U.S. and Cuba Discuss Exchange of Prisoners

One of the so-called Cuban Five recently completed his sentence in U.S. prison and is now on probation in the U.S. and not permitted by the court to return to Cuba.[1]

We now learn that the U.S. offered to allow this individual with dual U.S.-Cuban citizenship to return to Cuba in exchange for his renouncing his U.S. citizenship and Cuba’s release of imprisoned U.S. citizen, Alan Gross. Another part of the offer was U.S. stated willingness after the exchange of these two individuals  to discuss certain other issues between the two countries, including removal of Cuba from the U.S. list of state sponsors of terrorism;[2] reducing spending on Cuban democracy promotion programs like the one that led to the U.S.’ hiring of Gross; authorizing U.S. companies to help Cuba clean up oil spills from Cuba’s planned offshore drilling; improving postal exchanges; ending a program that makes it easier for Cuban medical personnel to move to the U.S.; and licensing the French company Pernod Ricard to sell Havana Club rum in the United States.[3]

This is a positive development.[4]

Cuba, however, rejected this offer on the ground that the Cuban now on probation had already served his prison sentence. Instead Cuba is reported to have counter-offered to release Gross in exchange for the U.S. pardoning some or all of the Cuban Five.[5]

This too is a positive development in keeping open the possibility of further negotiations between the two countries on the many accumulated issues burdening their relationship.

However, if the reports are correct that Cuba was seeking “pardons,” then it was asking for something that is not legally or politically possible. Federal pardons are theoretically available only to federal felons who have completed their sentences and are rarely granted as they involve collateral benefits under U.S. law. As the other four Cubans have not completed their sentences, they are not eligible for pardons. A commutation of sentence, on the other hand, reduces the period of incarceration; it does not imply forgiveness of the underlying offense, but simply remits a portion of the punishment. It has no effect upon the underlying conviction and does not necessarily reflect upon the fairness of the sentence originally imposed.The other four Cubans are eligible for clemency or commutations. [6]

I hope the U.S. and Cuba continue these preliminary discussions and reach an agreement on commuting the sentences of the Cuban Five and Alan Gross and allowing all of them to return to their home countries.


[1] See Post: Commutation and Release of Convicted “Spies” (Sept. 24, 2011); Post: Roots of Hope for U.S.-Cuba Relations (Sept. 27, 2011); Comment: Cuban Foreign Minister Attacks U.S. Policies (Sept. 28, 2011)(Comment to prior Post); Post: President Obama Is Wrong on Cuba (Sept. 29, 2011).

[2]  See Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism”  (May 20, 2011); Post: U.S. Repeats Its Ridiculous Designation of Cuba as a “State Sponsor of Terrorism”  (Aug. 21, 2011).

[3] Assoc. Press, AP Sources–US Offered Cuba Swap for American, N.Y. Times (Oct. 14, 2011).

[4] See Post: The U.S. Should Pursue Reconciliation with Cuba (May 21, 2011).

[5]  See n.3.

[6]  U.S. Dep’t of Justice, Office of the Pardon Attorney, http://www.justice.gov/pardon/index.html.

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

4 thoughts on “U.S. and Cuba Discuss Exchange of Prisoners”

  1. Cuban-Americans in Congress Criticize U.S. Willingness To Discuss Issues with Cuba

    U.S. Senator Marco Rubio, a Republican from Florida, criticized the U.S. expression of willingness to discuss certain issues with Cuba if it released U.S. citizen Alan Gross. Rubio said, “It’s deplorable that the U.S. government offered several unilateral concessions to the Castro regime in exchange for the release of a man who was wrongfully jailed in the first place. Rather than easing sanctions in response to hostage taking, the U.S. should put more punitive measures on the Castro regime.” Rubio also hinted that he might seek to block the nomination of Roberta Jackson as assistant secretary of state for the western hemisphere to protest such willingness. (Tamayo, Report Angers Cuban Americans in Congress, Miami Herald (Oct. 15, 2011); Senator Marco Rubio, Press Release: Senator Marco Rubio Statement on Administration’s Proposed Prisoner Exchange with Cuba (Oct. 14, 2011), http://rubio.senate.gov.)

    Republican House member from Florida, Lleana Ros-Lehtinen, who chairs the House Foreign Affairs Committee, took the same tack: “Shame on the Administration for engaging with the tyrants in Havana. This would set a dangerous precedent and encourage other dictators to take Americans as prisoners.” (Tamayo, supra.)

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