The lure of the United States is such that various types of peoples are attracted to its shores. Among those who come to the country to seek their fortune are many who engage in illegal activities. The result of that behavior is the loss of freedom through incarceration. Prior to incarceration there are multiple considerations that must be examined that will determine the duration of the sentence for persons who have been found guilty. The extent of the overcrowding within the prison system is such that attempts are made to limit the duration of the stay of prisoners. Foreign prisoners present a unique challenge for the sentencing process as international and humanitarian factors may be subsumed into the decision making process.
The considerations for sentencing while engaging multiple statutes it can be divided into two major concerns. These concerns are the duration of the sentence. The length of time the prisoner should spend in any prison should have a correlation with the crime that they have committed. This central issue is not unique to foreign prisoners since all prisoners sentence must be related to the crimes that they have committed. While there is some discretion for the judge to act within the parameters of the law it is possible for the prisoner to receive sentences that are not congruent with the crime they may have committed.
The second issue and possibly the most salient one when it applies to foreign nationals is the question of where the sentence is to be served. The question is not only about the type of prison within the United States such as maximum or minimum security prisons but rather whether the prisoner would serve the sentence in the United States or in their home country. This latter consideration is a major aspect the sentencing program and should be given high priority because it has implications for the ultimate resolution of the matter. It should be noted that foreign nationals who are incarcerated within the U.S. prison system are usually deported after they have served their time within the prison. While deportation is the usual mechanism for resolving the matter it is not without issue. Many of the issues surrounding deportation will be considered later within the paper.
Foreign prisoners who are asked to serve their sentences in U.S. prisons are at a distinct disadvantage when compared to the local population of the prison. The prisoners are often not native English speakers and consequently communication with their lawyers and other officials is limited and difficult. The difficulty begins with simply being unable to adequately provide the details of the crime they have committed or not committed. The mounting of the prisoner's defense is difficult and limited. Additionally, without the aid of translators, who are not often present or available to the lawyers the process is difficult and skewed in favor of the court system.
The court should also be concerned about the fate of the prisoner within the prison system itself. In this environment the prisoner is completely isolated and at greater risk of harm than other prisoners. The absence of any social support and the language barriers that may exist may cause the prisoners life to be at risk. These are considerations that should be given accent to when the matter is brought before the court for its decision. While the question of punishment for the crime is important of equal importance must then be the safety of a foreign national on U.S. soil.
One of the ways to address some of the issues associated with the incarceration of foreign prisoners is the transfer of the prisoner to their home country to serve out the sentence. This approach addresses another important issue that must be considered during the sentencing phase of the trial namely the possibility of social rehabilitation for the prisoner. The transfer of the prisoner back to their local country will facilitate the rehabilitation of the prisoner.
Rehabilitation of the prisoner is a key issue in modern civilized societies (Bassiouni 2008). This goal is best realized by having the prisoner serve out the time in a country where he will have the type of social and other support that will make the prisoners rehabilitation more successful. This rehabilitative goal is clearly expressed in the treaties that the government has signed with various governments. The treaty signed with the Mexican government determines that transfers create a method that furthers the goal of rehabilitating the prisoners. The Canadian treaty speaks eloquently about the need to address the concern of the successful "reintegration into society" (Guidelines 2010). Since rehabilitation is a fundamental goal of incarceration it becomes a significant consideration when considering whether the sentence would be served in the United States or in another country.
The transfer of prisoners to their home country provides a greater opportunity for the rehabilitation of prisoners to occur. This increase rehabilitative potential is possible because the prisoner is closer to aspects of social support such as friends and family. Additionally the prisoner is serving time within his own culture making the later transition to freedom easier and having limited transitional challenges. This feature of the program is very useful because as stated earlier many of the persons who are incarcerated are deported following the serving of their sentence. The transfer of the prisoners to their home country is beneficial to the prisoner as it eliminates the need to make cultural adjustments.
Rehabilitation is a central feature of the sentencing construct and consequently elements that enhance the rehabilitation of the prisoner should be taken into consideration. Some of the considerations that should be observed are the acceptance of responsibility by the prisoner. When the prisoner accepts responsibility for their action this can be considered as a plus for the transfer of the prisoner. Additionally, this suggests that the prisoner has decided to work in harmony with law enforcement, not waste the courts time and provide accurate and total information that may assist in solving other crimes. The entry of a guilty plea can also be considered as a demonstration of the acceptance of responsibility.
The criminal history of the prisoner should also be considered in the sentencing procedures (Douglas 1985). When considering whether the individual is a good candidate for rehabilitation it should be noted whether the prisoners is a low level, minor offender or a career criminal. The career criminal is less likely to be successfully rehabilitated when compared to the low level minor offender. This could be demonstrated when considering a drug mule who may have received money to transport drugs into the United States as opposed to a drug lord. The drug mule may be sent back to their country to serve their sentence but the drug lord may be held in the United States.
In the case of drug lord the problem of community ties and the control of local political leaders may constitute a negative that will militate against them serving their sentence in their local country. Many drug lords have deep pockets so that they can purchase justice or freedom in their home countries (Hoffman 1992). Additionally, they may have the control of small armies who may be inclined to free them from the prisons where they are held. Under such conditions it would not be prudent to have them serve their sentence in the United States.
The seriousness of the offense is another factor that should be employed when determining the sentence of an offender (Guidelines 2010). If the offense is very serious sending the prisoner to their home country may reduce the effectiveness of the rehabilitative process. The prisoner's home country may want to provide a sentence that is different in terms of the length of the sentence. It is also possible that having the sentence carried out…