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Vanderbilt Journal of Transnational Law

First Page

449

Abstract

This Article discusses the viability of United States Transfer of Penal Sanctions Treaties, focusing primarily on the Mexican-United States Treaty. The author argues that these treaties are effective and enforceable, but have been undermined by resort to unilateral abductions by the United States.

Part I of the Article examines the history and rationales leading to the promulgation of various penal sanctions treaties. The United States has entered these treaties largely because of the rising number of United States citizens incarcerated abroad, because of the substandard treatment afforded such prisoners, and because of the idea that offenders' rehabilitation will be eased if they are in their home states during incarceration.

Part II examines the actual treaties and their effects. The author discusses several relevant provisions of the treaties, including those concerning the offender, the crime committed, and the required procedures to complete a transfer. Specific procedural requirements must be met regarding consent, notification, initiation, and location. The author also reviews guidelines for post-transfer procedures and treatment of the transferee.

Part III addresses the continued use of abductions abroad by the United States. The author suggests that the reason for the increased use of extraterritorial apprehensions is the failure of the extradition process amid pervasive concern over problems such as drug trafficking and terrorism. While reviewing United States judicial decisions concerning these abductions, the author emphasizes that the focus should not be on these decisions, but on the tendency that these abductions will have towards undermining cooperative international relations.

Part IV addresses various concerns arising under Transfer of Penal Sanctions Treaties and suggests practical ways to refine these treaties to improve their effectiveness. The problems the author addresses include the potential for use of the treaties to evade constitutional requirements, the effect of the federal sentencing guidelines on parole under the treaties, and the increased use of passive personality jurisdiction to prosecute crimes against nationals.

The author concludes by stating that the Transfer of Penal Sanctions Treaties can and do work. Continued unilateral abductions by the United States, however, will harm both the general level of international cooperation and the individual United States citizens imprisoned abroad.

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