Prisoner Offshoring, or Gaolbalization

Belgium and the Netherlands have an interesting arrangement, an example of economics and incentives working clearly in the public law field. Belgium has more convicts than it can accomodate in its prisons. Neighboring Netherlands has the opposite problem: not enough prisoners. Several years ago, it was facing having to shutter some facilities. But then the two countries made a deal: Belgium rents space for its inmates in Dutch jails, patrolled by Dutch corrections guards. (Perhaps the Flemish hope they can be “transferred” to Dutch custody as well, or at least out of Belgium.)

One would think this would spark some significant criticism on human rights grounds. So far, a delegation from the Council of Europe paid a site visit to the Dutch prison, and issued what seems a largely favorable report. There have been calls for emulation in Britain. Prime Minister Cameron has gone halfway, and come out in favor of sending foreign nationals back to their home countries to serve their time, though implementing this has been a bit of a bother.

There may be a trend here – call it Gaolbalization. Sending prisoners to the cheapest justice provider really went global in the past few years with Somali piracy. Dozens of nations have sent warships to catch the pirates. Piracy is a universal jurisdiction crime that can be tried by any country, and the Law of the Sea Treaty gives precedence to the capturing state. The problem is, piracy prosecution is time-consuming (at least in Western legal systems) and expensive, and leaves one with a permanent pirate population.

Thus European nations, the U.S., and other countries have worked out deals with Kenya and the Seychelles to transfer pirates caught by the former nations to be tried and imprisoned in the latter. There seems to be implicit compensation in these deals, with donor countries and the United Nations Office of Drugs and Crime modernizing the prisons and courts of receiving countries, getting them new “kit,” grants and other foreign aid. The stories of these dealings, often done on a case-by-case basis, would be fine reading in itself.

In the latest twist, the receiving country, the Seychelles, has found new efficiency: transferring the pirates it convicts back to breakaway regions of the Seychelles, which the capturing states were loath to do for human rights reasons. Again, under international law, piracy is as much, if not more, within the jurisdiction of the capturing state as the receiving state. Now we will have triple-transfered pirates. (One group of pirates captured by Germany and transferred to Kenya have apparently sued in a German administrative tribunal and won some kind of judgment, though I have not managed to get much on the details.)

Prisoner offshoring is now well outside the mainstream in the U.S. It would raise many constitutional difficulties. There would be questions about whether the circumstances in the foreign prisons violated particular constitutional provisions or rights of prisoners; access to counsel would seem inherently difficult. (The agreements discussed above stipulate that the receiving country will ensure adherence to relevant human rights standards, and generally provide some monitoring). One might also think that having to serve time abroad, away from kith and kin, for offenses committed here would be an Eighth Amendment violation in itself. And I’m sure there are lots of other problems.

On the other hand, if the Dutch/Belgium deal, or the Somali system, inspires other Western states, some might suggest that the Eighth Amendment is the kind of general constitutional stuff that has to be interpreted in light of changing international standards, in a global constitutional dialogue with other Western nations. Fortunately, “Decent Respect for the Opinions of Mankind” does not require following those opinions (or maybe even listening to them).

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