ICAOS Bench Book for Judges

2014 Edition
and Court Personnel Version 8.0
 TABLE OF CONTENTS

What’s New – Latest Developments in ICAOS

Introduction

Quick Reference Guide

Chapter 1 – General Law of Interstate Compacts

1.1 Status of Interstate Compacts
1.2 Compacts Are Not Uniform Laws
1.3 Compacts Are Not Mere Administrative Agreements
1.4 Delegation of State Authority to an Interstate Commission
1.5 Congressional Consent Requirement
1.6 Considerations in Obtaining Consent
1.7 Interaction of Congress’s Legislative Authority with the Compact Clause
1.8 Effect of Congressional Consent
1.9 Withdraw of Congressional Consent
1.10 Federal Enforcement of Interstate Compacts
1.11 Eleventh Amendment Issues for Compact Agencies
1.12 Judicial Interpretation of Interstate Compacts

Chapter 2 – The Interstate Compact for Adult Offender Supervision (ICAOS)

2.1 History of the Interstate Compact for Probation and Parole (ICPP)
2.2 Why the New Interstate Compact for Adult Offender Supervision?
2.3 General Principles Affecting Movement of Offenders
2.4 Historical Development of the ICAOS
2.5 Purpose of the ICAOS
2.6 Effect of ICAOS on the States
2.7 Adoption and Withdrawal
2.8 Effect of Withdrawal
2.9 Key Features of the ICAOS
2.10 Key Definitions in the ICAOS
2.11 Interstate Commission
2.11.1 Primary Powers of the Interstate Commission
2.11.2 Rulemaking Powers
2.12 Enforcement of the ICAOS and its Rules
2.12.1 General Principles of Enforcement
2.12.2 Judicial Enforcement
2.13 Immunity, Duty to Defend, and Indemnification

Chapter 3 – The ICAOS Implications for the Courts

3.1 Key Definitions in the Rules
3.2 Judicial Considerations
3.2.1 Offender Eligibility Criteria
3.2.1.1 Offenders Covered by the ICAOS

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 3.2.1.2 Eligibility of Offenders, Residency Considerations – General
Overview
3.2.1.3 Specific Rules for Military Personnel and Their Families
3.2.1.4 Employment Transfers of Offenders and Their Families
3.2.1.5 Persons Not Covered by the ICAOS
3.2.1.6 Sentencing Considerations
3.2.1.6.1 Deferred Sentencing
3.2.1.6.2 Deferred Prosecution
3.2.1.6.3 Release from “Shock” Programs
3.2.1.6.4 What Constitutes Second and Subsequent Offense of
Driving While Impaired
3.2.2 Special Considerations
3.2.2.1 Out-of-State Treatment
3.2.2.2 Duration of Supervision
3.2.2.3 Type of Supervision in Receiving State & Disabled Offenders
3.2.2.4 Time of Transfer
3.2.2.5 Expedited Transfers
3.2.2.6 Temporary Travel Permits
3.2.2.7 Reporting Instructions for Probationers who are Living in a
Receiving State at the Time of Sentencing
3.2.2.8 Transfer of Supervision of Sex Offenders
3.2.2.9 Entities Covered by the ICAOS
3.3 Other Considerations
3.3.1 Victims’ Rights
3.3.2 Special Conditions
3.3.2.1 General Considerations
3.3.2.2 Authority to Impose Special Conditions
3.3.2.3 Limitations on Special Conditions
3.3.2.4 Sex Offender Registration and Exclusion Zones
3.3.2.5 Pre-acceptance Testing
3.3.2.6 Post-acceptance Testing
3.3.2.7 Summary
3.3.3 Restitution
3.3.4 Fees
3.3.5 Continuing Jurisdiction over Offender as Between the Sending &
Receiving States
3.3.6 Implications, Health Insurance Portability and Accountability Act of 1996
(HIPAA)

Chapter 4 – Returning Offenders to the Sending State

4.1 Status of Offenders Subject to the ICAOS
4.2 Waiver of Formal Extradition Proceedings
4.2.1 Waiver of Extradition under the ICAOS
4.2.2 Uniform Extradition Act Considerations
4.3 Violation Reports
4.4 Retaking

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 4.4.1 Offenders Convicted of a Violent Crime
4.4.2 Arrest and Detention of Offenders in the Receiving State
4.4.3 Hearing Requirements
4.4.3.1 General Considerations
4.4.3.2 Right to Counsel
4.4.3.3 Specific Considerations for Hearing under the ICAOS
4.4.3.4 Probable Cause Hearings when Violations Occurred in another
State
4.4.4 Bail Pending Return
4.4.5 Post Transfer Change in the Underlying Circumstances
4.5 Revocation or Punitive Action by the Sending State – Violation of Special
Conditions
4.6 Arrest of Absconders

Chapter 5 – Liability and Immunity Considerations for Judicial Officers and Employees
5.1 State Sovereign Immunity – Generally
5.2 Liability Considerations under 42 U.S.C. § 1983
5.3 Liability Associated with Discretionary Acts
5.4 Liability Associated with Ministerial or Operational Acts
5.5 Immunity Waivers
5.6 Types of “Acts” Under the ICAOS
5.7 Judicial Immunity
5.8 Qualified Immunity
5.9 Negligent Supervision Claims
5.10 Summary of Cases Discussing Liability in the Context of Supervision
5.10.1 Cases Finding that Liability May Be Imposed
5.10.2 Cases Rejecting Liability

References available at www.interstatecompact.org

• Flow Charts Training Resources

o Eligibility for Transfer Part I: Nature of the Offense
o Eligibility for Transfer Part II: Sentencing/Supervision Considerations
o Eligibility for Transfer Part III: Deferred Sentencing Considerations
o Acceptance of Transfer by Receiving State: Felony
o Acceptance of Transfer by Receiving State: Misdemeanor

• Model Act, Interstate Compact for Adult Offender Supervision

• Bylaws of the Interstate Commission for Adult Offender Supervision

• Rules of the Interstate Commission for Adult Offender Supervision

• Disclosures Permitted Under HIPAA (45 C.F.R. 164.512)

• Advisory Opinions of the Interstate Commission for Adult Offender Supervision

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 WHAT’S NEW – LATEST DEVELOPMENTS IN THE ICAOS
2014
Since the last update of the Benchbook for Judges and Court Personnel in 2012, a
number of developments have occurred in the areas of rulemaking and rule interpretation
through the Interstate Commission’s advisory opinion process. Among the most important rule
changes are:

 Motion passed to amend all rules requiring action of less than 30 days to be reflected as
business days and action of 30 days or more to be reflected as calendar days.

 Amendment to any rule referencing a timeframe of less than 30 days to be reflected as

business days and any rule referencing a timeframe of 30 days or more to be reflected as
calendar days.

 Amendment to definition of “abscond” clarifies an offender is absent from approved

place or residence or employment and is avoiding supervision.

 Amendment to definition of “warrant” clarifies compact offenders should not be admitted

bail.

 Definition of “violent offender” was repealed.

 Amendment to Rule 3.101-1 provides a new mandatory reason for transfer of supervision
and reporting instructions for veterans referred to a Veterans Health Administration
facility in a receiving state.

 Amendment to Rule 3.102 provides a new exception to allow an offender released from
incarceration in the receiving state who requests to relocate to the receiving state.

 Amendment to Rule 3.104-1 allows a receiving state to withdraw its acceptance for
transfer of supervision if an offender fails to report by the 5th business day following
notification of departure from the sending state.

 Amendment to Rule 3.107 requires the sending state to provide a summary of prison
discipline and mental health history for last 2 years, if available.

 Amendment to Rule 4.109 removes unnecessary language regarding receipt of a violation

report.

 Amendment to Rule 4.112 requires a case closure notice to be transmitted by the

receiving state within 10 days after the maximum expiration date.

 Amendment to 5.101 and new Rule 5.101-1 clarifies a sending state has discretion to
retake or order the return of an offender. If the offender is charged with a subsequent

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 felony or violent crime the offender shall not be retaken or ordered to return until
criminal charges have been dismissed, sentence has been satisfied, or the offender has
been released to supervision for the subsequent offense, unless the sending and receiving
states mutually agree to the retaking or return.

 Amendment to Rule 5.102 & repeal of Rule 5.103-2 removes the requirement for a
sending state to retake a violent offender who has committed a significant violation.

 Amendment to Rule 5.103 provides a time frame of 15 business days for a sending state
to retake or order the return of an offender who has committed 3 significant violations.

 Amendment to Rule 5.105 clarifies the sending state has 30 calendar days to retake an
offender after the offender is in custody on the sending state’s warrant and is being held
solely on the sending state’s warrant.

 Amendment to Rule 5.108 clarifies that any criminal conviction is sufficient evidence of
probable cause.

 Amendment to Rule 6.103 provides discretion for penalties imposed on a defaulting state.

Among the most important rule interpretations are:

 Rule 5.108 (d) permits the use of 2-way video closed circuit television during probable
cause hearings where determined by the hearing officer to be necessary to protect a
witness from harm. See, Advisory Opinion 5-2012

 Definition of ‘relocate’ does not appear to limit the cumulative number of days within
which an offender may be permitted to remain in another state. See, Advisory Opinion 4-
2012

 When an offender’s supervision was never transferred to a receiving state under the
Compact and no application for transfer or waiver ever occurred, neither the Compact nor
the ICAOS rules apply. See, Advisory Opinion 3-2012

 Neither the acceptance of a request for transfer by a receiving state nor approval of
reporting instructions can be the basis for either the determination of whether the sending
state will release an offender from a correctional facility or the planned release date. See,
Advisory Opinion 2-2012

 Persons ‘acquitted’ by reason of insanity under the New Jersey ‘Carter-Krol’ statute are
not eligible for interstate transfer of supervision under the Compact. See, Advisory
Opinion 1-2012

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 INTRODUCTION
INTERSTATE COMPACT LAW -- A HISTORICAL PERSPECTIVE

Interstate compacts are rooted in the nation’s colonial past where agreements similar to
modern compacts were utilized to resolve inter-colonial disputes, particularly boundary disputes.
The colonies and crown employed a process by which colonial disputes would be negotiated and
submitted to the crown through the Privy Council for final resolution. This created a long
tradition of resolving state disputes through negotiation followed by submission of the proposed
resolution to a central authority for its concurrence. This “compact process” we now have was
formalized in the Articles of Confederation. Article VI provided that, “No two or more states
shall enter into any treaty, confederation or alliance whatever without the consent of the United
States in Congress assembled, specifying accurately the purposes for which the same is to be
entered into, and how long it shall continue.”

The founders were so concerned over managing interstate relations and the creation of
powerful political and regional allegiances that they barred states from entering into “any treaty,
confederation or alliance whatever” without the approval of Congress. The founders also
constructed an elaborate scheme for resolving interstate disputes. Under Article IX of the
Articles of Confederation, Congress was to “be the last resort on appeal in all disputes and
differences now subsisting or that hereafter may arise between two or more States concerning
boundary, jurisdiction or any other causes whatever[.]”

The concern over unregulated interstate cooperation resulted in the adoption of the
“compact clause” in Article I, sect. 10, cl. 3 of the U.S. Constitution, which is a carry-over from
the Articles of Confederation. That clause provides that “No state shall, without the consent of
Congress…enter into any agreement or compact with another state, or with a foreign power[.]”
In effect, the Constitution does not so much authorize states to enter into compacts as it bars
states from entering into compacts absent congressional consent. However, unlike the Articles
of Confederation in which interstate disputes were resolved by Congress, the Constitution vests
ultimate resolution of interstate disputes in the Supreme Court either under its original
jurisdiction or through the appellate process. For a thorough discussion on the history of
interstate compacts from their origins to the present, see generally, Michael L. Buenger &
Richard L. Masters, The Interstate Compact on Adult Offender Supervision: Using Old Tools to
Solve New Problems, 9 ROGER WILLIAMS U. L. REV. 71 (2003), also cited in Doe v. Pennsylvania
Board of Probation & Parole, 513 F.3d 95, 105, fn7 (2008). See also, Felix Frankfurter & James M.
Landis, The Compact Clause of the Constitution – A Study in Interstate Adjustments, 34 YALE
L.J. 685 (1925); CAROLINE BROUN, MICHAEL L. BUENGER, MICHAEL H. MCCABE & RICHARD L.
MASTERS, THE EVOLVING USE AND THE CHANGING NATURE OF INTERSTATE COMPACTS; A
PRACTITIONER’S GUIDE (ABA Publishing 2007).

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 QUICK REFERENCE GUIDE
This is intended to be a quick reference guide to give guidance on important Compact issues. If
greater discussion or guidance would be helpful please refer to the bench book which is much
more thorough. Advisory Opinions are also available to address some frequently asked
questions. Please check with the National Office for further information as needed.

