terminate the treaty on November 30, 1980, by notifying us within 90 days preceeding that date that it intends to let the treaty terminate. It is impossible to preclude the possibility that Americans who transferred under the treaty with Peru, if and when it is ratified, might challenge the treaty. We are confident, however, that the treaty with Peru could withstand constitutional challenges. 4. Under the terms of the agreement, does the consent of a transferred prisoner constitute a waiver of his rights under the U.S. Constitution? Specifically, would a prisoner relinquish his right to contest in U.S. courts any due process' question or the right to file a habeas corpus petition? Under the treaty with Peru a prisoner who transferred to the United States would not waive his right actually to file habeas corpus petitions. On the other hand, in consenting to transfer, a prisoner would waive any constitutional right he might possess to have an American court test the fairness of his conviction in Peru or inquire whether his trial comported with United States constitutional standards of due process. 5. How comparable are Peruvian and U.S. laws and their respective legal systems? Do the sentences handed down on similar offenses correspond to usual U.S. practices? As a follow-up, the Committee has been informed by the Department of State that the Peruvian Government will soon implement far harsher penalties for drug-related offenses. Indeed, while the usual sentence is now about two years, the new provisions stipulate that an individual involved in an international drug trafficking conspiracy, or acting as the head of such an international operation, could be sentenced up to 20-25 years. How does the U.S. Government foresee reconciling this forthcoming, significant disparity in the practices of our respective legal systems? There is little similarity between the U.S. and Peruvian judicial systems since the latter is a system based upon the Napoleonic Code and its Continental successors. Sentences may be different in the two systems for similar offenses. On March 2, 1978 a new drug law was promulgated by the Government of Peru, and all persons arrested on narcotics charges since that date have been tried under its provisions. The only American thus far tried under the new law received a fifteen-year sentence. Recent sentence opinions issued by the public prosecutor to Americans have been longer than in the past. Two of them are 25 years or more, while the others range from three to six years. The actual sentences levied by the Superior Courts do not have to mirror the prosecutor's opinion and, in fact, the 15-year sentence previously mentioned followed a four-year sentence recommendation by the prosecutor. It is not yet possible accurately to predict future sentence length for narcotics offenders, but it is almost certain that they will be substantially longer than the two to three years received in the past. 6. As a rule, up to two years often elapses between the time a drug offender is arrested and finally tried, convicted and sentenced in Peru. In part, this appears to be a function of generally slow judicial proceedings, along with the required review of all drug-related cases by the Peruvian Supreme Court. Although the prisoner is credited with this time if convicted, what happens in those cases in which an individual is acquitted? Does the treaty in any way address this protracted process? Is there any realistic expectation that the Peruvian Government might move to accelerate these procedures so that an accused individual could be acquitted or receive his final sentence and request a transfer at an earlier date? The average time between arrest and Supreme Court confirmation of sentence for Americans has been gradually reduced and is now somewhat less than two years. This reduction has resulted from USG pressure and an increased awareness among judges of the international complications that can result from an extremely slow judicial process. A recent increase in GOP budgetary support for the judiciary should further reduce the time required for case processing and it is believed that most future cases will be completed within 12 to 18 months of arrest. Any further reduction will require an almost total overhaul of existing judicial practices. Time served while awaiting trial is applied against the sentence received. Most safeguards for the innocent lie in the police and investigative judge stages. When a person is bound over for a Superior Court trial, there already is a judicial finding of likely guilt. In recent experience, release by the Superior Court has been on a time-served basis rather than on a finding of innocence. If a person were to be acquitted by the Superior Court, there is no compensation available for time served. The treaty has no provision covering persons acquitted by the Peruvian courts. 