) Congress advises the
President to begin to negotiate and renegotiate, not later than 90 days
after the date of enactment of this Act [Sept. 30, 1996], bilateral
prisoner transfer treaties, providing for the incarceration, in the
country of the alien's nationality, of any alien who--
``(A) is a national of a country that is party to such a treaty;
and
``(B) has been convicted of a criminal offense under Federal or
State law and who--
``(i) is not in lawful immigration status in the United
States, or
``(ii) on the basis of conviction for a criminal offense
under Federal or State law, or on any other basis, is subject to
deportation or removal under the Immigration and Nationality Act
[8 U.S.C. 1101 et seq.],
for the duration of the prison term to which the alien was sentenced for
the offense referred to in subparagraph (B). Any such agreement may
provide for the release of such alien pursuant to parole procedures of
that country.
``(2) In entering into negotiations under paragraph (1), the
President may consider providing for appropriate compensation, subject
to the availability of appropriations, in cases where the United States
is able to independently verify the adequacy of the sites where aliens
will be imprisoned and the length of time the alien is actually
incarcerated in the foreign country under such a treaty.
``(b) Sense of Congress.--It is the sense of the Congress that--
``(1) the focus of negotiations for such agreements should be--
``(A) to expedite the transfer of aliens unlawfully in the
United States who are (or are about to be) incarcerated in
United States prisons,
``(B) to ensure that a transferred prisoner serves the
balance of the sentence imposed by the United States courts,
``(C) to eliminate any requirement of prisoner consent to
such a transfer, and
``(D) to allow the Federal Government or the States to keep
their original prison sentences in force so that transferred
prisoners who return to the United States prior to the
completion of their original United States sentences can be
returned to custody for the balance of their prisons [sic]
sentences;
``(2) the Secretary of State should give priority to concluding
an agreement with any country for which the President determines
that the number of aliens described in subsection (a) who are
nationals of that country in the United States represents a
significant percentage of all such aliens in the United States; and
``(3) no new treaty providing for the transfer of aliens from
Federal, State, or local incarceration facilities to a foreign
incarceration facility should permit the alien to refuse the
transfer.
``(c) Prisoner Consent.--Notwithstanding any other provision of law,
except as required by treaty, the transfer of an alien from a Federal,
State, or local incarceration facility under an agreement of the type
referred to in subsection (a) shall not require consent of the alien.
``(d) Annual Report.--Not later than 90 days after the date of the
enactment of this Act [Sept. 30, 1996], and annually thereafter, the
Attorney General shall submit a report to the Committees on the
Judiciary of the House of Representatives and of the Senate stating
whether each prisoner transfer treaty to which the United States is a
party has been effective in the preceding 12 months in bringing about
the return of deportable incarcerated aliens to the country of which
they are nationals and in ensuring that they serve the balance of their
sentences.
``(e) Training Foreign Law Enforcement Personnel.--(1) Subject to
paragraph (2), the President shall direct the Border Patrol Academy and
the Customs Service Academy to enroll for training an appropriate number
of foreign law enforcement personnel, and shall make appointments of
foreign law enforcement personnel to such academies, as necessary to
further the following United States law enforcement goals:
``(A) Preventing of drug smuggling and other cross-border
criminal activity.
``(B) Preventing illegal immigration.
``(C) Preventing the illegal entry of goods into the United
States (including goods the sale of which is illegal in the United
States, the entry of which would cause a quota to be exceeded, or
the appropriate duty or tariff for which has not been paid).
``(2) The appointments described in paragraph (1) shall be made only
to the extent there is capacity in such academies beyond what is
required to train United States citizens needed in the Border Patrol and
Customs Service, and only of personnel from a country with which the
prisoner transfer treaty has been stated to be effective in the most
recent report referred to in subsection (d).
``(f) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this section.''
[For transfer of functions, personnel, assets, and liabilities of
the United States Customs Service of the Department of the Treasury,
including functions of the Secretary of the Treasury relating thereto,
to the Secretary of Homeland Security, and for treatment of related
references, see sections 203(1), 551(d), 552(d), and 557 of Title 6,
Domestic Security, and the Department of Homeland Security
Reorganization Plan of November 25, 2002, as modified, set out as a note
under section 542 of Title 6.]
Section Referred to in Other Sections
This section is referred to in section 4109 of this title.