MODEL INTERSTATE COMPACT FOR THE

SUPERVISION OF ADULT OFFENDERS

Article XIX
Binding Effect of Compact and Other Laws

Section A Other Laws

Nothing herein prevents the enforcement of any other law of a Compacting
state that is not inconsistent with this Compact.
All Compacting states’ laws conflicting with this Compact are superseded to
the extent of the conflict.

Section B Binding Effect of the Compact

All lawful actions of the Interstate Commission, including all Rules and By-
laws promulgated by the Interstate Commission, are binding upon the
Compacting states.

The requisite number of states approved the Interstate Compact on Adult Offender Supervision
(“ICAOS”) in 2002.
 Compacts such as ICAOS have the authority of federal law and supersede any state law to
the contrary. All courts and administrative bodies must give due effect to a compact.

 The ICAOS authorizes the adoption of rules by the Interstate Commission for Adult Offender
Supervision. These rules carry the weight of federal law.

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Judicial Enforcement (See Section 2.12.2)

All courts and executive agencies in each member state must enforce the Compact and
take all necessary actions to effectuate its purposes. See, Art. IX, § A.

 The ICAOS allows for enforcement of the Compact on member states for noncompliance
by:
o Fines and fees;
o Remedial training and technical assistance;
o Legal enforcement;
o Suspension or termination of membership in the Compact.

The Compact and its Implications for the Courts

The rules of the Commission are applicable on states by the terms of the Compact. Rules
adopted by the Commission have the force and effect of statutory law and all courts and
executive agencies must take all necessary actions to enforce their application. See, Art.
V. See also Scott vs. Virginia, infra.; State v. DeJesus, 953 A.2d 45 (Conn. App. 2008)
The failure of state, judicial, or executive branch officials to comply with the terms of
Compact and its rules would result in the state defaulting on its contractual obligations
under the Compact and can lead the Commission to take remedial or punitive action
against a state, including suit in federal court for injunctive relief. See, Art. VIX, § A.

 ICAOS does not impact the judicial sentencing of an offender, only how the offender is
supervised over state lines.

Offenders Covered by the Compact (See Section 3.2.1.1 & Referenced Flow Charts)

An adult offender does not have to be in formal probation or parole status to qualify for
transfers and supervision under the ICAOS. This broad definition of “offender” was
intended to correct problems under the old Compact.

To initially qualify for transfer of supervision under the ICAOS, the offender must:
(1) be subject to some form of community supervision, including supervision by a
court, paroling authority, probation authority, treatment authority or anyone or
agency acting in such a capacity or under contract to provide supervision
services; and
(2) have committed a covered offense as defined by the rules.

 Eligibility for Transfer includes:

o Sentence or release from incarceration with community-based supervision and the

offender is:

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  A felon, or
 misdemeanant whose sentence includes one year or more of supervision
and the underlying offense includes one or more of following:
(1) an offense in which a person has incurred direct or threatened physical
or psychological harm;
(2) an offense that involves the use or possession of a firearm;
(3) a second or subsequent misdemeanor offense of driving while impaired
by drugs or alcohol;
(4) a sexual offense that requires the offender to register as a sex offender
in the sending state.

Eligibility of Offenders, Residency Requirements (See Section 3.2.1.2)

Transfer of offenders falls in one of two categories:

(1) mandatory acceptance transfers and
(2) discretionary acceptance transfers.

The authority to approve an offender for out of state placement lies exclusively within the
discretion of the sending state. (Rule 3.101) An offender has no constitutional right to
transfer. Rule 3.101 creates an obligation on a receiving state to accept an offender for
supervision, once the sending state has made a determination to transfer supervision.
The sending state’s denial of the transfer of supervision would appear absolute and
entitled to deference by the courts.

Rule 3.101
At the discretion of the sending state, an offender shall be eligible for transfer of
supervision to a receiving state under the Compact, and the receiving state shall accept
transfer, if the offender:

(a) has more than 90 days or an indefinite period of supervision remaining at the
time the sending state transmits the transfer request; and
(b) has a valid plan of supervision; and
(c) is in substantial compliance with the terms of supervision in the sending
state; and
(d) is a resident of the receiving state; or
(e) (1) has resident family in the receiving state who have indicated a
willingness and ability to assist as specified in the plan of supervision; and
(2) can obtain employment in the receiving state or has a means of
support.

 Discretionary Acceptance – The receiving state may accept the transfer of any other
eligible offenders not covered by Rule 3.101 if so requested by a sending state.
A discretionary transfer requires the consent of both sending and receiving states and the
failure to obtain such consent prohibits the transfer of supervision.

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 A receiving state can consent to accept supervision of an offender who does not meet the
mandatory acceptance criteria. However, the acceptance of supervision under the
circumstances other than those above is discretionary with the receiving state.

A discretionary transfer requires the consent of both sending and receiving states and the
failure to obtain such consent prohibits the transfer of supervision.

 Imposing Special Conditions

o Either the sending or receiving state can impose special conditions.

o Special conditions must be reasonably related to the goal of offender rehabilitation

and/or promotion of public/community safety. Refer to 3.3.2.

o Receiving state may impose those special conditions that it would otherwise have
authority to impose on in-state offenders.

o Special conditions imposed by a receiving state can only be imposed after acceptance
of an offender for supervision and cannot be such as to interfere with the orderly
transfer of offenders subject to the Compact or act to create unreasonable barriers to
the interstate movement of offenders subject to the Compact.

 Acceptance of Transfer – Of particular concern to judges may be the investigation period.

Under Rule 3.104 a receiving state has up to 45 days to investigate and respond to a
sending state’s request to transfer.

With limited exceptions, a sending state shall not allow an offender to relocate without an
explicit acceptance of the offender by the receiving state. (See, Rule 2.110.) In the
absence of an exception provided in the rules, allowing the offender to relocate prior to
the acceptance may trigger two events:
(1) the sending state shall order the offender to return to the sending state; and
(2) The receiving state can reject the placement. If the placement is rejected,
the sending state would have to reinitiate the transfer request. Practically
this means that no court or paroling authority may authorize an offender to
relocate before acceptance by the receiving state, unless the transfer or
supervision is accomplished pursuant to an expedited transfer under Rule
3.106 or under Rule 3.103.

(1) Supervision in receiving state

o A receiving state must supervise an offender transferred under the Interstate

Compact in a manner determined by the receiving state and consistent with the
supervision of other similar offenders sentenced in the receiving state.

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 o A receiving state must supervise an offender transferred under the Interstate
Compact for a length of time determined by the sending state.

As a precondition to transfer, the offender must agree to waive extradition from any state
to which the offender may have absconded while under supervision in the receiving state.
States under the Compact waive all legal requirements regarding extradition of offenders
who are fugitives from justice. (Rule 3.109)

Persons Not Covered by the ICAOS (See Section 3.2.1.5)

Offenders with three months or less of supervision and offenders not subject to some
form of community supervision are generally free to travel. This is because the duration
of supervision does not warrant further consideration in the receiving state or because the
nature of the offense is such that a court did not see continuing supervision a necessary
element of the sentence.

Sentencing Considerations (See Section 3.2.1.6)

From the judiciary’s perspective the relevant inquiry in determining whether ICAOS is a
factor centers on two considerations: (1) what did the court do and, (2) was the end
consequence of the courts action community supervision. Therefore, ICAOS has
application in a broad range of cases and dispositions beyond traditional conviction
followed by probation.

Deferred Sentencing (See Section 3.2.1.6.1 & Referenced Flow Charts)

In addition to traditional cases where an offender is formally adjudicated and placed on

probation, the ICAOS also applies in so-called “suspended sentencing,” “suspended
adjudication,” and deferred sentencing contexts. (Rule 2.106) The operative
consideration for purposes of Rule 2.106 is whether the court has, as a condition
precedent, made some finding that the offender has indeed committed the offense
charged.

A sentence that essentially states “go and commit no other offense” and that does not
include supervision and reporting requirements does not appear to create a “supervision”
relationship between the offender and the court sufficient to trigger the ICAOS.
However, to the extent that reporting requirements may be imposed on the offender, even
if only to the court, that offender may be subject to the ICAOS.

Deferred Prosecution (See Section 3.2.1.6.2)

At issue in deferred prosecutions is whether the offender is covered by the ICAOS

because there is no conviction. However, the Commission has interpreted its rules to
apply to such offenders. See, Advisory Opinion 6-2005.

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 An offender in a deferred prosecution program that includes some of these conditions:
(1) offender must make material and binding factual admissions;
(2) if violation occurs the offender is returned to court in jeopardy of
entry of conviction;
(3) offenders as part of plea had to waive material rights to future court
proceedings, would be subject to the compact. Offenders not
required to meet some of the foregoing requirements is not covered
by the compact.

Out-of-State Treatment (See Section 3.2.2.1)

Treatment in lieu of supervision or treatment as supervision.

In such cases courts may be inclined to defer sentence and place an offender on “bench
probation.” Successful completion of the treatment program is generally a condition of
the supervision program. The difficulties arise with these programs when an offender in
one state is required to enroll in a treatment program only available in another state and
whether such situations constitute circumstances that would trigger the ICAOS.

The Commission has determined that an offender who was required to participate in a
treatment program in another state was subject to the Compact. (Advisory Opinion 3-
2005)

Courts should be exceedingly cautious in sentencing offenders, particularly high-risk

offenders, to treatment programs in other states as a means of circumventing the ICAOS.
Such sentences may trigger the ICAOS putting the offender in an impossible situation of
being required to complete the treatment program but not being able to transfer because
the receiving state has declined the case.

Time of Transfer (See Section 3.2.2.4)

To the extent that an offender is eligible to transfer under the Compact, a court does not
have authority to order the offender to the receiving state prior to acceptance.

Assuming the offender is eligible for transfer pursuant to Rule 3.101, several
Commission rules governing transfers apply and should be of particular interest to the
courts. Rule 3.102 requires that a sending state send to the receiving state an application
for transfer of supervision and all pertinent information prior to allowing the offender to
leave the sending state. Rule 3.102 also prohibits any travel other than employment
travel to a receiving state prior to the receiving state’s reply to the request for transfer
unless the offender is granted expedited reporting instructions per Rule 3.103 or 3.106.

The receiving state has 45 calendar days to undertake an investigation and review the
proposed transfer (Rule 3.104). Failure of the court personnel to transmit all necessary
information to their Interstate Compact Office may substantially delay the processing of
the transfer request.

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Expedited Transfers (See Section 3.2.2.5)

Expedited transfers are allowed on a “pending acceptance” basis. To qualify for

expedited transfer the sending and receiving state must agree that an emergency exists
justifying such a transfer. (Rule 3.106)

Reporting Instructions for Probationers Living in the Receiving State at the Time of
Sentencing (See Section 3.2.2.7)

Rule 3.103 allows an offender who is living in the receiving state at the time of
sentencing to receive reporting instructions pending the investigation of the transfer
request. The rule only applies to offenders who are living in the receiving state at the
time of sentencing.

Transfer of Supervision of Sex Offenders (See Section 3.2.2.8)

Rule 3.101-3 and the addition to the ICAOS Rule of a definition of “sex offender” (See
Rule 1.101) address special considerations in transferring supervision of individuals who
comprise this offender population. This rule specifically restricts travel for qualifying
individuals pending a transfer request. It also promotes comprehensive information
sharing to determine supervision and risk levels in a receiving state. In addition, these
rules provide exceptions for probationers meeting criteria of Rule 3.103, denying travel
permits without reporting instructions from a receiving state as well as allowing a
receiving state to deny such a request if a proposed residence is deemed invalid due to
existing state law or policy.

Entities Covered by the ICAOS (See Section 3.2.2.9)

The requirements of the ICAOS extend to courts, probation authorities, paroling

authorities and other criminal justice agencies having responsibility for supervising
offenders and to those operating under contract with such entities. The requirement
would also extend to any entity acting on behalf of courts or corrections authorities,
including private contractors. See Paull v. Park County et al., 218 P.3d 1198 (Mont. S.
Ct. 2009).

General Considerations (See Section 3.3.2.1)

The receiving state can only impose those special conditions that it would have imposed
on similar in-state offenders See, Rule 4.103(a). A receiving state cannot impose special
conditions on out-of-state offenders as a means of avoiding its general obligations under
the compact nor may a receiving state preemptively impose special conditions prior to
acceptance as a means or preventing a transfer. See, ICAOS v. Tennessee Bd. of
Probation and Parole; also Munsch v. Evans, 2012 WL 528135 (E.D. N.Y. 2012); State v.
Warner, 760 N.W.2d 209 (Iowa Ct. App. 2008).

