Red tape shackles

By Patrick Markey

Two years ago, when Robert Bright pleaded guilty to his part in a botched Long Island robbery that led to the fatal shooting of a shopkeeper, his defense attorney argued that the Irish teenager should serve out part of his jail term in his native country.

Arguing that Bright would benefit from being close to his family, his attorney moved to have the teenager transferred to a prison in Ireland. But his request met with questions from the Nassau County District Attorney’s office.

Concerned that Bright could be treated more leniently under Irish sentencing law, prosecutors needed assurances that he would serve his sentence in full. The district attorney’s office, prosecutors argued, had a duty to the victim’s family and to the community.

Caught between two penal systems and their varying interpretations of sentence for his crime, Bright’s transfer hovered in a legal limbo while the Nassau County District Attorney’s office ensured a transfer would not mean his early release.

Bright is still being held in a New York State correctional facility, and advocates for his transfer say his case has become a telling illustration of how Irish nationals held in American jails can be confined by more than concrete walls and steel bars.

According to a report released last week, America’s punitive attitude toward crime, frequent bureaucratic delays and clashes between state and federal authorities over foreign prisoners are hampering an international convention allowing Irish prisoners in American jails a transfer home.

The study, completed by the Irish Commission for Prisoners Overseas, says the Council of Europe Convention on the Transfer of Sentenced Persons should allow prisoners such as Bright to serve their time in Ireland, where close family ties might foster a better chance of rehabilitation.

But while many countries, including the United States, have signed up to the convention, its case for rehabilitation and humanitarian treatment of prisoners abroad is often weighed down under reams of red tape, the report says. Cases such as Bright’s can be delayed while U.S. and Irish authorities wrangle over how to convert American sentences into Irish prison terms.

"Bureaucracy, lack of trust between governments and indecision have slowed the process down to an unacceptable level," said Nuala Kelly, one of the commission’s coordinators. "While the convention has had its successes, many other delays are in a clear breach of the humanitarian spirit of the convention."

Identifying areas where the convention has faltered, the report calls signatory nations to return to agreement’s original raison d’être: providing prisoners in unfamiliar countries an opportunity to speed up their rehabilitation by bringing them back to their families.

According to the report, Irish prisoners eligible under the convention have been denied transfer because of several problems, among them, an unwillingness to share information between member states, an often punitive and hostile attitude to transfers and a lack of trust in other nation’s methods.

But the report singles out the United States, notably for the difficulties caused by the separation of state and federal authority, which can trap prisoners between the several agencies waiting for a definite answer.

Punitive approach in U.S.

Irish prisoner transfers have also been delayed because some American states tend toward a more punitive approach, handing out heavier jail terms with lengthy minimum sentences that, the report says, often have no equivalent within Ireland’s sentencing system.

"The most prohibitive factor concerning transfers from the U.S. is their punitive approach to crime and prisoners, personified in the slogan ‘You’ve done the crime now do the time.’ Their reliance on imprisonment has led to the highest incarceration rate in the world and the social warehousing of prisoners," the report says.

One example cited in ICPO’s report is the case of Patrick, a Belfast native whose two children, wife and elderly parents still live in Northern Ireland. Convicted and sentenced to 10 years for a crime in California, Patrick has been accepted as a model candidate for transfer by both governments, the sentencing judge and the probation service.

But his transfer, too, has been plagued by bureaucratic difficulties. According to the ICPO, Patrick would serve less time if transferred to Northern Ireland because of the province’s greater remission rates. Although he has offered to serve the full sentence in Northern Ireland, it would be illegal for British officials to hold him longer than the maximum time under their laws.

"This isn’t a problem for all international prisoners in the U.S. because of the willingness of some states to accept the part of the treaty concerning rehabilitation," said one Irish government official familiar with the several of the report’s case studies.

"At the federal level there is interest in the spirit of the treaty, but at the state level you are getting into the local law and order politics. No elected official wants to be seen as soft on crime," the government official said.

According to the ICPO, the Bright case continues to be delayed over his indeterminate sentence of five to 15 years. In order to be eligible for transfer, Bright’s sentence must be determinate, so it can be converted to an Irish jail term, the commission says.

The Nassau District Attorney’s office says it will not oppose his transfer as long as it is guaranteed he will serve out the full term. Under Bright’s sentencing, the minimum term he must serve is five years, but the actual sentence depends on the prisoner’s behavior and rehabilitation.

With no indeterminate sentences in Ireland those conditions could continue to complicate his transfer, according to the ICPO, which is pushing Irish officials to pressure U.S. authorities for movement in the case.

It could be a long wait. The last reply from the United States concerning Bright’s transfer came in fall last year.

Case studies

Other sketches of Irish prisoners held in American prisons:

€ A state prisoner in Illinois, where there is a 50 percent remission rate for his crime. If transferred to Ireland, he would serve two years longer than the original sentence imposed on him in an Illinois court, which he is willing to do.

But his application has been refused because the Irish government is unable to guarantee that he will not be eligible for temporary release at some later stage in his sentence.

€ One female prisoner served state sentence in a Massachusetts jail. She had pleaded guilty to manslaughter and was given a 15- to 20-year sentence.

After three years of waiting, she was finally transferred to Ireland in December 1999. According to the report, Massachusetts officials delayed making a decision on the case and incomplete information was sent to the Irish authorities on a number of occasions — factors that delayed her application considerably.

€ A prisoner who is being held in a secure hospital for the criminally insane in Massachusetts after he was sentenced to life without parole. He is interested in a transfer to Ireland. But there is no equivalent to life without parole under Irish law and it is unlikely that such a sentence would be enforceable in Ireland.

Although tried and convicted as a competent adult, he suffers from severe bipolar depression and manic depression.