Some Thoughts on Restoration, Reintegration and Justice in the Transnational Context
Fordham International Law Journal
Copyright c 1999 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Mark Andrew Sherman
This Essay argues that all actors – prosecutors, judges, and defense counsel – should care
about what happens to foreign offenders following a judgment of conviction or entrance of a guilty
plea, and that transnational correctional processes should be constructed and used to facilitate
restoration of the victim and victimized community, and rehabilitation and reintegration of the
offender. This is critical because, as in the domestic context, decisions about where and how
foreign offenders are to be punished have much to do with whether justice is achieved for victims,
affected communities, and offenders.
Mark Andrew Sherman*
There has been a lot of talk lately among members of the
bench and bar regarding transnational crime. Such talk tends to
focus on assistance or cooperation in transnational matters and
the use of international instruments to effect assistance or
cooperation. Symposia and conferences are held and articles and
books are written discussing prosecutorial and defense access to,
and usage of extradition, mutual legal assistance, and prisoner
transfer regimes. All this talk and scholarship is helpful. I
suggest, however, we broaden the discussion to cover issues of
restoration of victims and communities affected by transnational
crime, and reintegration of foreign offenders.'
Many prosecutors and defense counsel-and even some
members of the bench-tend to view their roles narrowly.
Prosecutors, rightly, are concerned with convicting "bad guys" in
order to protect the public. Defense counsel, rightly, are
concerned with ensuring the protection of criminal defendants'
rights. The bench, rightly, is concerned with ensuring the fair
administration of justice. The problem is that these
perspectives, while correct, often fail to consider the long-term
consequences of prosecutorial, defense, and judicial decisions and the
larger environment in which crime occurs. This problem is
troublesome in the transnational context.
Consider, for example, an extradition request involving a
citizen of the requested country for a crime committed in the
requesting country.2 Despite the requested country's concern
* Education Specialist, Federal Judicial Center, Washington, D.C. BA. George
Washington University; J.D., University of Miami; LL.M. Georgetown University.
Member, District of Columbia Bar. The views expressed in this Essay are those of the author
and do not necessarily represent the views of the Federal Judicial Center.
1. For purposes of this Essay, a "foreign offender" is an offender who is not a
citizen or subject of the prosecuting state. This group includes, but is not limited to,
foreign nationals subject to extradition and immigrants.
2. Extradition is merely one aspect of this problem, and extradition of nationals an
with extraditing its citizens,3 the extradition occurs, the
defendant is convicted (or pleads guilty), and is sentenced to a period
of incarceration in the requesting country. What happens to the
offender after sentencing? If a prisoner transfer treaty exists
between the requested state and the sentencing state, then the
offender may request a transfer. Since the transfer decision is
carried out at the discretion of the sentencing state, maybe the
transfer will occur or maybe it will not.4 But what if either there
exists no such treaty or, if one does exist, the offender does not
know it? If no transfer occurs and the offender completes his or
her sentence in the sentencing state, then what occurs during
the period of incarceration and during and after the offender's
deportation proceedings? In a situation that goes beyond
extradition of foreign nationals, what if the sentencing country
determines that it has too many foreign prisoners generally,
commutes the sentences of those determined to be the least
dangerous, and returns them to their home country?5 What does this
mean for the victim of the offender's crime? What does it mean
for the community subjected to the offense? What are the
resulting risks for the community receiving the released offender and
the offender herself?
Prosecutors and judges usually do not concern themselves
with these questions because they are not germane to the
shortterm prosecutorial or judicial functions. While defense counsel
often do so concern themselves, they sometimes do not. These
attitudes persist even in the domestic context. In that situation,
even narrower subset. The problems described in this Essay are also applicable to
extradition from third countries and to the immigration context.
3. For an extensive discussion of the principle of non-extradition of nationals, see
Michal Plachta, Non-Extradition of Nationals: A Never Ending Story ,13 EMORY INT'L L.
REv. 77 (1999).
4. For an exhaustive study of the prisoner transfer process, see Mic-siAL PLAC-rA,
TRANSFER OF PRISONERS UNDER INTERNATIONAL INSTRUMENTS AND DOMESTIC
LEGISLATION: A COMPARATrvE STUDY (1993). For a critique of Michal Plachta's analysis and
discussion of prisoner transfer as applied in the United States, see Mark Andrew
Sherman, Book Review, TransferofPrisonersUnderInternationalInstruments andDomestic
Legislation: A ComparativeStudy, 28 GEo.WASH. J. INT'L L. & ECON. 495 (1995). For a
practical primer on the prisoner transfer process in the United States, see Alan Ellis, An
Introduction to PrisonerTransfers: GoingHome, CHAMPION, July 1999, at 32.