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 A Sending state can impose a special condition on an offender as a condition of
transferring supervision. However, the receiving state must be given an opportunity to
inform the sending state of its inability to meet a special condition. The receiving state’s
inability to enforce a special condition requires the sending state to either: (1) withdraw
the special condition and allow the offender to relocate to the receiving state, or (2)
withdraw the transfer request and continue to supervise the offender in the sending state.

Limitations on Special Conditions (See Section 3.3.2.3)

Notwithstanding the authority of the sending and receiving state to impose special
conditions on an offender, several courts have determined that certain special conditions,
such as banishment from a geographical area, are not appropriate.

Sex Offender Registration and Exclusion Zones (See Section 3.3.2.4)

Courts have generally upheld sex offender registration requirements for offenders whose
supervision is transferred under an interstate compact so long as such registration
requirements are not discriminatory. Thus, a receiving state may impose sex offender
registration requirements so long as they are the same as imposed on in-state offenders.

Exclusion zones are arguably legal so long as the burden imposed applies equally to in-
state and out-of-state offenders.

Pre-Acceptance Testing (See Section 3.3.2.5)

An offender who is otherwise eligible for transfer under Rule 3.101 (mandatory transfer)
may not be required to submit to psychological testing by the receiving state as a
condition of acceptance of transfer.

Summary (See Section 3.3.2.7)

In sum, while both the sending state and receiving state possess authority to impose
special condition as an element of probation, parole, or transfer under the ICAOS such
conditions must
(1) be reasonably related to the underlying offenses,
(2) aid in offender rehabilitation,
(3) not unduly interfere with fundamental liberty interests, including the right to
meaningful employment, and
(4) be designed to promote community safety.

Restitution (See Section 3.3.3)

ICAOS rules are silent on matters of restitution since it is a sentencing matter. Therefore,
it is a matter governed entirely by the sending state. However, Rule 4.108 clearly
relieves the receiving state of the obligation to collect fines, fees, and costs of restitution.
The sending state retains exclusive authority – and the obligation – to manage the

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 financial portion of an offender’s sentence. The receiving state’s only obligation is to
notify the offender of a default.

Failure to meet financial obligations is a breach of the supervision agreement and can
result in the sending state retaking the offender and revoking probation or parole.

Fees (See Section 3.3.4)

Rule 4.107 authorizes the collection of fees from offenders subject to the compact.
Pursuant to Rule 4.107 (a), the sending state may impose a transfer application fee on an
offender. Pursuant to Rule 4.107 (b), the receiving state may impose a supervision fee on
an offender. See Holloway v. Cline, 154 P.3d 557 (Kan. App. 2007) (imposition of a
$25.00 per month interstate compact supervision fee without providing a hearing does not
deprive a compact offender of due process of law).

A sending state is not prohibited from imposing other fees on offenders so long as those
fees are not related to supervision. Collection of fees is not the responsibility of the
receiving state.

Continuing Jurisdiction over Offender as Between the Sending & Receiving States (See
Section 3.3.5)

The transfer of an offender’s supervision pursuant to an interstate compact does not

deprive the sending state of jurisdiction over the offender, unless it is clear from the
record that the sending state intended to relinquish jurisdiction.

The Compact does not give a receiving state the authority to revoke the probation or
parole imposed by authorities in a sending state. A receiving state may, independent of
the sending state, initiate criminal proceedings against offenders who commit crimes
while in the state.

HIPAA (See Section 3.3.6)

Persons subject to transfer under ICAOS may have a protected privacy interest in certain
health care information. However HIPAA specifically provides a law enforcement
exception to the requirement that a written release be obtained from an offender prior to
disclosure of protected health care information.

Status of Offenders Subject to ICAOS (See Section 4.1)

Courts have held that because probation, parole or conditional pardon is not something an
offender can demand but rather extends no further than the condition imposed, revocation
of the privilege generally does not deprive an offender of any legal right. Rather,
revocation merely returns the offender to the same status enjoyed before probation,
parole or conditional pardon was granted.

15
 It should also be noted that although an offender does not have a right to supervised
release, when granted, certain liberty interests attach such that an offender is entitled to
some minimum due process prior to revocation. See, Morrissey v. Brewer. 408 U.S. 471
(1972).

A person’s status as an out-of-state offender does not mean that such person possesses no
constitutional rights. Offenders may have some minimum rights of due process in limited
circumstances.

Waiver of Extradition under the ICAOS (See Section 4.2.1)

Principal among the provisions of the ICAOS is the member states’ waiver of formal
extradition requirements for return of offenders who violate the terms and condition of
their supervision. The ICAOS specifically provides that:

The compacting states recognize that there is no “right” of any offender to live in another
state and that duly accredited officers of a sending state may at all times enter a receiving
state and there apprehend and retake any offender under supervision subject to the
provisions of this Compact and By-laws and Rules promulgated hereunder.

Additionally, pursuant to Rule 3.109 an offender is required to waive extradition as a

condition of transferring supervision. The rule provides:

(a) An offender will execute a waiver of extradition from any state

to which the offender may abscond while under supervision in
the receiving state.

(b) States that are parties to this compact waive all legal
requirements to extradition of offenders who are fugitives from
justice.

Violation Reports (See Section 4.3)

A receiving state is obligated to report to authorities in the sending state within 30

calendar days of the discovery of a significant violation of the terms and conditions of
supervision. A “significant violation” is defined in Rule 1.101 as a violation that, if it
had occurred in the receiving state, would constitute grounds for revocation.

However, the rule indicates that “significant violation” is determined under the laws of
the receiving state. Moreover, a sending state may be required to retake an offender for
violations that, had they occurred in the sending state, may not have constituted grounds
for revocation.

16
Retaking (See Section 4.4)

With limited exceptions, the decision to retake or order the return of an offender rests
solely in the discretion of the sending state. However, if an offender has been charged
with a subsequent felony or violent offense in the receiving state, the sending state may
not retake the offender until the criminal charges are dismissed, sentence has been
satisfied or the offender is released on supervision, unless the sending and receiving
states mutually agree to the retaking or return.

The discretion of the sending state to retake an offender is limited by several factors.
(1) A sending state must retake an offender upon request of the receiving state or
subsequent receiving state and conviction for a felony offense or violent
crime. See Rule 5.102. The sending state can retake only after the offender
completes any term of incarceration or is placed on probation.
(2) A sending state is required to retake an offender upon request of the receiving
state and showing that the offender has committed three or more significant
violations arising from separate incidents that establish a pattern of non-
compliance with the terms of supervision. It is important to note that the
gravity of the violation is measured by the standards of the receiving state. So
if the violation meets the revocation standards of the receiving state, the
sending state is obligated to retake.
(3) A sending state must retake an offender who is found to be an absconder.

Once the authority of the sending state’s officers is established and due process
requirements met, authorities in the receiving state may not prevent, interfere with or
otherwise hinder the transportation of the offender back to the sending state. See, Rule
5.109.

Post Transfer Hearing Requirements (See Section 4.4.3)

General Considerations

Conditional release of offenders is a privilege not guaranteed by the Constitution; it is an

act of grace. Offenders do however enjoy some due process particularly with regard to
revocation, which impacts the retaking process. Several U.S. Supreme Court cases
outline due process rights for offenders in a violation context. See, Morrissey v. Brewer,
408 U.S. 471 (1972), (parolee entitled to revocation hearing); Gagnon v. Scarpelli, 411
U.S. 778 (1973) (probationer entitled to a revocation hearing). The U.S. Supreme Court
has acknowledged that while some rights are afforded, they are not entitled to the “full
panoply of rights” enjoyed by defendants in a pre-trial status.

Right to Counsel

Under the rules of the Commission a state is not specifically obligated to provide counsel
in circumstances of revocation or retaking. However, particularly with regard to
revocation proceedings, a state should consider providing counsel to an indigent offender

17
 if he or she may have difficulty in presenting their version of their case. Gagnon, supra at
788.

The requirement to provide counsel would generally not be required in the context where
the offender is being retaken and the sending state has no intention of revoking
conditional release based on violations that occurred in the receiving state. No liberty
interest is at stake because the offender has no right to be supervised in another state.

Specific Considerations for Probable Cause Hearings under ICAOS (See Section 4.4.3.3)

It is important to emphasize the distinction between retaking that may result in revocation
and retaking that will not result in revocation. Where there is no danger that the sending
state will revoke the offender, the offender is not entitled to a probable cause hearing.
There is no right to be supervised in another state.

Where the retaking of an offender may result in revocation of conditional release by the
sending state, the offender is entitled to the basic due process considerations that are the
foundation of the Supreme Court’s decisions in Morrissey and Gagnon and the rules of
the Commission.

An offender subject to retaking for violation of conditions of supervision that may result
in revocation shall be afforded the opportunity for a probable cause hearing in the
receiving state consistent with due process requirements.

An offender must be afforded a probable cause hearing where retaking is for other than
the commission of a new criminal offense and revocation of parole or probation by the
sending state is likely. An offender may waive this hearing only if willing to admit to one
or more significant violations of the terms and conditions of supervision. See Rule
5.108(b). The purpose for the hearing is to (1) test the sufficiency and evidence of the
alleged violations and (2) to make a record for the sending state to use in subsequent
revocation proceedings. One of the concerns in Gagnon and Morrissey was geographical
proximity to the location of the offender’s alleged violations of supervision. The rule
codifies the requirements of these cases and clearly provides that an offender shall be
afforded the opportunity for a probable cause hearing before a neutral and detached
hearing officer in or reasonably near the place where the alleged violation occurred.

If an offender is entitled to a probable cause hearing Rule 5.108(d) defines the basis
rights of the offender. The offender is entitled at a minimum, to
(1) written notice of the alleged violations of the conditions of supervision,
(2) disclosure of non-privileged or non-confidential evidence,
(3) the opportunity to be heard in person and present witnesses and documentary
evidence, and
(4) the opportunity to confront and cross-examine witnesses. As discussed earlier
the offender may also be entitled to the assistance of counsel. These Rule

18
 5.108 requirements are consistent with the minimum due process requirements
established in Morrissey.

The probable cause hearing required by Rule 5.108 need not be a full “judicial”
proceeding. A variety of persons, such as a parole officer, can fulfill the requirement of a
“neutral and detached” person for purposes of the probable cause hearing. Due process
requires only that some person other than the one initially dealing with the case conduct
the hearing. The hearing officer must be impartial and objective.

Rule 5.108(e) requires the receiving state to prepare a written report of the hearing within
10 business days and to transmit the report and any evidence or record from the hearing
to the sending state. The report must contain
(1) the time, date and location of the hearing,
(2) the parties present at the hearing, and
(3) a concise summary of the testimony and evidence relied upon.
Under Rule 5.108(e) even if the offender is exonerated after the probable cause hearing
the receiving state must transmit a report to the sending state.

At the conclusion of a hearing, the presiding official must determine whether probable
cause exists to believe that the offender committed the alleged violations. However, a
determination made in a proceeding for mandatory retaking must be made in view of
Rule 5.103(a). That rule provides in part, that officials in the receiving state must show
“that the offender committed three or more significant violations arising from separate
incidents that establish a pattern of non-compliance.

Rule 5.103 requires a hearing officer to determine that each of the three or more
violations is individually – not cumulatively – a significant violation.

If the hearing is based on other than mandatory retaking, e.g., violations of a special
condition imposed by the receiving or sending state then two considerations arise. First,
the hearing officer must determine whether the offender violated the terms and conditions
of supervision, e.g., the offender indeed failed to comply with a special condition. If so
determined then the hearing officer must determine whether the violation is of a
sufficient nature that it would typically result in revocation in the receiving state. If not
retaking is not warranted under this rule.

If the hearing officer determines that probable cause exists to believe that the offender
has committed the alleged violations, the receiving state must detain the offender in
custody pending the decision in the sending state. Within 15 business days of receipt of
the probable cause hearing report the sending state must notify the receiving state of its
intent to
(1) retake the offender, or
(2) take other action. See, Rule 5.108(f), the offender cannot be admitted
to bail or otherwise released from custody. See, Rule 5.111.

19
 In sum, offenders subject to retaking are entitled to an on-site probable cause hearing in
circumstances as mandated by the Commission’s rules. The right cannot be waived
unless accompanied by the offender’s admission of having committed one or more
significant violation(s). Rule 5.108. See Sanders v. Pennsylvania Board of Probation &
Parole, 958 A.2d 582, 585-86 (Pa. 2008)

Bail Pending Return (See Section 4.4.4)

An offender subject to retaking proceedings has no right to bail. Rule 5.111 specifically
prohibits any court or paroling authority in any state to admit an offender to bail pending
completion of the retaking process, individual state law to the contrary notwithstanding.
Given that the ICAOS mandates that the roles of the Commission must be afforded
standing as statutory law in every member state, the no bail provision of Rule 5.111 has
the same authority as if the rule was promulgated by that state’s legislature.