7. Article III states that no prisoner transfer can occur until a sentence is final and that all appeal procedures have been completed. How does the Peruvian appeal process compare with that of the United States? There are a number of differences in the mechanics of the appeal process in Peru as compared to that of the United States given that the Peruvian legal system is a civil law system based on the Napoleonic Code. Of particular importance with respect to the transfer treaty is the fact that all Peruvian Superior Court decisions in narcotics cases are reviewed by the Peruvian Supreme Court. With respect to the few cases of Americans that have been reviewed by the Supreme Court in the past two years, these cases have been considered fairly and without extended delay. 8. Would U.S. nationals accused of a crime be provided with legal counsel as part of Peru's trial process? Public defender attorneys are appointed at the Superior Court stage of criminal proceedings. There is no provision for stateappointed defenders at either the investigative judge or Supreme Court stages. 9. Under the terms of the treaty, a prisoner who has received the death sentence would not be eligible for transfer. For which crimes does Peru impose the death penalty? How many such verdicts have been handed down over the last five years? At present, only treason and homicide following the kidnap and rape of a minor can result in the death sentence. When the new constitution enters into effect in July 1980, only treason will be punishable by death. The State Department knows of only one person executed during the past several years, and that was for treason. S. Ex. Rept. 96-32, 96th Cong., 2d sess. (1980), pp. 4-6. In reporting favorably on the Treaty, the Committee stated: This agreement would permit citizens of either nation (United States or Peru) who have been convicted in the courts of the other country to serve their sentences in their home country provided the consent of the prisoner and the approval of both governments are obtained. BACKGROUND Since 1977, the United States has concluded five penal exchange treaties. Three have already entered into force and the two most recently concluded will do so shortly. Although recent court challenges have been raised concerning the treaties, the parties to these agreements generally concur that the agreements are functioning well and respond to the parties' humanitarian interest in relieving the unusual hardships which a prisoner incarcerated abroad encounters. The parties also believe that these exchange provisions enhance the prospects for prisoner rehabilitation. And finally, the parties maintain that the conclusion of such agreements serves to improve bilateral relations by removing the stress resulting from the incarceration of U.S. citizens in foreign jails. Indeed, with regard to Peru, the Department of State notes that this agreement . . constitutes part of an ongoing effort to improve relations between the two countries." And there is considerable evidence that bilateral relations have been increasingly strained as more and more U.S. nationals have been arrested and imprisoned in Peru, at least in part because of stepped-up, cooperative programs designed to inhibit drug trafficking. Since 1978, the number of U.S. nationals imprioned in Peru has increased from 17 to 44. The majority of these prisoners have been accused or convicted of offenses relating to the possession, sale or transport of narcotics. Since about 1969, the United States, through the Drug Enforcement Administration and the State Department, has attempted to reduce the cultivation and trafficking of drugs in Peru. Notwithstanding this record of cooperation, considerable friction persists in our bilateral relations. In large measure, Peruvian practice with respect to pre-trial detention (typically 11⁄2 years of duration), court proceedings and prison conditions have generated expressions of concern on the part of the friends and families of imprisoned U.S. nationals. Moreover, because of federal funding of parts of these anti-narcotics programs, the United States Government has, from time to time, been accused of complicity with and/or approval of the poor prison conditions and prisoner treatment. While these concerns have been repeatedly communicated to the Peruvian Government by the U.S. Ambassador and the Department of State, for all practical purposes the problem remains essentially unchanged and of continuing concern both to the government and citizens of the United States. While the treaty cannot effect changes in Peruvian legal and penal practices, it can reduce the impact of them if a prisoner chooses to exercise the transfer option. SUMMARY OF MAJOR PROVISIONS The provisions of this agreement are in accord