Criminal Prosecutions of U.S. Citizens Abroad: A Brief Overview
In rare circumstances, United States citizens are the victims, or even the perpetrators, of crimes in foreign nations. It is a basic premise—one that some Americans overlook—that while in a foreign county an American citizen is subject to that country’s laws, which in some cases can carry far harsher penalties that similar violations in the U.S. When charged with a crime in a foreign country, a U.S. citizen must go through that country’s criminal justice system and—as memorably attested to by films such as Midnight Express, Return to Paradise, Brokedown Palace and the National Geographic Channel’s series Locked Up Abroad—stay in that country’s prisons, sometimes under far worse conditions than American prisons.
The United States Department of State protects the rights of American citizens abroad, provides a wide array of service to citizens who are detained abroad, works to ensure that citizens are afforded due process under local laws and are treated consistent with internationally recognized standards of human rights, and monitors conditions in foreign prisons. When a U.S. citizen is convicted of a crime in a foreign country, he or she, in some cases, may apply to be transferred to the United States to serve out the remainder of his or her foreign sentence if the foreign country has a “prisoner transfer treaty” with the U.S. See 18 U.S.C. § 4100 et seq. (In contrast, prosecutors who wish to prosecute individuals located in a foreign country utilize “mutual legal assistance treaties,” which the U.S. currently possesses with over 50 other nations, including the European Union as a whole). The U.S. is a party to two multilateral prisoner transfer treaties, the Council of Europe Convention on the Transfer of Sentenced Persons, or COE Convention, and the Inter-American Convention on Serving Criminal Sentences Abroad, or OAS Convention, and, in addition, has bilateral prisoner transfer treaties in effect with approximately thirteen countries.
A U.S. citizen imprisoned in a foreign nation begins the transfer process by notifying the United States embassy in the foreign country that he or she wishes to be transferred pursuant to the relevant prisoner transfer treaty. The United States Department of Justice, the foreign government and the prisoner must all consent to the transfer. A United States magistrate judge must hold a “consent verification hearing” in the foreign country prior to any transfer, at which the prisoner must consent to the transfer. If all required consent for the transfer is obtained, United States Bureau of Prisons officials travel to the country to take the prisoner into custody.
However, a prisoner is not eligible for a transfer until the judgment and sentence in the foreign criminal proceeding are final and no appeals or collateral attacks are pending. In addition, some treaties require that any fines be paid prior to any transfer. Most seriously for Americans convicted of crimes in foreign countries, 18 U.S.C. § 3244 provides that such individuals have no right to appeal, modify, set aside, or otherwise challenge their foreign convictions. However, a Parole Commission will hold a hearing to determine the appropriate length of imprisonment to be served by the transferee in the U.S., and the length and conditions of any supervised release.
In all, the U.S. is a party to prisoner transfer treaties with over 70 other countries. However, many countries are not a party to any prisoner transfer treaty with the U.S., including, for the traveler’s information: Afghanistan, Algeria, Angola, Antigua and Barbuda, Argentina, Bahrain, Bangladesh, Barbados, Belarus, Republic of Belarus, Benin, Republic of Benin, Bhutan, Kingdom of Bhutan, Botswana, Brunei, Burkina Faso, Burma, Burundi, Republic of Burundi, Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, China (except for the Hong Kong Special Administrative Region), Colombia, Comoros, Congo, Côte d'Ivoire, Cuba, Djibouti, Dominica, Dominican Republic, East Timor, Egypt, El Salvador, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gabon, Gambia, The, Ghana, Grenada, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, India, Indonesia, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kenya, Kiribati, North Korea, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Lesotho, Liberia, Libya, Madagascar, Malawi, Malaysia, Maldives, Mali, Mauritania, Monaco, Mongolia, Morocco, Mozambique, Namibia, Nauru, Nepal, New Zealand, Niger, Nigeria, Oman, Pakistan, Papua New Guinea, Philippines, Qatar, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, São Tomé and Príncipe, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Singapore, Solomon Islands, Somalia, South Africa, Sri Lanka, Sudan, Suriname, Swaziland, Syria, Taiwan, Tajikistan, Tanzania, Togo, Tunisia, Turkmenistan, Tuvalu, Uganda, United Arab Emirates, Uruguay, Uzbekistan, Vanuatu, Vatican City, Vietnam, Western Sahara, Yemen, Zambia and Zimbabwe.