Arrest of Absconders (See Section 4.6)

Upon receipt of a violation report for an absconding offender, a sending state is required
to issue a national arrest warrant and file a detainer with the holding facility when the
offender is in custody. If the absconding offender is apprehended in the receiving state,
the receiving state shall, upon request by the sending state, conduct a probable cause
hearing as provided in Rule 5.108. See Rule 5.103-1

Under Rule 5.103, sending states are required to issue nationwide arrest warrants for
absconders who fail to return to the sending state within 10 business days. The arrest
warrant requirement applies in one circumstance;
(1) the failure of an offender to return to the sending state when ordered to
do so based on three or more significant violations of the terms and
conditions of their supervision in the receiving state. Rule 5.103(b).

Liability and Immunity Considerations for Judicial Officers and Employees

Liability Considerations Under 42.U.S.C. § 1983 (See Section 5.2)

42 U.S.C. § 1983 creates a state and federal cause of action for damages arising out of the
acts of state officials that violate an individual’s civil rights.

At least two U.S. Circuit Courts of Appeal have held that neither ICAOS nor the
precursor compact (IPPC) create a federally enforceable right under 42 U.S.C. § 1983.
See M.F. v. State of New York Executive Dept. Div. of Parole, 640 F. 3d 491, 75 A.L.R.
6th 691 ( 2d Cir. 2011); Doe v. Pennsylvania Board of Probation & Parole, 513 F.3d 95,
105 (3rd Cir. 2008)

Immunity Waiver (See Section 5.5)

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 A state official who violates federal law is generally stripped of official or representative
character and may be personally liable for their conduct; a state cannot cloak an officer in
its sovereign immunity. Ex Parte Young, 209 U.S. 123 (1908). Sovereign immunity
does no extend to the personal actions of state officials.

Types of Acts Under ICAOS (See Section 5.6)

Rule 4.101 mandates that a receiving state must provide supervision in a manner
determined by the receiving state and consistent with the supervision of other similar
offenders. This area is one in which litigation could arise claiming a failure to provide
“like” supervision.

Judicial Immunity (See Section 5.7)

Virtually any decision of a judge that results from the judicial process is protected by
judicial immunity. Parole boards usually have quasi-judicial immunity. However, quasi-
judicial immunity does not extend to probation or parole officers, investigating suspected
parole violations, ordering an arrest, or recommending parole revocation proceedings be
initiated against him. These actions are not entitled to immunity.

Generally, probation and parole officers possess absolute judicial immunity where their
actions are integral to the judicial process. Several courts have held that actions such as
supervision – distinguished from investigation – are administrative in nature and not a
judicial function entitled to judicial immunity.

Qualified Immunity (See Section 5.8)

A state official may be covered by qualified immunity where they

(1) carry out a statutory duty,
(2) act according to procedures dictated by statute and superiors, and
(3) act reasonably.
Government officials performing discretionary functions are entitled to qualified
immunity unless they violate clearly established statutory or constitutional rights of
which a reasonable person would have known.

Parole and Probation officers may enjoy qualified immunity if their actions are in
furtherance of a statutory duty and in substantial compliance with relevant statutory or
regulatory guidelines.

Negligent Supervision (See Section 5.9)

Some factors a court may consider in determining whether a state official is liable for
negligent supervision are:

(A) Misconduct by a non-policymaking employee that is the result of training or

supervision “so reckless or grossly negligent” that misconduct was “almost

21
 inevitable” or “substantially certain to result.” Vinson v. Campbell County Fiscal
Court, 820 F.2d 194 (6th Cir. 1987).

(B) The existence of a special custodial or other relationship created or assumed by

the state in respect of particular persons. A “right/duty” relationship may arise
with the respect to persons in state’s custody or subject to its effective control and
whom the state knows to be a specific risk of harm to themselves or others.
Additionally, state officials may be liable to the extent that their conduct creates a
danger from which they fail to adequately protect the public.

(C) The foresee ability of an offender’s actions and the foresee ability of the harm
those actions may create. Liability may exist under the “state created danger”
theory, when that danger is foreseeable and direct.

(D) Negligent hiring and supervision in cases where the employer’s direct negligence
in hiring or retaining an incompetent employee when the employer knows or by
the exercise of reasonable care should have known was incompetent or unfit,
thereby creating an unreasonable risk of harm to others.

The obligation of state officials to fulfill ministerial acts, which are not open to
discretion, generally gives rise to liability. For example, an officer can be held liable for
failing to execute the arrest of a probationer or parolee when there is no question that
such an act should be done.

22
 CHAPTER 1

GENERAL LAW OF INTERSTATE COMPACTS

1.1 Status of Interstate Compacts

Interstate compacts are formal agreements between states that have the characteristics of
both statutory law and contractual agreements. They are enacted by state legislatures adopting
reciprocal laws that substantively mirror one another. Compacts are considered contracts
because of the manner in which they are enacted. There is an offer (the presentation of a
reciprocal law to state legislatures), acceptance (the actual enactment of the law) and
consideration (the settlement of a dispute or creation of a regulatory scheme). At the federal
level, the enforcement of compacts is controlled by the Contracts Clause of the Federal
Constitution and, to a lesser extent, by the Supremacy Clause, depending on the substantive
nature of the compact and its impact on the basic principles of federalism. Texas v. New
Mexico, 462 U.S. 554, 564 (1987); Energy Solutions, LLC v. State of Utah et al., infra. at §1.8;
also Doe v. Pennsylvania Board of Probation & Parole 513 F.3d 95105-106 (3rd Cir. 2008).

Although compacts historically were used to settle boundary disputes, the more modern
use of compacts has been in the area of regulating interstate matters. Beginning in 1921 with the
adoption of the New York-New Jersey Port Authority Compact, states have adopted a large
number of compacts regulating matters as diverse as water use, land development and the
environment, transportation systems, regional economic development, crime control, and child
welfare. Today there are some 200 compacts in place, many of which now fall into the category
of “regulatory compacts” or “administrative compacts” similar to the Interstate Compact for
Adult Offender Supervision (“ICAOS”). Consequently, the ICAOS is part of a long and
accelerating tradition of using interstate compacts to solve a number of multilateral state issues
beyond boundary matters. Compacts are aptly described as instruments that regulate matters that
are sub-federal, supra-state in nature. See Hubble v. Bi-State Development Agency of the
Illinois-Missouri Metropolitan District, 938 N.E.2d 483,(Ill 2010).(“The U.S. Constitution
provides mechanisms to address ‘matters that are clearly beyond the realm of individual states’
authority but which, due to their nature, may not be within the immediate purview of the federal
government or easily resolved through a purely federal response.’ quoting C. Broun, M.
Buenger, M. McCabe, & R. Masters, The Evolving Use and the Changing Role of Interstate
Compacts: A Practitioner’s Guide, n.2 2006.” An interstate compact or a federal law becomes
the only mechanisms by which interstate matters are bindingly resolved. The Congress or a
federal regulatory agency acts sometimes on behalf of, and not infrequently without regard for,
state interests. Therefore, compacts are the only formal mechanisms by which individual states
can reach beyond their borders and collectively regulate the conduct of other states and the
citizens of other states. See Colorado v. Kansas, 320 U.S. 383, 392 (1943) (Interstate disputes
“may appropriately be composed by negotiation and agreement, pursuant to the compact clause
of the federal constitution. We say . . . that such mutual accommodation and agreement should,
if possible, be the medium of settlement instead of invocation of our adjudicatory power.”). See
also Tarrant Regional Water District v. Herrmann, __U.S. _, 133 S Ct 2120 (2013).

23
1.2 Compacts Are Not Uniform Laws

Compacts are not uniform law as that term is typically construed and applied by the
courts. Compacts, unlike laws such as the Uniform Commercial Code or the Uniform Criminal
Extradition and Rendition Act, are not subject to unilateral amendment by a state. Once adopted,
a state cannot unilaterally repeal the compact unless the language of the agreement authorizes
such an act, and even then only as provided in the agreement. West Virginia ex rel. Dyer v.
Sims, 341 U.S. 22 (1951). States cannot unilaterally change the substance of the agreement; the
terms and conditions of the states’ agreement define the obligations of each member state and the
effect a compact may have on individual state law. For example, in Nebraska v. Cent. Interstate
Low-Level Radioactive Waste Comm’n, 207 F.3d 1021, 1026 (8th Cir. 2000), the court held that
Nebraska did not have the unilateral right to exercise a veto over actions of an interstate
commission created by a compact. Specifically the court held that, “Further, when enacted, a
compact constitutes not only law, but a contract which may not be amended, modified, or
otherwise altered without the consent of all parties. It, therefore, appears settled that one party
may not enact legislation which would impose burdens upon the compact absent the concurrence
of the other signatories.” Where states retain authority to unilaterally alter a reciprocal
agreement, the agreement will generally not rise to the level of a compact enforceable as a
contract between the states. See, Northeast Bancorp v. Bd. of Governors of Fed. Reserve Sys.,
472 U.S. 159, 175 (1985). No state can act in conflict with the terms of the compact as the
compact defines the members’ multilateral obligations. See, U.S. Trust Co. v. New Jersey, 431
U.S. 1 (1977) (contract clause applied to state’s obligation to bondholders in connection with
interstate compact); Wroblewski v. Commonwealth, 809 A.2d 247 (Pa. 2002) (terms of an
interstate compact contain the substantive obligations of the parties as is the case with all
contracts; Contracts Clause of the Federal Constitution protects compacts from impairment by
the states; although a state cannot be bound by a compact to which it has not consented, an
interstate compact supersedes prior statutes of signatory states and takes precedence over
subsequent statutes of signatory states). Compacts stand as probably the only exception to the
general rule that a sitting state legislature cannot irrevocably bind future state legislatures. See
generally, CAROLINE N. BROUN, MICHAEL L. BUENGER, MICHAEL H. MCCABE & RICHARD L.
MASTERS, THE EVOLVING USE AND THE CHANGING ROLE OF INTERSTATE COMPACTS, A
PRACTITIONER’S GUIDE § 1.2.2 (ABA Publishing, 2007).

Therefore, compacts have standing as both binding state law and as a contract between
the member states. A state law that contradicts or conflicts with a compact is unenforceable,
absent some reserve of power to the member states. See, McComb v. Wambaugh, 934 F.2d 474,
479 (3d Cir. 1991) (“Having entered into a contract, a participant state may not unilaterally
change its terms. A compact also takes precedence over statutory law in member states.”); also
Doe v. Ward, 124 F. Supp.2d 900, 914-15 (W.D. Pa., 2000). The terms of the compact take
precedence over state law even to the extent that a compact can trump a provision of a state’s
constitution. See, Washington Metro. Area Transit Auth. v. One Parcel of Land, 706 F.2d 1312,
1319 (4th Cir. 1983) (explaining that the WMATA’s “quick take” condemnation powers under
the compact are superior to the Maryland Constitution’s prohibition on “quick take”

24
condemnations). By entering a compact, the member states contractually agree that the terms
and conditions of the compact supersede state considerations to the extent authorized by the
compact and relative to any conflicting laws or principles. In effect, compacts create collective
governing tools to address multilateral issues. As such, they also govern multilaterally subject to
the collective will of the member states but not under the control of any single member state.

An unusual feature of an interstate compact does not make it invalid; the combined
legislative powers of Congress and of the several states permit a wide range of permutations and
combinations for governmental action. See, Seattle Master Builders v. Northwest Power
Planning Council, 786 F.2d 1359 (9th Cir.1986). The subject matter of an interstate compact is
not, therefore, limited by any specific constitutional restrictions; rather as with any “contract,”
the subject matter is largely left to the discretion of the parties, in this case the member states and
Congress in the exercise of its consent authority. See, Doe vs. Pennsylvania Board of Probation
& Parole, supra. at 110 (“Here the Interstate Compact reflects the collective wisdom not only of
the Pennsylvania General Assembly and the New Jersey Legislature, but also that of the other
signatory states and the United States Congress as to how best to deal with the interstate
movements of adult offenders.”) Id. at 110.

