Academic journal article Suffolk Transnational Law Review

Statutory Interpretation-Transfer Treaties Calling for Inconsistent Interpretation?-Bender V. U.S. Parole Comm'n, 802 F.3d 690 (5Th Cir. 2015)

Academic journal article Suffolk Transnational Law Review

Statutory Interpretation-Transfer Treaties Calling for Inconsistent Interpretation?-Bender V. U.S. Parole Comm'n, 802 F.3d 690 (5Th Cir. 2015)

Article excerpt

Transfer treaties are given authority under the U.S. Constitution's Supremacy Clause. (1) These treaties are in place to allow prisoners serving sentences in foreign countries the opportunity to serve the remainder of their sentence in their home country. (2) In Bender v. United States Parole Commission, (3) the United States Court of Appeals for the Fifth Circuit was pressed with the issue of examining whether the release date, on its face, illegally exceeded the statutory allowance under 18 U.S.C.A. [section] 4106A ([section] 4106A), which states, the release date "shall not exceed the term of imprisonment imposed by the foreign court on that offender." (4) The Court held that a release date provided by the United States Parole Commission (the Commission) is permissible under the statutory language and is in accordance with the purpose of the Council of Europe Convention on the Transfer of Sentenced Persons (the European Transfer Treaty), to which Costa Rica is a party. (5)

On July 25, 2005, Anthony Bender (Bender), a U.S. citizen, invited M.J. (the Victim), a twenty-four-year-old student, to take a ride with him to downtown Puerto Jiminez, Costa Rica. (6) He met the Victim earlier that day and invited her to an establishment called Juanita. (7) Instead of driving to Juanita, Bender raced home, grabbed the Victim and forced her into the house, where he violently beat and raped her. (8) Eventually, the Victim escaped and hid in a swamp area until a guard found her. (9)

In 2006, a Costa Rican Tribunal convicted Bender of three counts of rape and sentenced him to thirty years in prison. (10) In 2012, Bender applied for a transfer pursuant to the European Transfer Treaty to serve the remainder of his sentence in the United States. (11) After transferring Bender, the Commission assigned a probation officer to conduct a Post-Sentence Investigation Report (PSR) to calculate his offender level based on the details of the crime and history of the offender; Bender's level was determined to be forty-three. (12) In an effort to recommend a release date, the probation officer conducting the PSR was responsible for looking to the United States Sentencing Guidelines Manual (Sentencing Guidelines) and recommending a sentencing period based on Bender's offender level. (13) The probation officer's determination also included any sentence reducetion Bender may have received because of the severe abuse he experienced while imprisoned in Costa Rica. (14)

After receiving the PSR recommendation, the Commission held a hearing to determine the Bender's release date. (15) The Hearing Examiner noted Bender might be eligible for an earlier release date based on the severe abuse he received in prison. (16) The Commission, however, held, in light of the details of the offense, Bender would be released after serving 360 months in prison and a period of supervised release for five years, or until the expiration of Bender's Costa Rican sentence, whichever happened first. (17) Bender appealed the Commission's determination of release, arguing the "five years of supervised release or until the expiration of the foreign sentence" exceeded the statutory maximum that the European Transfer Treaty and [section] 4106A(b)(l)(A) allows. (18)

Transfer treaties, like the European Transfer Treaty, unify countries by providing prisoners convicted abroad the opportunity to serve their remaining sentence in their home country. (19) The United States has entered into these treaties for purposes of protecting its citizens. (20) In an effort to maintain foreign relations, the United States agrees to be bound by the nature and duration of the sentence that the original sentencing country imposed. (21) Not every person sentenced abroad can transfer; in order to do so, they must meet conditions such as giving consent to transfer, the sentence they are serving must be final, and six months of their sentence has already been served. (22) Once the prisoner is transferred, the process for determining their release date requires a probation officer to conduct a PSR. …

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