Japan's decision to join the Council of Europe (COE) Convention on the Transfer of Sentenced Persons means that many Americans now in prison in Japan may be able to transfer to the U.S., and serve out their sentences closer to home. This web page provides you with the details of the transfer process. The Treaty came into effect on June 1, 2003.
- Transfers can take 2 years or longer from the time the process begins.
- The prisoner, the Government of Japan and the U.S. government must all agree to the transfer. If one of the three says "No," the transfer will not occur. No prisoner will be transferred against his/her will.
- Only sentenced prisoners may transfer. Prisoners with pending appeals are not eligible to transfer.
- Prisoners with six months or less to go on their sentences are not eligible to transfer.
What can I do? Tips for Family Members
The most important things that you can do are to:
- Help the prisoner decide if transfer is the right option and have the prisoner express his/her decision to the Embassy in writing (a form for the prisoner to complete and sign is in the information packet). The prisoner must do this himself/herself; a family member cannot do it for the prisoner and
- Ask the prisoner to write to a Federal Public Defender to learn how his/her sentence would be handled in the U.S. Details are in the information packet.
We supply this information packet to all sentenced American prisoners automatically. There is no need to request it. The information packet you view on this web site is identical to the one we supply all sentenced American prisoners.
Requests for transfers will be processed as quickly as possible. Letters asking for expeditious processing are not necessary. The Embassy has no control over the amount of time the Japanese government may take to process a transfer request and cannot compel the Japanese side to process cases faster.
SOFA-status Americans in prison in Japan are also eligible for transfer, though their cases will be handled by both the U.S. military and the Embassy.
PDF software is required to view this information packet on your computer. The latest Adobe Acrobat software is available for a free download.
Who decides if a prisoner may transfer?
The decision whether to transfer an American citizen back to the United States is made by the United States Department of Justice (along with the Japanese government and the prisoner himself/herself). The U.S. Embassy is not directly involved in the YES/NO decision made by our Department of Justice in Washington.
If a prisoner transfers, will he/she have a U.S. criminal record?
Many prisoners sentenced for crimes overseas who are contemplating transfer have asked if a transferred prisoner would have a prior record in the United States. A transferred prisoner will have a record in NCIC (National Crime Information Center) that shows the date of arrest, the offense and the sentence imposed. It will also note that the conviction was made in a foreign court.
The Bureau of Prisons (BOP) will also assign the prisoner a number and the prior sentencing data would be available to BOP if the prisoner were rearrested and sentenced for a new federal offense. This information is also available to law enforcement agencies that have access to NCIC.
What about civil disabilities?
If the prisoner is concerned about civil disabilities because of the prior conviction (e.g., unable to serve on a jury, prohibited from holding public office, unable to vote, unable to be a union representative or prohibited from possessing a firearm) these disabilities usually require the conviction to be a "Federal, State or Local" court and a foreign conviction would not count. Most laws regarding civil disabilities are state laws.
There are two federal firearm statutes that prohibit convicted felons from possessing a firearm. One requires "Federal, State or Local" conviction, the other is vague with regard to a foreign conviction.
Will the prisoner have a "prior arrest" if another crime is committed?
If by "record" the prisoner is worried that if he or she is arrested and convicted in the United States in the future whether a conviction in a foreign court will cause the sentence to be enhanced because of the "prior conviction" abroad, the answer is a qualified "no." Laws requiring the enhancement of a penalty because of a prior conviction require the conviction to have occurred under appropriate U.S. constitutional due process procedures. These enhancements are typically the "three strikes and you're out" type or a higher mandatory minimum sentence if the defendant had a prior conviction.
However a judge may be aware of the prior conviction abroad because of the transfer or because of investigations made prior to sentencing. Even though the judge may not enhance the sentence based on a statutory requirement, the knowledge of the prior conviction may make the court less likely to impose as lenient a sentence as it would if there were no information on the prior criminal conduct abroad. Of course, this information may come to light even if the prisoner did not transfer, but, generally, the information is easier to obtain from NCIC after a transfer.
Who is eligible to transfer?
In addition to the requirement that the prisoner be sentenced, there are other general requirements that must be satisfied before a transfer can occur. The judgment and sentence must be final, which means that there can be no pending appeals or collateral attacks.
There also must be sufficient time remaining on the sentence for an application to be processed. Normally this period is six months.
Japan will require the prisoner to pay any fines or restitution that are imposed as part of the sentence before the approval decision is made.
Will a prisoner spend less time in prison in the U.S.?
