18 U.S.C. § 4100 — Scope and limitation of chapter

Page 906 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 4083 Subsec. (f). Pub. L. 89–176 added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–473 effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98–473, set out as an Effective Date note under section 3551 of this title. § 4083. Penitentiary imprisonment; consent Persons convicted of offenses against the United States or by courts-martial punishable by imprisonment for more than one year may be confined in any United States penitentiary. A sentence for an offense punishable by im- prisonment for one year or less shall not be served in a penitentiary without the consent of the defendant. (June 25, 1948, ch. 645, 62 Stat. 850; Pub. L. 86–256, Sept. 14, 1959, 73 Stat. 518.) HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., §§ 753f, 762 (Mar. 2, 1895, ch. 189, § 1, 28 Stat. 957; June 10, 1896, ch. 400, § 1, 29 Stat. 380; May 14, 1930, ch. 274, § 7, 46 Stat. 326; June 14, 1941, ch. 204, 55 Stat. 252; Oct. 21, 1941, ch. 453, 55 Stat. 743). Said section 762 was condensed and simplified and ex- tended to all penitentiaries instead of to Leavenworth only, since the section is merely declaratory of existing law. (See section 1 of this title classifying offenses and notes thereunder.) The second paragraph is derived from said section 753f of title 18, U.S.C., 1940 ed. Minor changes of phraseology were made. Editorial Notes AMENDMENTS 1959—Pub. L. 86–256 substituted ‘‘punishable by im- prisonment for’’ for ‘‘and sentenced to terms of impris- onment of’’ in first sentence. [§§ 4084, 4085. Repealed. Pub. L. 98–473, title II, § 218(a)(3), Oct. 12, 1984, 98 Stat. 2027] Section 4084, act June 25, 1948, ch. 645, 62 Stat. 850, re- lated to delivery of prisoner with copy of commitment. Section 4085, act June 25, 1948, ch. 645, 62 Stat. 850, re- lated to authority, expense, etc., respecting transfer of Federal prisoner for State offense. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such re- peal, see section 235(a)(1) of Pub. L. 98–473, set out as an Effective Date note under section 3551 of this title. § 4086. Temporary safe-keeping of federal offend- ers by marshals United States marshals shall provide for the safe-keeping of any person arrested, or held under authority of any enactment of Congress pending commitment to an institution. (June 25, 1948, ch. 645, 62 Stat. 851.) HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., §§ 691, 692, (R.S. §§ 5537, 5538). Said section 691 of title 18, U.S.C., 1940 ed., is super- seded by sections 753b and 753c of title 18, U.S.C., 1940 ed., which are incorporated in sections 4002, 4003 and 4042 of this title. This section is rewritten to retain the intent of sec- tion 692 of title 18, U.S.C., 1940 ed., which was to insure a safekeeping of United States prisoners until their commitment or confinement in Federal penal institu- tions. The language conforms with that of said sections 692 and 753b. Minor changes were made in phraseology. CHAPTER 306—TRANSFER TO OR FROM FOREIGN COUNTRIES Sec. 4100. Scope and limitation of chapter. 4101. Definitions. 4102. Authority of the Attorney General. 4103. Applicability of United States laws. 4104. Transfer of offenders on probation. 4105. Transfer of offenders serving sentence of im- prisonment. 4106. Transfer of offenders on parole; parole of of- fenders transferred. 4106A. Transfer of offenders on parole; parole of of- fenders transferred. 4107. Verification of consent of offender to transfer from the United States. 4108. Verification of consent of offender to transfer to the United States. 4109. Right to counsel, appointment of counsel. 4110. Transfer of juveniles. 4111. Prosecution barred by foreign conviction. 4112. Loss of rights, disqualification. 4113. Status of alien offender transferred to a for- eign country. 4114. Return of transferred offenders. 4115. Execution of sentences imposing an obliga- tion to make restitution or reparations. Editorial Notes AMENDMENTS 1988—Pub. L. 100–690, title VII, § 7101(c), Nov. 18, 1988, 102 Stat. 4415, added item 4106A. § 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 pursu- ant to such a treaty. A sentence imposed by a foreign country upon an offender who is subse- quently transferred to the United States pursu- ant to a treaty shall be subject to being fully ex- ecuted 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 na- tional. Only an offender who is a citizen or na- tional of the United States may be transferred to the United States. An offender may be trans- ferred 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 Page 907 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 4100 transfer, the transfer shall not be accomplished unless consent to the transfer be given by a par- ent or guardian, guardian ad litem, or by an ap- propriate 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 convic- tion 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 revoca- tion of the sentence shall give the offender the benefit of the action taken by the sentencing country. (Added Pub. L. 95–144, § 1, Oct. 28, 1977, 91 Stat. 1212; amended Pub. L. 100–690, title VII, § 7101(e), Nov. 18, 1988, 102 Stat. 4416.) Editorial Notes AMENDMENTS 1988—Subsec. (b). Pub. L. 100–690 inserted ‘‘, or is deemed by the verifying officer to be mentally incom- petent or otherwise incapable of knowingly and volun- tarily consenting to the transfer,’’ after ‘‘under eight- een years of age’’, ‘‘, guardian ad litem,’’ after ‘‘guard- ian’’, and ‘‘The appointment of a guardian ad litem shall be independent of the appointment of counsel under section 4109 of this title.’’ Statutory Notes and Related Subsidiaries AUTHORIZATION OF APPROPRIATIONS Pub. L. 95–144, § 5(a), Oct. 28, 1977, 91 Stat. 1221, pro- vided 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, Judici- ary 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, § 330, Sept. 30, 1996, 110 Stat. 3009–631, provided that: ‘‘(a) NEGOTIATIONS WITH OTHER COUNTRIES.