with those of similar agreements with Mexico, Canada and Bolivia, which have already entered into force. The terms are also basically consistent with penal exchange agreements with Panama and Turkey, which received the advice and consent of the Senate on November 30, 1979, and which will enter into force in early 1980. In keeping with the above agreements, the provisions of the treaty with Peru provide, inter alia: that it generally applies to a prisoner who has been convicted and sentenced for an offense which both parties recognize as a crime; that the prisoner be a national of the receiving state; that the sentence be final and all appeal procedures complete; and that the provisions of the sentence, excluding the period of confinement, already be complied with. As in the other agreements, this treaty will not be applicable when a prisoner has received the death sentence, been convicted of a purely military offense, or has less than six months remaining to serve at the time the petition for transfer is made. Finally, the treaty requires the consent of the prisoner as well as the approval of both governments before any transfer can occur. The Treaty between the United States and Peru on the Execution of Penal Sentences, signed at Washington, July 6, 1979, is at TIAS 9784; 32 UST 1471; entered into force, July 21, 1980. The Treaty between the United States and Bolivia on the Execution of Penal Sentences, signed at LaPaz, Feb. 10, 1978, is at TIAS 9219; 30 UST 796; entered into force, Aug. 17, 1978. The Treaty between the United States and Canada on the Execution of Penal Sentences, signed at Washington, Mar. 2, 1977, is at TIAS 9552; 30 UST 6263; entered into force, July 19, 1978. The Treaty between the United States and Mexico on the Execution of Penal Sentences, signed at Mexico, Nov. 25, 1976, is at TIAS 8718; 28 UST 7399; entered into force, Nov. 30, 1977. The Treaty between the United States and Panama on the Execution of Penal Sentences, signed at Panama, Jan. 11, 1979, is at TIAS 9787; 32 UST 1565; entered into force, June 27, 1980. The Treaty between the United States and Turkey on the Enforcement of Penal Judgments, signed at Ankara, June 7, 1979, is at TIAS 9892; entered into force, Jan. 1, 1981. §4 Jurisdiction Based on Universal and Other State Interests $5 Jurisdiction Over Vessels Boarding and Search on the High Seas U.S. Flag Vessels In United States v. Shelnut, 625 F.2d 59 (5th Cir. 1980), cert. denied, 450 U.S. 983 (1981), a three-judge panel affirmed convictions for conspiracy to import marijuana into the United States and conspiracy to possess marijuana with intent to distribute, against challenges to the constitutionality of the search. The Pappy, boarded some 180 miles south of the mouth of the Mississippi River, did not fly a flag, bore a detachable nameplate in violation of Coast Guard regulations, and was headed toward Texas; moreover, its name was not properly filed with the Coast Guard. In searching for the Pappy's identification number, the Coast Guard boarding party started in the aft hold, where marijuana was smelled and marijuana bales were found. In his decision for the Court, dated August 28, 1980, Circuit Judge Albert J. Henderson specifically upheld three rulings by the district court: (1) that the boarding, part of a document and safety check, was justified by the circumstances; (2) that there was no standard location for the vessel identification number, except that it is always below deck, but in any case the Coast Guard officer began the search aft because of inexperience and not because of an "improper motive to look for marijuana"; and (3) that the presence of customs agents as observers in the boarding party did not change the character of the search as a Coast Guard search. The Court ruled that nothing in the Supreme Court's decisions in Marshal v. Barlow's Inc., 436 U.S. 307 (1978), and Delaware v. Prouse, 440 U.S. 48 (1979), suggested a Constitutional prohibition against Coast Guard inspections of American vessels on the high seas, "conducted in pursuance of a policy of stopping as many vessels as possible, let alone those justified by visible violations of the regulatory statutes." 625 F.2d 59, 61. In United States v. Harper, 617 F.2d 35 (4th Cir. 1980), cert. denied, 449 U.S. 887, reh'g denied, 449 U.S. 1026 (1980), the Coast Guard had intercepted a shrimping trawler of North Carolina registry, the Lady Ellen, in the Mona Passage between the Dominican Republic and Puerto Rico, and its captain and crew had agreed to assist in a subsequent, successful raid at the delivery site for the twenty-five tons of marijuana on board. On February 13, 1980 the United States Court of Appeals for the Fourth Circuit upheld the propriety of the stop against Fourth Amendment challenges by the defendants. The Coast Guard had had |