5. This situation has occurred in the United States. See FloridaBecomes FirstState in
a Move To DeportIllegalAliens BeforeExpirationofTheirPrisonTerm,10 INT'L ENFORCEMENT
L. REP. 242 (1994); Texas Becomes Latest State To Sue U.S. Government over Prisonerand
IllegalAlien Costs, 10 INT'L ENFORCEMENT L.REP. 237 (1994); CaliforniaProposesChanges
in Transferof Foreign-BornPrisoners,11 INT'L ENFORCEMENT L. REP.290 (1995)).
however, correctional systems exist that minimize any adverse
effects. This is much less the case in the transnational sphere.
Therefore, this Essay argues that all of these actors should care
about what happens to foreign offenders following a judgment
of conviction or entrance of a guilty plea, and that transnational
correctional processes should be constructed and used to
facilitate restoration of the victim and victimized community, and
rehabilitation and reintegration of the offender. This is critical
because, as in the domestic context, decisions about where and
how foreign offenders are to be punished have much to do with
whether justice is achieved for victims, affected communities,
I. THE MYRIAD PROBLEMS OFJUSTICE
The situation of foreign offenders presents several problems
of justice, which will increase in magnitude as the world
continues to shrink. Consider the victim of the offense. Keep in mind
that a "victim" can be an individual, community, or both. When
a nation refuses to extradite a national who has committed an
offense in another country, this situation leaves the victim
without practical recourse to justice, even if the offender is tried and
convicted in his or her own country.6 Similarly, if the foreign
offender is extradited, tried, and convicted in the requesting
state, then the victim cannot be made whole if the offender is
transferred or deported. In these situations, the offender is
treated fairly, but the victim is not.
Consider also, the foreign offender and other collateral
parties. When a foreign offender is imprisoned in the country in
which the offense took place, without possibility of transfer to his
or her own country, the offender may have little real opportunity
for effective rehabilitation and reintegration. While this
situation may not present an immediate problem for the sentencing
state, since the foreign offender most likely will be deported
upon completion of his or her prison term (if not before),7 it
6. This Essay assumes that justice for victims of crime is an important value and
that traditional punishment of offenders is merely one part of the "justice"package.
7. In the United States, the general rule is that criminal aliens become deportable
upon release from imprisonment. See 8 U.S.C. § 1231 (a) (1) (B) (iii) (1994). Further
"[p]arole, supervised release, probation, or the possibility ofarrest or further
imprisonment is not a reason to defer removal." Id. § 1231 (a) (4) (A). Moreover, recent
immigration legislation now makes it possible for criminal aliens to be deported prior to
presents a serious problem for the offender, the victim, the
receiving community, the criminal justice systems of both the
deporting and receiving states, and the larger society. In this
regard, to argue that an offender can spend several years in a
foreign prison and then, following deportation, immediately
readapt to life at home without correctional supervision,
stretches credulity. Indeed, this reasoning is why nations with
modern criminal justice systems have some type of parole,
probation, or community supervision system for domestic offenders.
Without access to systems of meaningful restoration and
reintegration, justice remains elusive for the victim and recidivism by
the offender is more likely. The latter consequence translates
into greater risk of harm to the public; repeated contact with the
criminal justice system for the offender; heavier caseloads for
police, prosecutors, defense counsel, the bench, prisons, and
community correction agencies; and a greater criminal justice tax
burden to be borne by the public.
II. A PROPOSAL
To change direction to a form of transnational
criminaljustice that considers the needs of victims, affected communities,
and offenders, the community of nations must reach consensus
on the goals of criminal justice, such as:
" Holding offenders accountable while protecting their due
* Providing offenders the opportunity for effective
rehabilitation and reintegration;
* Providing victims and communities with opportunities for
restoration and protection.
Certainly, much of the world agrees with the first goal, and there
is significant agreement on the second goal as well. The
international community, however, is just getting started on the third
completion of their sentence. Id. § 1231 (a) (4) (B). For further discussion of issues
involving the rights of criminal aliens, see Kari Converse, CriminalLaw Reforms: Defending
Immigrants in Peril, CHAMPION, Aug. 1997, at 10; William R. Maynard, Deportation: An
ImmigrationPrimerfor the CriminalDefense Lawyer, CHAMPION, June 1999, at 12.