1.3 Compacts Are Not Mere Administrative Agreements

As contracts, compacts constitute solemn “treaties” between the member states, which
are acting as sovereigns within a constituent union. See, Rhode Island v. Massachusetts, 37 U.S.
657, 725 (1838) (compacts operate with the same effect as treaties between sovereign powers).
Compacts are not administrative agreements between states executed by executive branch
agencies. General Expressways, Inc. v. Iowa Reciprocity Board, 163 N.W.2d 413, 419 (Iowa
1968) (“We conclude the uniform compact herein was more than a mere administrative
agreement and did constitute a valid and binding contract of the State of Iowa.”); See also Doe v.
Pennsylvania Board of Probation & Parole, 513 F.3d at 105 (“Interstate compacts are formal
agreements between states and hence are contracts subject to principles of contract law.”).
Thus, compacts are, by nature, more formal and binding than interstate administrative
agreements. Administrative arrangements between states do not rise to the level of an interstate
compact unless (1) the legislatures of the member states have adopted the agreement or properly
delegated to an executive authority the power to enter into an agreement with other states, and
(2) the agreement amounts to a contract between the member states not subject to unilateral
alteration. See, Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 42 (1994); also
Sullivan v. DOT, Bureau of Driver Licensing, 708 A.2d 481 (1998) (Drivers’ License Compact
called for legislature to enact reciprocal statutes; power to enact laws cannot be delegated to
executive agency and thus the compact was not “enacted” in Pennsylvania under an
administrative agreement executed by state Department of Transportation even though
authorized by statute to do so).

1.4 Delegation of State Authority to an Interstate Commission

One of the axioms of modern government is the ability of a state legislature to delegate to
an administrative body the power to make rules and decide particular cases. This delegation of
authority extends to the creation of an interstate commission through an interstate compact. See,
Hess, supra at 42; West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 30 (1951). States may validly

25
agree by compact with other states to delegate to interstate commissions or agencies legislative
and administrative powers and duties. See, Hinderlider v. La Plata River & Cherry Creek Ditch
Co., 304 U.S. 92 (1938); Dutton v. Tawes, 171 A.2d 688 (Md. 1961); Application of Waterfront
Commission of New York Harbor, 120 A. 2d 504, 509 (N. J. Super. 1956). Obligations imposed
by a duly authorized interstate commission are enforceable on the states. Scott v. Virginia, 676
S.E.2d 343, 346 (Va. App. 2009) also Johnson v. State, 957 N.E.2d 660 (Ind. App. 2011).

1.5 Congressional Consent Requirement

Although the Compacts Clause of the Constitution appears to require congressional

consent in every case, the Supreme Court has determined that the compact clause is triggered
only by those agreements that would alter the balance of political power between the states and
federal government or intrude on a power reserved to Congress. Virginia v. Tennessee, 148 U.S.
503 (1893). See also, Northeast Bancorp v. Federal Reserve System, 472 U.S. 159 (1985)
(statute in question neither enhances the political power of the New England states at the expense
of other states or impact the federal structure of government). Thus, where an interstate
agreement accomplishes nothing more than what the states are otherwise empowered to do
unilaterally, the compact does not intrude on federal interests requiring congressional consent.
U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 471, fn 24 (1978). In this
circumstance, the compact continues to be a contract between the states, the meaning of which
may be subject to the Supreme Court’s original jurisdiction over disputes between the states.
The compact is not, however, “federalized” for purposes of enforcement and interpretation. The
compact is interpreted under principles of state law, not federal law.

PRACTICE NOTE: PRACTICE NOTE: A compact not requiring congressional consent does
not present a federal question. It must be construed as state law. McComb v. Wambaugh, 934
F.2d 474, 479 (3d Cir. 1991). However, where congressional consent is required because the
compact intrudes on federal interests, the lack of congressional consent renders the agreement
void as between the states.

Where the compact does not intrude on federal interests, the agreement is not invalid for
lack of congressional consent. See, U.S. Steel supra. at 471; New Hampshire v. Maine, 426 U.S.
363 (1976). Even where congressional consent is given, the mere act of consent is not
dispositive of whether the compact actually required consent. See, U.S. Steel Corp., supra, 470-
71 (“The mere form of the interstate agreement cannot be dispositive . . . . The relevant inquiry
must be one of impact on our federal structure.”)

Congressional consent is given in one of three ways:

• Consent can be implied after the fact when actions by the states and federal
government indicate that Congress has granted its consent even in the absence of a
specific legislative act. See, Virginia v. Tennessee, supra. in accord Energy
Solutions, LLC v. State of Utah, et al., 625 F.3d 1261, 1272 (10th Cir. 2010)

26
 • Consent can be explicitly given after the fact, as in the case of border compacts, by
enacting legislation that specifically recognizes and consents to the compact. Energy
Solutions, supra. at p. 1272

• Consent can be given in advance by Congress passing legislation encouraging states

to adopt compacts to solve particular problems. Thus, the Interstate Compact on
Adult Offender Supervision (“ICAOS”) is based on congressional consent granted
under the Crime Control Act of 1934, 4 U.S.C.A. § 112(a), which provides, “The
consent of Congress is hereby given to any two or more States to enter into
agreements or compacts for cooperative effort and mutual assistance in the prevention
of crime and in the enforcement of their respective criminal laws and policies, and to
establish such agencies, joint or otherwise, as they may deem desirable for making
effective such agreements and compacts.” This was the consent relied upon in the
adoption of the ICAOS’s precursor, the Interstate Compact on Probation and Parole.
See Doe v. Pennsylvania Board of Probation and Parole, supra. at 99. [“On June 19,
2002, the Interstate Compact for the Supervision of Parolees and Probationers was
repealed and replaced by the Interstate Compact for the Supervision of Adult
Offenders, which provides for the “controlled movement of adult parolees and
probationers across state lines.” (citations omitted). Both compacts were approved by
Congress. (citations omitted)”]. See also M.F. v. State of New York Executive Dept.
Div. of Parole, supra. Advance consent may also be given by Congress approving
interstate compacts contingent upon their approval by federal executive branch
officials. See, e.g., 42 U.S.C. § 675 (2004).

1.6 Considerations in Obtaining Consent

In giving consent, Congress is not required to accept a compact as presented nor is

Congress constrained in imposing limitations or conditions on the member states as a condition
precedent to the acceptance of a compact. Congress is fully within its authority to impose
conditions on states when granting consent. The conditions can be proscriptive involving the
duration of the agreement, compulsory in the sense of requiring the member states to act in a
certain manner before the compact is activated, or substantive in actually changing the purposes
or procedures mandated by a compact. See, e.g., 16 U.S.C § 544, et seq. (2004) (imposing
certain conditions on the states participating in the Columbia River Gorge Compact including the
creation of the Columbia River Gorge Commission). Although states may negotiate a compact
and obtain universal assent to the instrument, Congress retains full authority to alter, amend, or
set conditions on the compact as part of granting its consent. See, Columbia River Gorge
United-Protecting People & Property v. Yeutter, 960 F.2d 110 (9th Cir. 1992); Seattle Master
Builders v. Pacific N.W. Elec. Power, 786 F.2d 1359, 1364 (9th Cir. 1986), cert. denied, 479
U.S. 1059 (1987).

The conditions that Congress can impose on the member states may include the waiver of
Eleventh Amendment immunity for compact commissions and agencies. See, Petty v.
Tennessee-Missouri Bridge Commission, 359 U.S. 275 (1959). Selection of jurisdiction and
venue for litigating disputes can be another condition. See, 42 U.S.C. §14616 (2004) (“Any suit
arising under this Compact and initiated in a State court shall be removed to the appropriate

27
district court of the United States in the manner provided by section 1446 of title 28, United
States Code, or other statutory authority.”). Because of the purely gratuitous nature of consent,
Congress may extract as part of its consent to an interstate compact conditions that it might not
otherwise extract in other contexts. Pennsylvania v. Union Gas Co., 491 U.S. 1, 43 n.1 (1988)
(concession that Congress can exact with respect to entities created by compacts may be much
greater than what it can exact in other contexts).

PRACTICE NOTE: States that adopt an interstate compact to which Congress has attached
conditions are deemed to have accepted to those conditions as a part of the compact. See, Petty
v. Tennessee-Missouri Bridge Commission, supra. (Mandated provisions regarding suability of
bridge commission were binding on states because Congress was within its authority to impose
conditions as part of its consent and the states accepted those conditions by enacting the
compact).

Congress does not pass upon a compact in the same manner as a court decides a question
of law. The requirement that Congress approve a compact is an act of political judgment about
the compact’s potential impact on national interests and, if approved, to impose any conditions
necessary to ensure that those interests are not harmed. See, Waterfront Comm’n of New York
Harbor v. Constr. & Marine Equip. Co., 928 F. Supp. 1388 (D.C.N.J. 1996). In short, the
Congressional consent requirement is an exercise of political judgment as to the appropriateness
of the compact vis-à-vis national concerns, not a legal judgment as to the correctness of the form
and substance of the compact. There are virtually no limitations on Congress’s right to grant,
withhold, or condition the granting of its consent, save perhaps a finding that the compact itself
somehow violates constitutional principles.

1.7 Interaction of Congress’s Legislative Authority with the Compact Clause

While courts have been reluctant to recognize any implied constitutional power vested in
Congress to amend, withdraw, or repeal its consent, there are few limitations on Congress’s
legislative action that may impact the substance of a compact. The granting of congressional
consent in no way limits Congress’s ability to exercise its legislative prerogatives, even to the
extent that such an exercise significantly affects or impairs the workings of an interstate
compact. See, Arizona v. California, 373 U.S. 546, 565 (1963) (Congress was well within its
authority to create a comprehensive scheme for managing the Colorado River notwithstanding its
consent to the Colorado River Compact.).

PRACTICE NOTE: While adopting an interstate compact effectively binds all future state
legislatures and restricts the ability of states to act in contravention of a compact, no restrictions
are imposed upon Congress. Congress can utilize its legislative power – concurrently with or
subsequent to granting consent – to alter the purpose or regulatory authority of a compact by
altering the landscape in which the compact operates. Compacts are not afforded a special status
different than that to which the states were otherwise entitled.

The general view is that the legislative act of granting consent can result in changing the
application of federal law to the states or entities subject to the compact. For example, in

28
McKenna v. Washington Metropolitan Area Transit Authority, 829 F.2d 186 (D.C. Cir. 1987),
the U.S. Court of Appeals for the District of Columbia held that Congress’s consent to the
WMATA Compact altered the application of the Federal Employers’ Liability Act (FELA) to the
WMATA and exempted it from liability under that act.

1.8 Effect of Congressional Consent

Where required, the nature of the compact changes significantly once congressional
consent is granted. It no longer stands solely as an agreement between the states but is
transformed into the “law of the United States” under the law of the union doctrine. See, Cuyler
v. Adams, 449 U.S. 433, 440 (1981); in accord Energy Solutions, LLC v. State of Utah et al.,
625 F.3d 1261, 1271 (2010). Therefore, Congressional consent “transforms the States’
agreement into federal law under the Compact Clause.” Id. Although articulated in Cuyler, the
rule that congressional consent transforms the states’ agreement into federal law has been
recognized for some time. See, Delaware River Joint Toll Bridge Comm'n v. Colburn, 310 U.S.
419, 427 (1940) (“In People v. Central Railroad, 79 U.S. (12 Wall.) 455, jurisdiction of this
Court to review a judgment of a state court construing a compact between states was denied on
the ground that the Compact was not a statute of the United States and that the construction of
the Act of Congress giving consent was in no way drawn in question, nor was any right set up
under it. This decision has long been doubted . . . and we now conclude that the construction of
such a compact sanctioned by Congress by virtue of Article I, § 10, Clause 3 of the Constitution,
involves a federal ‘title, right, privilege or immunity’.]”). For example, the Interstate Agreement
on Detainers (to which the United States is also a signatory) is considered a law of the United
States whose violation is grounds for habeas corpus relief under 28 U.S.C. § 2254. See, Bush v.
Muncy, 659 F.2d 402, 407 (4 Cir. 1981), cert. denied, 455 U.S. 910 (1982).

PRACTICE NOTE: One consequence of the “transformational” rationale articulated by the

Supreme Court in Cuyler is that congressional consent places the interpretation and enforcement
of interstate compacts in the purview of the federal courts. League to Save Lake Tahoe v. Tahoe
Reg’l Planning Agency, 507 F.2d 517 (9th Cir. 1974) (“[A] congressionally sanctioned interstate
compact within the Compact Clause is a federal law subject to federal construction.”).
Carchman v. Nash, 473 U.S. 716, 719 (1985). See also, West Virginia ex rel. Dyer v. Sims,
supra at 28 (“A state cannot be its own ultimate judge in a controversy with a sister state. To
determine the nature and scope of obligations as between states, whether they arise through the
legislative means of compact or the ‘federal common law’ governing interstate controversies, is
the function and duty of the Supreme Court of the Nation.”)

This is not to suggest that every dispute arising under an interstate compact must be
litigated in the federal courts. Under the Supremacy Clause, state courts have the same
obligation to give force and effect to the provisions of a compact as do the federal courts. It is,
however, ultimately the U.S. Supreme Court that retains the final word on the interpretation and
application of congressionally approved compacts. See, Delaware River Joint Toll Bridge
Comm'n v. Colburn, 310 U.S. 419, 427 (1940) (“[T]he construction of such a [bi-state] compact
sanctioned by Congress by virtue of Article I, § 10, Clause 3 of the Constitution, involves a

29
federal ‘title, right, privilege or immunity,’ which when ‘specially set up and claimed’ in a state
court may be reviewed here on certiorari under § 237(b) of the Judicial Code.”).

