A Constitutional Analysis of the Prohibition Against Collateral Attack in the Mexican-American Prisoner Exchange Treaty

Abstract

On November 25, 1976, the United States and Mexico concluded a bilateral treaty providing for reciprocal prisoner exchange, so that a national of one party to the agreement could complete his sentence in his home country. The objectives of the agreement essentially were twofold: first, there was a need to ameliorate relations with Mexico on the delicate matter of the abuse of American citizens confined in Mexican prisons; second, there was a strong desire to alleviate special hardships, such as those respecting living conditions and prospects for rehabilitation, resulting from imprisonment in a foreign country. The Treaty was ratified unanimously by the Senate on July 21, 1977, and enabling legislation was approved by Congress and signed into law on October 31, 1977. 5 The Treaty became effective one month later, and in December 1977 the first group of prisoners was transferred from Mexico to the United States.

In terms of its operation, the transfer to the United States is made subject to the following conditions regarding the status of both the offender and the offense: (1) the offense must be one that is generally punishable in the United States and is not a political or immigration offense; (2) the offender must be both a national of the United States and not a domiciliary of Mexico; and (3) there must be at least six months remaining on the sentence, with no appeal or collateral attack proceeding pending and the time for appeal expired. There also is a requirement of consent - by Mexico, as the transferring state, by the United States, as the receiving state, and by the prisoner. Although ordinarily Mexico would initiate the transfer procedures, a prisoner could submit a request for transfer to the authorities.

Once a prisoner has been transferred, adjudicative and custodial powers over him are divided between the two countries. Mexico retains the power to alter the original conviction and length of sentence and to pardon or grant amnesty to the offender, and it has exclusive jurisdiction over any form of collateral attack on the original sentence; the United States supervises the completion of the prison term, applies its laws on parole and conditional release, and takes jurisdiction over challenges to conditions of confinement and the constitutionality of the Treaty. The agreement, which protects the transferred offender from being subjected to double jeopardy in the United States for the crime for which he was convicted in Mexico, governs, in addition to adult offenders, those confined as mentally ill or youthful offenders, and it guarantees all transferred prisoners treatment that conforms to the procedural safeguards of their home country.

Although the Treaty met with little opposition in the Senate, substantial concern was expressed on several points-most prominently that the Treaty might violate the Constitution because it precluded a transferred prisoner from collaterally attacking the Mexican conviction in the United States courts. One reason that this problem arises is that the reciprocal prisoner exchange concept is novel to domestic law. The closest analogue is the law of international extradition, but that situation is significantly distinguishable. Further, although there is a significant body of analogous precedent available, it is incomplete, uncertain, and often inconsistent. This Article addresses the constitutional muddle through which the courts must wade in adjudicating challenges to the prohibition against collateral attack, which in the United States ordinarily is effectuated by a writ of habeas corpus.

Keywords: constitutional law, prisoner exchange treaty