—(1) Con- gress advises the President to begin to negotiate and renegotiate, not later than 90 days after the date of en- actment 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 of- fense 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 subpara- graph (B). Any such agreement may provide for the re- lease of such alien pursuant to parole procedures of that country. ‘‘(2) In entering into negotiations under paragraph (1), the President may consider providing for appro- priate compensation, subject to the availability of ap- propriations, 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 Con- gress 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) in- carcerated 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] sen- tences; ‘‘(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 fa- cilities to a foreign incarceration facility should per- mit 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 in- carceration facility under an agreement of the type re- ferred 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 pre- ceding 12 months in bringing about the return of de- portable 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 PER- SONNEL.—(1) Subject to paragraph (2), the President shall direct the Border Patrol Academy and the Cus- toms Service Academy to enroll for training an appro- priate number of foreign law enforcement personnel, and shall make appointments of foreign law enforce- ment personnel to such academies, as necessary to fur- ther 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 il- legal 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 Cus- toms 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 nec- essary to carry out this section.’’ Page 908 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 4101 [For transfer of functions, personnel, assets, and li- abilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Sec- retary of Homeland Security, and for treatment of re- lated 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 Novem- ber 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Se- curity, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended gen- erally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6.] § 4101. Definitions As used in this chapter the term— (a) ‘‘double criminality’’ means that at the time of transfer of an offender the offense for which he has been sentenced is still an offense in the transferring country and is also an of- fense in the receiving country. With regard to a country which has a federal form of govern- ment, an act shall be deemed to be an offense in that country if it is an offense under the federal laws or the laws of any state or prov- ince thereof; (b) ‘‘imprisonment’’ means a penalty im- posed by a court under which the individual is confined to an institution; (c) ‘‘juvenile’’ means— (1) a person who is under eighteen years of age; or (2) for the purpose of proceedings and dis- position under chapter 403 of this title be- cause of an act of juvenile delinquency, a person who is under twenty-one years of age; (d) ‘‘juvenile delinquency’’ means— (1) a violation of the laws of the United States or a State thereof or of a foreign country committed by a juvenile which would have been a crime if committed by an adult; or (2) noncriminal acts committed by a juve- nile for which supervision or treatment by juvenile authorities of the United States, a State thereof, or of the foreign country con- cerned is authorized; (e) ‘‘offender’’ means a person who has been convicted of an offense or who has been ad- judged to have committed an act of juvenile delinquency; (f) ‘‘parole’’ means any form of release of an offender from imprisonment to the community by a releasing authority prior to the expira- tion of his sentence, subject to conditions im- posed by the releasing authority and to its su- pervision, including a term of supervised re- lease pursuant to section 3583; (g) ‘‘probation’’ means any form of a sen- tence under which the offender is permitted to remain at liberty under supervision and sub- ject to conditions for the breach of which a penalty of imprisonment may be ordered exe- cuted; (h) ‘‘sentence’’ means not only the penalty imposed but also the judgment of conviction in a criminal case or a judgment of acquittal in the same proceeding, or the adjudication of delinquency in a juvenile delinquency pro- ceeding or dismissal of allegations of delin- quency in the same proceedings; (i) ‘‘State’’ means any State of the United States, the District of Columbia, the Common- wealth of Puerto Rico, and any territory or possession of the United States; (j) ‘‘transfer’’ means a transfer of an indi- vidual for the purpose of the execution in one country of a sentence imposed by the courts of another country; and (k) ‘‘treaty’’ means a treaty under which an offender sentenced in the courts of one coun- try may be transferred to the country of which he is a citizen or national for the purpose of serving the sentence. (Added Pub. L. 95–144, § 1, Oct. 28, 1977, 91 Stat. 1213; amended Pub. L. 98–473, title II, § 223(m)(1), Oct. 12, 1984, 98 Stat. 2029.) Editorial Notes AMENDMENTS 1984—Subsec. (f). Pub. L. 98–473 inserted ‘‘including a term of supervised release pursuant to section 3583’’ after ‘‘supervision’’. Subsec. (g). Pub. L. 98–473 substituted ‘‘under which’’ for ‘‘to a penalty of imprisonment the execution of which is suspended’’ and ‘‘a’’ for ‘‘the suspended’’ be- fore ‘‘penalty’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–473 effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such amendment, see section 235(a)(1) of Pub. L. 98–473, set out as an Effective Date note under section 3551 of this title. § 4102. Authority of the Attorney General The Attorney General is authorized— (1) to act on behalf of the United States as the authority referred to in a treaty; (2) to receive custody of offenders under a sentence of imprisonment, on parole, or on probation who are citizens or nationals of the United States transferred from foreign coun- tries and as appropriate confine them in penal or correctional institutions, or assign them to the parole or probation authorities for super- vision; (3) to transfer offenders under a sentence of imprisonment, on parole, or on probation to the foreign countries of which they are citi- zens or nationals; (4) to make regulations for the proper imple- mentation of such treaties in accordance with this chapter and to make regulations to imple- ment this chapter; (5) to render to foreign countries and to re- ceive from them the certifications and reports required to be made under such treaties; (6) to make arrangements by agreement with the States for the transfer of offenders in their custody who are citizens or nationals of foreign countries to the foreign countries of which they are citizens or nationals and for the confinement, where appropriate, in State institutions of offenders transferred to the United States; (7) to make agreements and establish regula- tions for the transportation through the terri-