In interpreting and enforcing compacts the courts are constrained to effectuate the terms
of the agreement (as binding contracts) so long as those terms do not conflict with constitutional
principles. Once a compact between states has been approved, it is binding on the states and its
citizens. See, New Jersey v. New York, 523 U.S. 767 (1998). Thus, “Unless the compact . . . is
somehow unconstitutional, no court may order relief inconsistent with its express terms, no
matter what the equities of the circumstances might otherwise invite.” Alabama v. North
Carolina, 560 U.S. 330 (2010); New York State Dairy Foods v. Northeast Dairy Compact
Comm'n, 26 F. Supp. 2d 249, 260 (D. Mass. 1998), aff’d, 198 F.3d 1 (1st Cir. 1999), cert.
denied, 529 U.S. 1098 (2000). For example, in Texas v. New Mexico, 462 U.S. 554, 564 (1983)
the Supreme Court sustained exceptions to a special master’s recommendation to enlarge the
Pecos River Compact Commission, ruling that one consequence of a compact becoming “a law
of the United States” is that “no court may order relief inconsistent with its express terms.”
Alabama v. North Carolina, 560 U.S 330, 130 S. Ct. 2295, 2313 (2010) (quoting New Jersey v.
New York, 523 U.S. 767, 811 (1998) However, congressional consent may change the venue in
which compact disputes are ultimately litigated. See, for example, Stanton v. Graham, et. al.,
(2008 WL 4443283 (W.D. Wis. 2008).

PRACTICE NOTE: The ICAOS has received congressional consent and is, therefore, a federal
law. Doe v. Pennsylvania Board of Probation & Parole, supra., 513 F.3d at 105-06. The ICAOS
requires that disputes concerning the Compact or its rules be brought in federal court for the
District of Columbia or the federal district where the Commission has its principal offices.
Currently the principal offices of the Commission are located in Lexington, Kentucky. Any
challenge to the Compact or its rules brought in state court would be subject to removal to
federal court.

1.9 Withdrawal of Congressional Consent

In general, once Congress grants consent to a compact, the general principle is that
consent cannot be withdrawn or additional conditions added to the compact subsequent to the
granting of consent. Although U.S. Supreme Court has never finally determined the matter, at
least two lower courts have held that congressional consent, once given, is not subject to
alteration. See, Tobin v. United States, 306 F.2d 270, 273 (D.C. Cir. 1962); Mineo v. Port
Authority of New York and New Jersey, 779 F.2d 939 (3rd Cir. 1985). It should be noted,
however, that notwithstanding Tobin, in at least one instance Congress has specifically reserved
to itself the authority to withdraw consent by passing a law to that effect. Legislation granting
consent to low-level radioactive waste disposal compacts specifically provides that, “Each
compact shall provide that every 5 years after the compact has taken effect the Congress may by
law withdraw its consent.” See, 42 U.S.C. § 2021d (d) (2004). Because of the time-limited
nature of these compacts, the specific reserve of authority, and the prior notice to the states,
subsequent withdrawal of consent may be appropriate and legally defensible in this limited
context. Moreover, the specific reservation of authority provides ample notice to the member
states that one condition of the compact is the reservation of Congress’s authority to withdraw its

30
consent to the agreement. Thus, the concern expressed in Tobin that withdrawal of consent
could lead to unknown problems may be obviated when the states accept a compact containing a
condition that empowers Congress to withdraw consent. Nevertheless, whether a court would
recognize withdrawal of consent given the important legal standing of compacts, even under
circumstances where Congress has specifically authorized such withdrawal in granting consent,
has yet to be litigated and finally resolved.

1.10 Federal Enforcement of Interstate Compacts

Because congressional consent places the interpretation of an interstate compact in the

federal courts, those same courts have the authority to enforce the terms and conditions of the
compact. No court can order relief inconsistent with the purpose of the compact. See, New York
State Dairy Foods v. Northeast Dairy Compact Comm'n, 26 F. Supp. 2d 249, affirmed, 198 F.3d
1, 1999 (1st Cir. Mass. 1999), cert. denied 529 U.S. 1098 (2000). However, where the compact
does not articulate the terms of enforceability, courts have wide latitude to fashion remedies that
are consistent with the purpose of the compact. The U.S. Supreme Court addressed this matter
observing, “That there may be difficulties in enforcing judgments against States counsels
caution, but does not undermine our authority to enter judgments against defendant States in
cases over which the Court has undoubted jurisdiction, authority that is attested to by the fact
that almost invariably the ‘States against which judgments were rendered, conformably to their
duty under the Constitution, voluntarily respected and gave effect to the same.’” See, Texas v.
New Mexico, 482 U.S. 124,130, 131 (1987). “By ratifying the Constitution, the States gave this
Court complete judicial power to adjudicate disputes among them . . . and this power includes
the capacity to provide one State a remedy for the breach of another.” Id. at 128.

Remedies for breach of the compact can include granting injunctive relief or awarding
damages. See e.g., South Dakota v. North Carolina, 192 U.S. 286, 320-21 (1904); Texas v. New
Mexico, 482 U.S. at 130 (“The Court has recognized the propriety of money judgments against a
State in an original action, and specifically in a case involving a compact. In proper original
actions, the Eleventh Amendment is no barrier, for by its terms, it applies only to suits by
citizens against a State.”). The Eleventh Amendment provides no protection to states in suits
brought by other states. Kansas v. Colorado, 533 U.S. 1, 7 (2001) (in proper original actions, the
Eleventh Amendment is no barrier, for by its terms, it applies only to suits by citizens against a
state). However, a state may not act as a surrogate for its citizens but must have a direct interest
in the original action brought against a sister state. Maryland v. Louisiana, 451 U.S. 725, 737
(1981); see also New Hampshire v. Louisiana, 108 U.S. 76 (1883) (Eleventh Amendment applies
and acts to bar jurisdiction where the State and the attorney-general are only nominal actors in
the proceeding).

1.11 Eleventh Amendment Issues for Compact Agencies

In general, the delegation of state authority to an interstate commission does not mean
that such commissions presumptively have the status of a “state agency” for purposes of
Eleventh Amendment immunity from suit in federal court. Compact agencies are usually under
the control of “special interests” or “gubernatorially appointed” representatives and are,
therefore, considered two or more steps removed from popular control or even of control by a

31
local government. Bi-state entities created by compact are not subject to the unilateral control of
any one of the states that compose the federal system. Hess v. Port Auth. Trans-Hudson Corp.,
513 U.S. 30 (1994) (Port Authority is financially self-sufficient; it generates its own revenues,
and it pays its own debts. Requiring the Port Authority to answer in a federal court to injured
railroad workers who assert a federal statutory right, under the Federal Employers’ Liability Act
to recover damages does not touch the concerns, the states’ solvency and dignity, that underpin
the Eleventh Amendment.)

The Eleventh Amendment may protect an interstate compact commission or agency if the
compact evidences an explicit and unequivocal intent by the states and Congress (if consent is
required) to do so. The Supreme Court has noted that as long as the compact provisions reveal
the intent of the states to have direct financial and legal responsibility for the operation and
administration of a compact-created interstate commission, immunity is generally not waived.
Thus, Eleventh Amendment immunity is generally available to an interstate commission if: (1)
the states have direct (as distinguished from indirect) financial responsibility for funding the
operations of the agency, and (2) the states assume legal responsibility for the administration of
the compact. See, Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391
(1979). Compact commissions that are self-funding and whose operations are generally
independent of direct state oversight do not enjoy Eleventh Amendment immunity. See, Hess,
supra. However, a compact that is silent on Eleventh Amendment immunity does not confer
such immunity, the presumption running against conferring immunity on “non-state” entities.
See, Watters v. Wash. Metro. Area Transit Auth., 295 F.3d 36 (2002) (The three signatories
conferred their respective sovereign immunities, including the Eleventh Amendment immunity
of the two states, upon WMATA; there was nothing to indicate a waiver of WMATA’s immunity
against a suit for breach of duty to enforce an attorney’s lien). The Supreme Court has been
cautious in extending Eleventh Amendment immunity to entities that are not “states.” See, Lake
County Estates, Inc. v. Tahoe Reg’l Planning Agency, supra at 410 (“It is true, of course, that
some agencies exercising state power have been permitted to invoke the Amendment in order to
protect the state treasury from liability that would have had essentially the same practical
consequences as a judgment against the State itself. But the Court has consistently refused to
construe the Amendment to afford protection to political subdivisions such as counties and
municipalities, even though such entities exercise a ‘slice of state power.’”). Therefore, whether
Eleventh Amendment immunity has been waived can only be determined by examining the
compact language and the intent of the states as revealed by that language.

Although the “sue and be sued” provision in Article V of the Interstate Compact for Adult
Offender Supervision may constitute a state waiver of immunity from suits against the state in
state courts, it does not necessarily constitute a waiver of Eleventh Amendment immunity against
suits in federal courts. Florida Department of Health and Rehabilitative Services v. Florida
Nursing Home Assoc., 450 U.S. 147, 150, 67 L. Ed. 2d 132, 101 S. Ct. 1032 (1981); accord
Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 39-40 (2d Cir. 1977). Arguably, the
compact evidences intent by the states to be financially and administratively responsible for the
actions of the Commission, which may provide Eleventh Amendment immunity under the test
articulated in Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994). This has not,
however, been judicially determined. Even if the Eleventh Amendment does not offer
protection, the Commission may be immune from suit under the laws of the states that created

32
the Commission. Such immunity is governed by state sovereign immunity considerations not
Eleventh Amendment considerations. While the courts have not yet determined whether the “sue
and be sued” provision of the compact constitutes a waiver of state sovereign immunity in this
context; some courts have interpreted “sue and be sued” provisions of other statutes as a waiver
of immunity depending on the language of the provision. See, Port Authority Trans-Hudson
Corp. v. Feeney, 495 U.S. 299 (1990) (New York and New Jersey consented to suit against
PATH in federal court.). But see, Tooke v. City of Mexia, 197 S.W.3d 325 (Texas Supreme Ct.
2006) (Use of provisions in various statutes, including one creating an interstate compact agency,
stating that such agencies may “sue and be sued” did not, “merely by using such phrases, clearly
waive governmental immunity from suit and instead merely addressed such governmental
entity’s capacity to engage in the activities encompassed in those phrases.”) also, Watters v.
Wash. Metro. Area Transit Auth., supra at 40 (“We may find a waiver of sovereign immunity
‘only where stated by the most express language or by such overwhelming implications from the
text [of the compact] as will leave no room for any other reasonable construction.’” (Citations
omitted). See also Moroney v. Waterfront Commission of New York Harbor, 276 N.Y.S.2d 362
(Sup 1966).

1.12 Judicial Interpretation of Interstate Compacts

Because a compact is a contract it must be enforced according to the terms and conditions
of the compact. No court has authority to provide relief that is inconsistent with the compact.
Texas v. New Mexico, 462 U.S. 554 (1983). However, in interpreting a compact courts have
latitude in discerning the intent and purpose of an agreement. In interpreting a “federalized”
interstate compact, federal courts must address disputes just as if a court were addressing a
federal statute. The first and last order of business of a court addressing an interstate compact “is
interpreting the compact.” Id. at 567-68. Absent a federal statute making state statutory or
decisional law applicable, the controlling law is federal law; and, absent federal statutory
guidance, the governing rule of the decision would be fashioned by the federal court in the mode
of the common law. See Doe v. Pennsylvania Board of Probation & Parole, 513 F.3d at 106
(“When interpreting an interstate compact, we must address disputes under the compact just as if
we were addressing a federal statute or a federal contract.”); See also Oneida Indian Nation v.
County of Oneida, 414 U.S. 661, 674-679 (1974).

Although courts have acknowledged that interstate compacts are contracts to the extent
that they are binding agreements between the member states, courts have also recognized the
unique features and functions of compacts. Though a contract, an interstate compact represents a
political compromise between “constituent elements of the Union,” as opposed to a commercial
transaction. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 40 (1994). Such an agreement
is made to “address interests and problems that do not coincide nicely either with the national
boundaries or with State lines – interests that may be badly served or not served at all by the
ordinary channels of National or State political action.” Id. Consequently, with regards to
congressionally approved compacts, the right to sue for breach of the compact differs from a
right created by a commercial contract; it does not arise from state common law but from federal
law.