A prisoner who is interested in transferring should contact the Defender Services Division of the Administrative Office of the U.S. Courts to obtain advice as to whether a transfer would be an appropriate option for the prisoner. Some prisoners decide not to apply for transfer after consulting with a federal public defender (FPD) and learning that they will spend less time in custody if they remain in the foreign country than if they transfer to the United States and have their sentence administered according to United States sentencing provisions.
Full details, including the address of the federal public defender, are in this information packet we give to all eligible prisoners.
Does the prisoner need a lawyer?
Prisoners who are applying for transfer may be represented by an attorney but need not be. The overwhelming majority of applicants to the prisoner transfer program are not represented by an attorney. The Embassy does not provide an attorney and cannot provide legal advice.
Are U.S. prisons safe?
A number of prisoners have asked about safety and security conditions inside Federal Prisons. The Federal Prison system is administered by the Bureau of Prisons, whose mission statement contains the following excerpt: The Bureau ensures the physical safety of all inmates through a controlled environment which meets each inmate's need for security through the elimination of violence, predatory behavior, gang activity, drug use, and inmate weapons. Through the provision of health care, mental, spiritual, educational, vocational and work programs, inmates are well prepared for a productive and crime free return to society.
Model Case of Transferring an American Citizen Prisoner from Japan to the United States
The following describes the process by which an American may be transferred to the U.S. to complete his or her sentence.
Be sure to read the full information packet we distribute to interested prisoners.
- A Japanese court sentences the American citizen, and the sentence becomes final after all appeals or collateral attacks are exhausted. The American citizen is moved to a designated prison and must serve at least one third of the sentence. We have learned that the Government of Japan will not consider any applications for transfer until the prisoner has served at least one third of his/her sentence.
- A consular officer provides prisoner transfer information with guidance on how to prepare a letter to the Federal Public Defender (FPD) for more information on how the sentence is likely to be administered in the United States. The prisoner should write directly to the FPD, but if for any reason this is not possible, the Embassy will forward his letter to the FPD. The Consular Officer also provides the Prisoner Transfer Application Questionnaire. You can read these documents online.
- The Embassy receives the signed questionnaire from the prisoner expressing interest in transfer and faxes the questionnaire, the letter of notification as supplied to us by the prison warden describing the crime, passport data and any other arrest information to the International Prisoner Transfer Unit (IPTU) at the U.S. Department of Justice in Washington DC.
- The IPTU makes a decision based on information provided and sends an approval letter addressed to the Japanese Minister of Justice to the Embassy with a request to transmit this to the Japanese Ministry of Foreign Affairs under cover of diplomatic note for further transmission to the Japanese Ministry of Justice. Copies are sent to the Embassy and directly to the Security Division, Correction Bureau, Japanese Ministry of Justice.
- If the Government of Japan approves the transfer, the Japanese Ministry of Justice sends an approval letter to Embassy, through the Japanese Ministry of Foreign Affairs, with the information required by Article 6 of the transfer treaty, including a certified copy of the judgment and the law on which it was based, a statement indicating how much of the sentence has already been served, a declaration containing the consent to the transfer as referred to in Article 3.1 d, and medical or social reports on the sentenced person. The Embassy then sends packet to the IPTU in Washington via overnight courier.
- The IPTU notifies the Administrative Office of U.S. Courts of the approval for transfer. A United States Magistrate Judge and Federal Public Defender are selected in preparation for a consent verification hearing which is required by United States Law.
- The United States Magistrate Judge and Federal Public Defender travel to Japan, and the consent verification hearing is held at the Japanese prison.
- If the prisoner consents, United States Bureau of Prisons (BOP) escorts then travel to Japan to pick up the prisoner at Narita Airport and return the prisoner to the United States to continue serving the sentence imposed by the Japanese court.
Transfer of American prisoners from Japan to the U.S. takes place under a multilateral treaty called the Council of Europe (COE) Convention on the Transfer of Sentenced Persons.
The Japanese Diet unanimously approved Japan's accession to the Council of Europe (COE) prisoner transfer treaty on July 23, 2002. The Diet and the Japanese Supreme Court then approved the necessary changes to Japanese law in January 2003 so as to allow for the transfer of prisoners. In February 2003 the Japanese Ministry of Justice and the Japanese Ministry of Foreign Affairs deposited the treaty instrument with the COE in February 2003, to become effective June 1, 2003.
Learning More Online
Family members and representatives can obtain additional information from these web sites: