DUE PROCESS METHODOLOGY AND PRISONER EXCHANGE TREATIES CONFRONTING AN UNCERTAIN CALCULUS

• NCJ Number: 53175
• Journal: Minnesota Law Review Volume: 62 Issue: 5 Dated: (JUNE 1978) Pages: 733-812
• Author(s): I P STOTZKY; A C SWAN
• Date Published: 1978
• Length: 74 pages
• Corporate Author: University of Minnesota Law School
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE IMPACT OF JURISDICTIONAL AND DUE PROCESS CONCERNS ON THE PRISONER EXCHANGE TREATIES NEGOTIATED BETWEEN THE U.S. AND CANADA AND MEXICO IS ASSESSED.

Abstract

IN LATE 1976 AND EARLY 1977, THE U.S. SIGNED TREATIES, FIRST WITH MEXICO AND THEN WITH CANADA, PROVIDING FOR THE MUTUAL EXECUTION OF PENAL SENTENCES. UNDER THE TREATIES, CITIZENS OF ONE STATE CONVICTED OF CRIMES IN ANOTHER MAY CONSENT TO BE RETURNED TO THEIR OWN COUNTRIES TO SERVE OUT THEIR SENTENCES. ALTHOUGH THE PRISONER BECOMES ELIGIBLE FOR PAROLE OR OTHER TERM REDUCTIONS ACCORDING TO THE LAWS OF THE RECEIVING STATE, THE COURTS OF THAT STATE ARE PRECLUDED FROM ENTERTAINING ANY PROCEEDING INTENDED TO CHALLENGE, SET ASIDE, OR OTHERWISE MODIFY CONVICTIONS OR SENTENCES HANDED DOWN IN THE SENDING STATE. WHILE THE CANADIAN TREATY APPEARS INTENDED TO AID IN REHABILITATION, PAROLEE SUPERVISION, AND LAW ENFORCEMENT, THE MEXICAN TREATY IS PRINCIPALLY A RESPONSE TO POPULAR AND CONGRESSIONAL CONCERN OVER CHARGES OF INTOLERABLE LIVING CONDITIONS, BRUTALITY, AND EXTORTION WITHIN MEXICAN JAILS AND VIOLATIONS OF BOTH U.S. AND MEXICAN LAW IN OBTAINING CONFESSIONS AND CONVICTIONS. AGAINST THIS BACKGROUND THE TREATIES POSE TWO BROAD CONSTITUTIONAL QUESTIONS: (1) ASSUMING THAT THE FOREIGN CONVICTION WAS OBTAINED IN A MANNER INCONSISTENT WITH THE U.S. CONSTITUTION, DOES THE REQUIREMENT THAT RETURNED PRISONERS SERVE OUT THEIR FOREIGN SENTENCES IN AMERICAN JAILS VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT?; AND (2) CAN AMERICAN COURTS BE FORECLOSED CONSTITUTIONALLY FROM JUDGING THAT QUESTION? IN THE FIRST PART OF THE ARTICLE, THE JURISDICTIONAL QUESTION IS EXAMINED, WITH SPECIAL ATTENTION TO THE JURISPRUDENTIAL UNDERPINNINGS OF DUE PROCESS. IN THE FOLLOWING SECTIONS, THE URGENCY AND WEIGHT OF THE DUE PROCESS CLAIMS RETURNED PRISONERS WILL PROBABLY RAISE ARE ASSESSED, ALONG WITH THE COUNTERVAILING INTERESTS. FINALLY, THE RESOLUTION OF THE PRISONER CLAIMS/GOVERNMENT CLAIMS CONFLICT IS UNDERTAKEN WITH A RETURN TO THE CRITICAL ISSUE COMMON TO BOTH THE JURISDICTIONAL AND DUE PROCESS QUESTIONS: THE CONFLICT BETWEEN THE INTERESTS OF THOSE PRISONERS WHO HAVE BEEN RETURNED TO THE U.S. AND THOSE WHO REMAIN IN FOREIGN PRISONS. JUDICIAL DECISIONS AND OTHER REFERENCES ARE FOOTNOTED. (KBL)