33
 While contract principles may inform the interpretation of a compact and the remedies
available in the event of a breach, the underlying action is not like a contract action at common
law as heard in the English law courts of the late Eighteenth Century. Courts may look to
extrinsic evidence, when appropriate, to determine the intent of the parties and to effect the
desired result of the compact. Extrinsic evidence such as a compact’s legislative history or the
negotiation history may be examined in interpreting an ambiguous provision of a compact.
Arizona v. California, 292 U.S. 341 (1934); Green v. Bock Laundry Machine Co., 490 U.S. 504
(1989); Pierce v. Underwood, 487 U.S. 552, (1988); Blum v. Stenson, 465 U.S. 886 (1984).
Thus, unlike standard contract disputes where principles such as the parole evidence rule may
restrict the influence of outside evidence in interpreting a contract provision, resorting to
extrinsic evidence such as the history of negotiations is entirely appropriate in a compact dispute.
See, Oklahoma v. New Mexico, 501 U.S. 221 (1991). The use of extrinsic evidence to interpret
and enforce a compact arises from the dual nature of such agreements as both statutory and
contractual in nature. However, the express terms of the compact must be respected and in the
absence of an ambiguity consideration of extrinsic evidence is not permissible. See Tarrant
Regional Water Dist. v. Herrmann, supra. at 2130; Alabama v. North Carolina, supra. at 2309-
13.

34
 CHAPTER 2

INTERSTATE COMPACT ON ADULT OFFENDER SUPERVISION

(ICAOS)

2.1 History of the Interstate Compact for Probation and Parole (ICPP)

In 1934 Congress authorized the creation of interstate compacts on crime control which
led to the 1937 Interstate Compact for the Supervision of Parolees and Probationers, sometimes
referred to as the Interstate Compact for Probation and Parole or the Uniform Law on the
Supervision of Probationers and Parolees (hereafter “ICPP”). Pursuant to 4 U.S.C. 112 (2004),
Congress granted the following consent:

(a) The consent of Congress is hereby given to any two or more States to enter
into agreements or compacts for cooperative effort and mutual assistance in the
prevention of crime and in the enforcement of their respective criminal laws and
policies, and to establish such agencies, joint or otherwise, as they may deem
desirable for making effective such agreements and compacts.

(b) For the purpose of this section, the term “States” means the several States and
Alaska, Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
and the District of Columbia.

This consent, given to the states in advance of any compact actually being in place, was
the basis of not only the ICPP but also serves as consent to other agreements such as the
Interstate Juvenile Compact and the Interstate Compact for Adult Offender Supervision. See
Doe v. Pennsylvania Board of Probation and Parole, 513 F.3d 95, 99, 103 ( 3rd Cir. 2008); See
also M.F. v. State of New York Executive Dept. Div. of Parole, supra. Prior to the adoption of
the ICPP there was no formal means for controlling the interstate movement of probationers and
parolees. In many circumstances, whether an offender was permitted to engage in interstate
travel or relocation was largely discretionary with courts and paroling authorities, often with
little or no notice to a receiving state that an offender was relocating. The ICPP served as the
primary means for controlling the interstate movement of offenders until its replacement by
ICAOS.

2.1 Why the New Interstate Compact for Adult Offender Supervision?

Stephanie Peyton Tuthill is the face of the ICAOS. Stephanie, a twenty-four year old
graduate student and a resident of Florida, was attending college in Colorado at the time she was
murdered by Dante Terrous Paige. In college, she was the president of her sorority, an
environmentalist, and a volunteer for the American Cancer Society and Habitat for Humanity.
She volunteered at a shelter for abused women. Dante Terrous Paige had served 22 months of a
20-year sentence in Maryland for violent crime, assault and armed robbery at the time he was
released and transferred to Colorado. Paige had no family or other contacts in Colorado, but

35
Maryland transferred him there to participate in a halfway house program. The transfer occurred
without any notice to Colorado authorities or any consent by Colorado authorities. Paige walked
away from his program. Stephanie died after returning to her apartment following a job
interview to find Paige burglarizing it. Paige proceeded to rape and murder Stephanie. The state
of Maryland settled a civil suit brought by the Tuthill family for $700,000.

The intent of the ICAOS is not to dictate judicial sentencing or place restrictions on
judicial discretion relative to sentencing. See Scott v. Virginia, 676 S.E.2d 343, 348 (Va. App.
2009) The ICAOS contains no provisions telling judges what sentences to hand out in particular
cases. The ICAOS does not alter individual state sentencing laws, although the ICAOS may
alter how those laws impact transfer decisions under the compact. See, e.g., Advisory Opinion 6-
2005 (deferred sentencing) & Advisory Opinion 7-2006 (second offense DUI). The ICAOS is
only activated when supervision of an offender will be transferred to another state that is also a
member of the Compact. Thus, if part of complying with a judge’s sentence would permit or
require travel to or relocation in another state, the rules of the ICAOS may apply and would be
binding on state officials both in the sending and receiving state. Likewise, the ICAOS does not
control the underlying decisions of a parole board except to the extent that the decision to parole
requires or permits travel to or relocation in another state. If the parole board is permitting such
travel or relocation, the rules of the ICAOS would apply and be controlling upon state officials in
both states. The transfer of incarcerated offenders to serve their term of incarceration in another
state is not controlled by the ICAOS but may be controlled by the Interstate Corrections
Compact.

PRACTICE NOTE: The ICAOS is not an instrument imposing restrictions upon the discretion
of courts or parole authorities in the sending state as to the nature of the sentence or conditions to
impose on an offender. Limits on sentencing or parole conditions are generally a function of
state law. The ICAOS becomes relevant to courts and parole authorities when an offender may
be traveling to or relocating in a state other than the state that imposed the sentence or
conditions.

2.3 General Principles Affecting Interstate Movement of Offenders

As a general proposition, convicted persons enjoy no right to interstate travel or a

constitutionally protected interest in serving time or being supervised in another state. See, Jones
v. Helms, 452 U.S. 412 (1981); Griffin v. Wisconsin, 483 U.S. 868, 874 (1987); U.S. v. Knights,
534 U.S. 112, 119 (2001)(“Just as other punishments for criminal convictions curtail an
offender’s freedoms, a court granting probation may impose reasonable conditions that deprive
the offender of some freedoms enjoyed by law-abiding citizens.”); See Virgin Islands v. Miller,
(2010 WL 1790213 (V.I. Super., May 4, 2010)(“This language (of the compact) clearly reflects
that the determination of whether to allow a probationer to reside in another jurisdiction and be
supervised under the authority of the receiving state is an exercise of discretion and not a matter
of right.”), also O'Neal v. Coleman, 2006 U.S. Dist. LEXIS 40702 (W.D. Wis., June 16, 2006)
(offender has no “right” to have supervision transferred pursuant to ICAOS). See also. United
States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999), Bagley v. Harvey, 718 F.2d 921, 924 (9th
Cir. 1988); Alonzo v. Rozanski, 808 F.2d 637 (7th Cir. 1986) and, Wilkinson v. Austin, 125 S.

36
Ct. 2384 (2005) (inmates may have protected due process interests, but state’s interests in public
safety and management of scarce resources are dominant considerations owed great deference).
A parolee cannot be regarded as “free” as they have already lost their freedom by due process of
law. While paroled, the parolee is a convicted person who has tentatively assumed progress
towards rehabilitation is being “field tested.” One cannot, therefore, compare the parolee’s rights
in this posture with rights before conviction. Hyser v. Reed, 318 F.2d 225, 239 (D.C. Cir.) (en
banc), cert denied, 375 U.S. 957 (1963). A parolee’s right to travel is substantially the same as
an inmate’s and, thus, not in need of any specific constitutional protection. See, Paulus v.
Fenton, 443 F. Supp. 473 (M.D. Pa. 1977), also Berrigan v. Sigler, 499 F.2d 514, 522 (D.C. Cir.
1974). Likewise, restricting the movement of individuals on probation is appropriate in some
cases to facilitate proper supervision and to punish the probationer for his or her unlawful
conduct. United States v. Scheer, 30 F.Supp. 2d 351, 353 (E.D.N.Y. 1998); O’Neal v. Coleman,
Case No. 06-C-243-C (W.D. Wis. June 16, 2006). A categorical denial of the right to travel
applicable to offenders does not presumptively violate due process rights as such rights were
extinguished or greatly diminished by a conviction. See e.g., Pelland v. Rhode Island, 317 F.
Supp. 2d 86 (R.I. 2004) (for probationers, the right of interstate travel necessarily exists, if at all,
in a restricted and weakened condition; thus, a higher degree of deference (or a lower degree of
scrutiny) is necessary with respect to the government’s restrictions if the distinction between the
convicted and the law-abiding is to mean anything). Convicted persons have no right to control
where they live in the United States; the right to travel is extinguished for the entire balance of
their sentences. See, e.g., Williams v. Wisconsin, 336 F.3d 576 (7th Cir. 2003). See also, Jones
v. Helms, 452 U.S. 412, 419-20 (1981) (a person who has committed an offense punishable by
imprisonment does not have an unqualified right to leave the jurisdiction prior to arrest or
conviction). See also United States v. Pugliese, 960 F.2d 913, 916-16 (10th Cir. 1992). (‘No due
process challenge may be made unless the challenger has been or is threatened with being
deprived of life, liberty, or property.’) See, Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir.
2006).

As will be discussed within the context of retaking, the lack of a specific right to
interstate travel for those convicted of offenses has important implications regarding the return of
offenders. Because offenders possess no presumptive right to travel, and given that public safety
considerations and the management of scarce corrections resources are dominant concerns, states
have great leeway in managing both the sending and return of offenders. The Interstate Compact
for Adult Offender Supervision is the primary tool for managing the interstate movement of
offenders subject to conditional release and/or community supervision. The Compact, therefore,
controls such movement as well as the return of offenders. The level of process owed offenders
in transferring supervision to another state would appear purely discretionary and involves little
if any due process considerations by a sending state. However, the ICAOS may implicate due
process considerations in one of two circumstances. First, in some circumstances the ICAOS
imposes an obligation on a receiving state to accept certain offenders for supervision. The
improper refusal by the receiving state to accept transfer of an otherwise eligible offender may
present due process issues. Second, due process considerations may also arise by actions in the
receiving state that may lead the sending state to revoke conditional release. See, discussion
infra at § 4.4.2.3. There are no due process implications per se to the decision to transfer
supervision or retake an offender unless one of these two circumstances is present. The Compact
imposes no obligation on sending states to transfer supervision and therefore would appear to

37
present no due process concerns in this context. An offender does not have a right to transfer
and a sending state has no affirmative obligation to grant transfer.

PRACTICE NOTE: Offenders have no constitutional right to relocate. Sending states have no
obligation to allow an offender to travel to or relocate in another state. Except as provided in the
ICAOS and its rules, member states do not have an obligation to assume jurisdiction and
supervision over offenders from other states. The ability of an individual offender to relocate
and the obligations of states to either approve relocation or accept relocation are defined by
federal law or interstate agreements such as ICAOS.

2.4 Historical Development of the ICAOS

In 1998, the National Institute of Corrections (NIC) Advisory Board, following several
public hearings, directed its staff to begin pursuing a revision of the ICPP. Through the
development of an Advisory Group, NIC facilitated a discussion among state officials and
corrections policy experts, arriving at a list of recommendations for improvement and overhaul
to the existing interstate compact. Through a partnership with The Council of State
Governments (CSG), NIC and CSG developed and facilitated a Drafting Team of state officials
to design a revised interstate compact – one that would create a modern administrative structure,
provide for rule-making and rule-changing over time, require the development of a modern data
collection and information sharing system among the states, and was adequately funded to carry
out its tasks.

Beginning in January 2000, the new Interstate Compact for Adult Offender Supervision
saw acceptance in the states and by June 2002, had reached its threshold of thirty-five states,
thereby becoming active in just thirty months. Activation of the Compact also activated its
governing body, the Interstate Commission on Adult Offender Supervision (hereinafter
“Commission”). The first meeting of the new Commission took place November 18-20, 2002 in
Scottsdale, Arizona. More than forty-five states attended the inaugural meeting at which the
newly formed Commission conducted preliminary business.

The ICAOS was written to address problems and complaints with the ICPP. Chief among
the problems and complaints were:

• Lack of state compliance with the terms and conditions of the ICPP.

• Enforceability of its rules given there was no enforcement mechanism provided in the
ICPP and, thus, the enforcement tools provided for in the rules of the Parole and
Probation Compact Administrators’ Association (PPCAA) were suspect.

• Questions as to whether the PPCAA could legitimately be construed as “like officials”

conferring authority to promulgate rules under the terms of the ICPP.

