Overseas Prisons

[Bob Sheridan]

Believe we have an exchange-of-prisoners agreement with Mexico, such 
that Mexican nationals convicted and sentenced to imprisonment here can 
be allowed to serve their time in their native country, and vice versa 
because conditions are better, in the eye of the beholder, at least.  
Presumably this is constitutional; it certainly seems to be convenient 
all the way around.  Don't know whether we send other imprisoned 
nationals home, but suspect we sometimes do for one reason or another if 
the executive department relents and presumably the judiciary signs a 
decree cooperating.  Then there are prisoner exchanges such as Soviet 
Col. Rudolf Abel, master-spy caught in N.Y., exchanged for Francis Gary 
Powers of U-2 fame in the early '60s.

So long as it's not considered cruel and unusual, my guess is that some 
other doctrine, such as war powers and foreign affairs, is apt to govern.

rs

Jonathan Miller wrote:
> I am surprised.  My knee-jerk reaction was that a foreign prison would 
> have to constitute cruel and unusual punishment.  We certainly have no 
> tradition of forced exile as a punishment -- making sending someone 
> involuntariy to a foreign prison "unusual".  And given that the U.S. 
> has no sovereign authority in the foreign country, the prisoner would 
> lack constitutional guarantees that his rights would be respected.  
> Unlike the situation of a private prison in the U.S., the foreign 
> country cannot be made to comply with a U.S. court order. -- All of 
> this aside from the problem of distance making visits difficult, 
> something that has sometimes been found problematic by the courts, 
> though usually not.
>
> Jonathan Miller
> Southwestern Law School
>
> Bob Sheridan wrote:
>
>> Or why not on the Moon, once we get our moon program back in gear; or 
>> Mars, since we have robot vehicles there.
>>
>> My guess is that there is either no restraint on Congress, the 
>> Courts, or the Executive in sending prisoners away (Britain 
>> transported theirs to Australia), OR, alternatively, the founders 
>> presumed that they were writing for this country, not some other 
>> world.  I do note that we have two non-contiguous states, which, it 
>> seems, eliminates arguments based on non-contiguity alone.
>>
>> Perhaps if transportation is deemed to be cruel and unusual we'll 
>> have to take them back...
>>
>> rs
>>
>> John Parry wrote:
>>
>>> As a matter of federal constitutional law, what stops the federal 
>>> government from outsourcing prisons to other countries?  That is, if 
>>> the federal government decided it would be cheaper to house 
>>> prisoners (citizens or not) in Canada, or China, or Chile, would 
>>> anything in the Constitution prevent that move?
>>>  
>>> Assume, also, that Congress designates the federal district court in 
>>> the district in which the prisoner was tried as the place in which 
>>> any habeas or 1983 claims could be filed by the prisoner, and that 
>>> prisoners would be returned to and released in the US upon serving 
>>> their sentences.
>>>  
>>> Is there an obvious legal answer?
>>>  
>>>
>>> *********************************
>>> John T. Parry
>>> Lewis & Clark Law School
>>> 503-768-6888
>>> parry at lclark.edu <mailto:parry at lclark.edu>
>>> http://ssrn.com/author=68608
>>> *********************************
>>>  
>>> ------------------------------------------------------------------------ 
>>>
>>>
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