Bureau Of Prisons’ Treaty Transfer Could Reduce Prison Population

How Treaty Transfer Works

The process generally begins inside the prison.

A foreign-national inmate asks BOP to apply for transfer. BOP assembles the required documents and, if the inmate meets the threshold requirements, forwards the application to the Department of Justice’s International Prisoner Transfer Unit (IPTU) within the Office of International Affairs.

DOJ then decides whether the United States should approve the transfer. If it does, the prisoner’s home country must also agree to accept him/her. The prisoner must consent, and that consent is formally verified before the transfer occurs.

Once custody is transferred, the receiving country administers the remaining sentence under the applicable treaty and its own laws. This is decidedly different from simply deporting someone at the end of a federal sentence after they have been turned over to Immigration and Customs Enforcement (ICE).

A Treaty Transfer sends someone home as a prisoner who still has a sentence to serve, and the sentence is completed in that country.

The Financial Argument

Keeping someone in federal prison is expensive.

BOP’s latest published Cost of Incarceration Fee, based on FY2024 data, puts the average cost at $47,162 per inmate per year, or $129.21 per day.

At that average cost, 1,000 additional prisoners remaining in federal custody for five years represents approximately $236 million in gross incarceration costs. That doesn’t mean transferring 1,000 inmates would immediately cut BOP’s appropriation by $236 million. Prisons have substantial fixed costs.

But sufficiently large reductions affect food, healthcare, staffing, transportation, programming and ultimately the number of beds and institutions BOP needs to operate. And foreign nationals facing removal present a particularly interesting correctional issue.

Many cannot transition through the same prerelease custody available to other federal prisoners. BOP policy, for example, provides that a deportable inmate who cannot participate in the Residential Drug Abuse Program’s (RDAP) community-based transitional component because he is ineligible for Residential Reentry Center placement can be unqualified for RDAP. This is also true of prerelease custody (halfway house / home confinement), which US citizen inmates can be in for the final year of their incarceration.

With that, the government can find itself paying to keep a foreign national in a more restrictive correctional environment while limiting rehabilitative programs designed to transition prisoners back into American society, even though that individual may ultimately be removed from the country.

Treaty Transfer offers a pragmatic approach to begin the prisoner’s reintegration into the society where he will live. It should be noted that the BOP attempts to house US citizen inmates within 500 miles of their residence prior to prison. That is not even a consideration for non-US citizens, who can be held at any BOP facility across the country.

A Former Head Of The Program Raised The Alarm

The criticism that America underuses Treaty Transfer is not new.

In 2009, Sylvia Royce, who served as chief of DOJ’s international prisoner transfer program from 1995 to 2000, published an article in the Federal Sentencing Reporter asking why so few prisoners were being transferred.

Royce argued that transfer had benefits beyond saving money. Prisoners could serve their sentences closer to their families and within their home cultures. More importantly, the receiving country’s correctional system would have a formal record of the conviction and could administer the remaining sentence and eventually make its own decisions concerning treatment, parole and supervision.

She also reported frustration among America’s treaty partners. Their argument was straightforward: many of these prisoners would eventually be deported home anyway. Why require the United States to incarcerate them for years first, while their families struggle to visit them and foreign consulates minister to nationals thousands of miles away?

Royce was equally frustrated with the bureaucracy.

She described delays in assembling applications inside BOP, delays obtaining responses from prosecutors and law-enforcement agencies, and a DOJ decision-making process that she characterized as “opaque.” Denial letters sometimes provided prisoners and foreign governments with little meaningful explanation of what had gone wrong.

At the time, Royce reported that approximately 60% of applications were denied. Common reasons included U.S. domicile or ties, seriousness of the offense, possible future need for testimony and unpaid restitution.

Her conclusion was that she believed a determined transfer effort could potentially repatriate approximately 4% to 10% of the federal prison population as it then existed. That is a 2009 estimate and should not be applied directly to today’s population, but it demonstrates how much greater she believed the program’s potential was than its actual use.

I reached out to attorney Lisa Figueroa who has helped clients navigate the return to their country. Figueroa told me, “Based on my experience advocating for a client through this process, I believe the treaty-transfer system must be revisited. It is a powerful yet underutilized tool that could help reduce prison populations, lessen the financial burden on American taxpayers, and allow eligible individuals to serve their sentences in their home countries.” She also noted that the number of inquiries into the Treaty Transfer process have increased dramatically over the past few months. “Many people are just looking to be closer to family to finish their prison term,” Figueroa said.

Then DOJ’s Inspector General Reached Similar Conclusions

Six years later, many of Royce’s concerns remained.

DOJ’s Office of Inspector General reported in 2015 that more than 40,000 inmates from treaty-transfer countries had been in BOP custody in FY2010, yet less than 1% ultimately transferred home.

The government subsequently made improvements, and far more inmates expressed interest. Between FY2010 and FY2013, inmate transfer requests increased 72%, from 14,020 to 24,122. However, in FY2013, despite those requests, BOP forwarded only 1,422 applications to IPTU and just 494 were approved.

Not all the other prisoners should have been transferred. Many were legally or treaty-ineligible. But the disparity was large enough that the Inspector General concluded DOJ was “not fully utilizing the transfer authority Congress gave it.”

The actual transfer numbers reinforced that conclusion. From FY2005 through FY2010, an average of 238 foreign nationals were transferred annually. From FY2011 through FY2013, the average declined to 227 per year.

The OIG also identified a particularly expensive form of delay. Between FY2011 and FY2013, taxpayers incurred approximately $26 million in incarceration costs for 959 prisoners whose transfers the United States had already approved but who remained in BOP custody while awaiting action by their home countries or for other reasons.

There Are Legitimate Reasons Transfers Don’t Happen

None of this means every foreign national in federal prison can, or should be, transferred.

Some come from countries without an applicable treaty. Treaties themselves impose eligibility requirements. National-security, law-enforcement and unresolved litigation concerns can justify retaining prisoners. Some inmates don’t want to go home. And critically, the receiving country must agree.

A foreign government can refuse to accept its citizen or take so long to decide that the remaining sentence becomes too short to make transfer practical.

Problem We Have Known About For Decades

Congress was raising concerns about international prisoner transfers as early as the 1990s. The 1996 immigration legislation required the Attorney General to report annually on whether the treaties were effectively returning deportable incarcerated foreign nationals to their countries to complete their sentences.

Congress first raised concerns in the 1990s. A former chief of the program sounded the alarm in 2009. DOJ’s Inspector General identified deficiencies and later concluded the Department still wasn’t fully utilizing its transfer authority. However, actual transfers continued to remain extremely low compared to the number of non-U.S. citizens in federal prison.

BOP is under tremendous pressure to manage more than 150,000 prisoners while recruiting correctional officers, maintaining aging facilities and providing healthcare and programming within a constrained budget.

There are not many ways to reduce those pressures without changing criminal sentences. Treaty Transfer is different. For an appropriate foreign-national prisoner, the conviction remains. The sentence remains. The punishment continues.

But the prisoner’s home country assumes responsibility for carrying it out. And when that person is ultimately released, he is released there rather than into an American community.

Nearly 50 years after the United States began using prisoner-transfer treaties, and decades after Congress, a former program chief and DOJ’s own Inspector General questioned how little they were being used, the question is why is this not a priority?