8. See, e.g., AusTRALIAN INST=rTE OF CRIMINOLOGY, RESTORATIVE JUSnCE: AN
INTERNATIONAL PERSPECTIVE (visited May 5, 2000)
<www.aic.gov.au/rjustice/intemational.html> (on file with the FordhamInternationalLaw Journal); Council of Europe
But assume, arguendo, that the community of nations
achieved consensus on all three goals. What could transnational
criminal justice look like? Countries who are part of this
consensus group might be willing, for example, to dispense with the
principle of non-extradition of nationals and similar norms that
obstruct assistance and cooperation. In return, protection of the
offender's human rights would be guaranteed, and he or she
would be eligible for return once the victim and victimized
community have been made whole. Similarly, among this group of
nations, the reactive practice of "dumping" illegal immigrant
offenders via deportation and transfer could cease and be replaced
by a proactive system that would guarantee that, in appropriate
cases, following restoration of victims and communities,
offenders would be eligible for transfer to their home country and
provided a realistic opportunity to re-enter society under
supervision, thus reducing the risk of harm to the receiving community.
The legal tools currently exist to facilitate such a systemic
transformation. Modern bilateral and multilateral extradition,
prisoner transfer and transnational courtesy offender
supervision (i.e., probation/parole) regimes exist and can be modified
accordingly, if necessary. With regard to courtesy offender
supervision, for several years Member States of the Council of
Europe, pursuant to a multilateral convention,9 have routinely
supervised offenders conditionally sentenced or conditionally
released in another country. This is like the courtesy offender
supervision commonly engaged in by probation agencies in the
United States. Certainly, membership to that convention could
be expanded, or the U.N. Model Treaty on the Transfer of
Supervision of Offenders Conditionally Sentenced or Conditionally
Released' 9 could be used as an alternative. These treaties, when
used in tandem with prisoner transfer treaties, could permit an
Committee of Ministers, Recommendation R(99)19 Concerning Mediation in Penal
Matters (Sept. 1999); see also U.S. DEPARTrMENT OFJUSTICE, OFFICE OFJUSTICE PROGRAMS,
OFFICE FOR VIrMS OF CRIME,PROMISING VIC'IM-RELATED PRAGFICES AND STRATEGIES IN
PROBATION AND PAROLE 56-71 (1999) (discussing uses of restorative justice approaches
in United States).
9. See European Convention on the Supervision of Conditionally Sentenced or
Conditionally Released Offenders, Nov. 30, 1964, Europ. T.S. No. 51, 978 U.N.T.S. 227.
10. Model Treaty on the Transfer of Supervision of Offenders Conditionally
Sentenced or Conditionally Released, GA Res. 45/119, U.N. GAOR, 45th Sess., Supp. No.
49A, at 221, U.N. Doc. A/45/49 (1991). This is also available via the U.N. Criminal
Justice Information Network at <http://vww.uncjin.org>.
offender to serve part of the sentence in the sentencing state,
engage in restorative action toward the victim and the affected
community, and then be transferred home to complete the
sentence and re-integrate under supervision.
As for restorative concepts of justice, several countries are
altering their domestic systems to include such approaches.
Restorative justice even has been recognized at the
intergovernmental level: along with international cooperation in combating
crime, restorative justice is on the agenda of the Tenth United
Nations Congress on the Prevention of Crime and Treatment of
As we enter the twenty-first century, we continue to witness
the world become increasingly integrated economically,
technologically, and socloculturally. Accompanying this integration,
law enforcement officials tell us there is a rise in transnational
crime. So too, therefore, must be the number of transnational
offenders, victimized individuals, and victimized communities.
Thus, it is incumbent upon the community of nations, working
bilaterally and through intergovernmental organizations, to
recognize the implications of such integration not just for law
enforcement, but criminal justice as a whole. Municipal criminal
justice systems must adapt to the increasingly borderless nature
of crime. Serious problems ofjustice exist transnationally-on a
relatively small scale now, but they will grow. The basic tools and
concepts to facilitate change exist, but broad discussion and
consensus do not, and that is where much of the serious work must
11. U.N. General Assembly , U.N. GAOR 53rd Sess ., Tenth UnitedNations Congresson the Preventionof Crime and the Treatment of Offenders: Discussion Guide,A/CONF.187.PM.1 (Sept. 22 , 1998 ).