• The increasing tendency of state legislatures to adopt statutes that conflicted with the
terms, conditions, and purposes of the ICPP due to notorious failures in compact
management. For example, Colorado adopted legislation prohibiting “the travel of a

38
 supervised person who is a nonresident of this state . . . without written notification from
the administrator of the interstate compact of acceptance of the supervised person into a
private treatment program.” Colo. Rev. Stat. § 17-27.1-101(3) (b) (2002). The Colorado
legislature specifically found that “The general assembly further finds that although
Colorado is a signatory to the interstate compact for parolee supervision, more
information concerning out-of-state offenders is necessary for the protection of the
citizens of Colorado, and it may be necessary to further regulate programs that provide
treatment and services to such persons.” See, Doe v. Ward, 124 F. Supp. 2d 900, (W.D.
Pa. 2000) (Pennsylvania’s attempt to impose higher restrictions on out-of-state sex
offenders than it imposed on in-state sex offenders violated the terms of the ICPP and
rules adopted pursuant to that compact).

• Questions regarding what offenders were covered by the Compact, particularly given the
increasing use of alternative sentencing practices such as suspended imposition of
sentence and diversion programs that did not readily fit the terms and definitions of the
ICPP.

2.5 Purpose of the ICAOS

Against this backdrop a new compact was proposed to the states. The purpose of the
compact is defined in Article I, which provides:

It is the purpose of this Compact and the Interstate Commission created

hereunder, through means of joint and cooperative action among the compacting
states: to provide the framework for the promotion of public safety and protect
the rights of victims through the control and regulation of the interstate movement
of offenders in the community; to provide for the effective tracking, supervision,
and rehabilitation of these offenders by the sending and receiving state; and to
equitably distribute the costs, benefits, and obligations of the Compact among the
compacting states.

2.6 Effect of the ICAOS on the States

As previously discussed, the ICAOS received advanced congressional consent pursuant

to 4 U.S.C. § 112 (2004). The agreement is, therefore, a compact that must be construed as
federal law enforceable on member states through the Supremacy Clause and the Contracts
Clause of the U.S. Constitution. Given the contractual nature of compacts, member states may
not act unilaterally to alter the terms and conditions of the agreement. Any state law that would
conflict with or attempt to supersede the ICAOS would be unenforceable to the extent of any
conflict. Additionally, state executive bodies and courts are required to give full force and effect
to the agreement by the explicit terms of the ICAOS and its standing as (1) a valid compact, (2)
which is contractual in nature, and (3) must be construed as federal law. A state parole board
may not, for example, impose terms and conditions on parolees from other states that exceed or
attempt to override the requirements imposed by the Commission.

39
PRACTICE NOTE: An additional feature of the ICAOS that is unique among compacts is the
effect rules adopted by the Interstate Commission have on state law. The ICAOS specifically
vests in the Interstate Commission the authority to adopt rules to effectuate the purpose of the
agreement. By the terms of the compact, rules adopted by the Interstate Commission have
standing as statutory law and are binding on the compacting states. Scott v. Virginia, 676 S.E.2d
343, 346 (Va. App. 2009). A state law, court rule, or regulation that contradicts or attempts to
contravene the rules of the Interstate Commission may be invalid to the extent of the conflict.
Art. V, Powers & Duties of the Interstate Commission.

2.7 Adoption and Withdrawal

Like any other interstate compact, the ICAOS is adopted when state legislatures pass like
statutes enacting the provisions of the agreement. In the case of the ICAOS, the threshold
requirement for activation of the Compact was adoption of the Compact by thirty-five states. It
should be noted that unlike some compacts that are adopted through Executive Order or by
delegation of authority to a state official, ICAOS is adopted by enacting a statute that is
substantially similar to and contains all pertinent provisions of the draft compact. The following
states have adopted the ICAOS:

Alabama Ala. Code § 15-22-1-1 (2004)

Alaska ALASKA STAT. §33-36-3 (2004)
Arizona ARIZ. REV. STAT. § 31-467 (2004)
Arkansas ARK. CODE ANN. § 12-15-101 (2004)
California CAL. PENAL CODE § 11180 (2004)
Colorado COLO. REV. STAT. §§ 24-60-2802 (2004)
Connecticut CONN. GEN. STAT. § 54-133 (2004)
Delaware DEL. CODE ANN. tit. 11, §§ 4358 & 4359 (2004)
Florida FLA. STAT. ANN. 949-07 (2004)
Georgia GA. CODE ANN. § 42-9-81 (2004)
Hawaii HAW. REV. STAT. § 353B-1 (2004)
Idaho IDAHO CODE § 20-301 (2004)
Illinois 45 ILL. COMP. STAT. 170 (2004)
Indiana IND. CODE 11-13-4.5 (2004)
Iowa IOWA CODE § 907B-2 (2004)
Kansas KAN. STAT. ANN.§ 22-4110 (2004)
Kentucky KY. REV. STAT. ANN. § 439-561 (2004)
Louisiana LA. REV. STAT. ANN. § 15-574-31 (2004)
Maine ME. REV. STAT. ANN. tit. 34-A, § 9871, et seq. (2004)
Maryland MD. CODE ANN. CORRECT. SERV. § 6-201, et seq. (2004)
Massachusetts 2005 MASS. ANN. LAWS 121 (2005)
Michigan MICH. CONS. LAWS. § 3-1012 (2004)
Minnesota MINN. STAT. ANN. § 243.1605 (2004)
Mississippi MISS. CODE ANN. § 47-7-81 (2004)
Missouri MO. REV. STAT. § 589.500 (2004)
Montana MONT. CODE ANN. § 46-23-1115 (2004)
Nebraska NEB. REV. STAT. § 29-2254 (2004)

40
 Nevada NEV. REV. STAT. § 213-215 (2004)
New Hampshire N.H. REV. STAT. ANN. § 651-A:29 (2004)
New Jersey N.J. STAT. ANN. § 2A:168-26 (2004)
New Mexico N.M. STAT. ANN. § 31-5-20 (2004)
New York N.Y. EXEC. LAW § 259-mm (2004)
North Carolina N.C. GEN. STAT. § 148-4B (2004)
North Dakota N.D. CENT. CODE § 12-65-01 (2004)
Ohio OHIO REV. CODE §5149-21 (2004)
Oklahoma OKLA. STAT. tit. 22 § 1091, et seq. (2004).
Oregon OR. REV. STAT. §144-600 (2004)
Pennsylvania 61 PA. CONS. STAT. § 324.1 (2004)
Puerto Rico (P. del S. 2141), 2004, ley 208
Rhode Island R.I. GEN. LAWS § 13-9.1-1 (2004)
South Carolina S.C. CODE ANN. § 24-21-1100 (2003)
South Dakota S.D. CODIFIED LAWS § 24-24-16A (2004)
Tennessee TENN. CODE ANN. § 40-28-41 (2004)
Texas TEXAS GOV’T CODE ANN. § 510.00, et seq. (2004)
Utah UTAH CODE ANN. § 77-28C-103 (2004)
Vermont VT. STAT. ANN. tit. 22 § 1351 (2004)
Virginia VA. CODE ANN. §§ 53.1-172 & 53.1-174 (2004)
Virgin Islands Act No. 6730, Bill No. 26-0003
Washington WASH. REV. CODE § 9-94A-745 (2004)
West Virginia W. VA. CODE § 28-7-1, et seq. (2004)
Wisconsin WIS. STAT. § 304-16 (2004)
Wyoming WYO. STAT. ANN. § 7-13-423 (2004)
District of Columbia D.C. CODE § 24-133 (2004)
United States Pub. L. No. 73-293, 48 Stat. 909, 4 U.S.C. § 112(A) (2004)

Withdrawal from the Compact is permitted pursuant to Article XII, § A of the agreement.
A state may withdraw by enacting a statute specifically repealing the agreement. The effective
date of withdrawal is the effective date of the repeal, provided however that repealing the
agreement does not relieve a state of any pending financial obligations it may have to the
Commission. Therefore, a state could not avoid paying assessments, obligations or other
liabilities, including any financial penalties imposed by the Commission or a court simply by
repealing the agreement. Such obligations would extend beyond the date of any repeal and
would be subject to judicial enforcement even after a state has withdrawn from the ICAOS.

2.8 Effect of Withdrawal

As briefly discussed, offenders have no constitutional right to travel and states have no
constitutional obligations to open their doors to offenders from other states. The ICAOS,
therefore, is currently the only mechanism by which states can regulate the interstate movement
of adult offenders subject to community supervision. A state that repeals the ICAOS forfeits
being a part of a formal mechanism by which the movement of offenders to and from other states
can be regulated. Therefore, at least theoretically, any state could order an offender to relocate to
a non-member state without abiding by the most basic considerations, such as prior notice of

41
relocation, the opportunity to review a proposed supervision plan, and the opportunity to
investigate whether resources are available to meet the goals of the supervision plan. In short,
non-member states place themselves in serious jeopardy of both “dumping” as well as being a
“dumping ground” for all other states’ offenders. Additionally, offenders of states that are not
members of the ICAOS may be subject to a wide array of state laws and regulations that may
actually seek to prohibit relocation. See, e.g., COLO. REV. STAT. § 17-27.1-101(3) (b) (2002).
For example, a state statute requiring only that all out-of-state felony offenders submit to
psychological testing and registration may not be enforceable against felons from states that are
members of the ICAOS, cf., Doe v. Ward, 124 F. Supp.2d 900 (W.D. Pa. 2000), but may be
enforceable against felons from states that are not members of the Compact. Stated differently,
participation in the ICAOS ensures not only the controlled movement of offenders under
community supervision, but also that out-of-state offenders will be given the same resources and
supervision provided to similar in-state offenders. Non-participation or withdrawal from the
Compact could allow out-of-state offenders to be treated differently, within the bounds of due
process and equal protection, than their in-state counterparts. The differences could,
conceivably, include requirements imposed on non-member state offenders that effectively
prevent transfers to the state.

PRACTICE NOTE: Member states are not required to accord non-member states or their
offenders the same status or level of cooperation that the ICAOS requires its member states to
afford one another.

2.9 Key Features of the ICAOS

The following are key features of the ICAOS:

• The creation of a formal Interstate Commission comprised of Commissioners

representing each of the member states and vested with full voting rights, the
exercise of which is binding on the respective state. The Commission may also
include a number of ex-officio members representing various interest groups such as
the Conference of Chief Justices, crime victim advocates, and others who would be
non-voting members.

• Broad rulemaking authority is given to the Commission.

• Extensive enforcement authority is given to the Commission including the authority

to require remedial training, impose fines, and suspend non-compliant member
states.

• A mandate that each member state create a “State Council” with representatives
from all three branches of government to assist in managing intrastate compact
affairs and intervene as necessary to prevent disputes between the states. The State
Council was intended to provide a forum where intrastate management issues could
be resolved short of intervention by the Commission.

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2.10 Key Definitions in the ICAOS (Art. II)

The following definitions should be of particular interest to judicial authorities:

• Adult – means both individuals legally classified as adults and juveniles treated as
adults by court order, statute, or operation of law.

• Compact Administrator – means the individual in each compacting state appointed

pursuant to the terms of this Compact who is responsible for the administration and
management of the state’s supervision and transfer of offenders subject to the terms
of this Compact, the rules adopted by the Interstate Commission and the policies
adopted by the State Council.

• Commissioner – means the voting representative of each compacting state appointed

pursuant to Article II of this Compact.

• Offender – means an adult placed under, or subject to, supervision as the result of the
commission of a criminal offense and released to the community under the
jurisdiction of courts, paroling authorities, corrections, or other criminal justice
agencies.

• Rules – means acts of the Interstate Commission, duly promulgated pursuant to

Article VIII of this Compact, and substantially affecting interested parties in addition
to the Interstate Commission, which shall have the force and effect of law in the
compacting states.

2.11 Interstate Commission

The ICAOS creates an Interstate Commission to oversee the operations of the Compact
nationally, enforce its provisions on the member states, and resolve any disputes that may arise
between the states. The Commission is comprised of one voting representative of each member
state to the Compact. In addition, the Compact allows for ex officio members representing
national organizations of governors, legislatures, state chief justices, attorneys general and crime
victims. The Commission is a corporate public body of the states that is engaged in public policy
making on behalf of the member states. This characterization as a “corporate public body” of the
member states may have important liability consideration regarding the actions of the
Commission.

2.11.1 Primary powers of the Commission

The powers of the Commission are laid out in Article V of the ICAOS. Among the
primary powers of the Commission are to:

43
 • Promulgate rules which are binding on the state and have the force and effect of law
within each member state.

• Oversee, supervise, and coordinate the interstate movement of offenders subject to the
Compact.

• Enforce compliance with all rules and terms of the Compact.

• Create dispute resolution mechanisms to resolve differences between the states.

• Coordinate education, training, and awareness of the Commission relative to coordinating

the interstate movement of offenders.

• Establish uniform standards for the reporting, collecting, and exchange of data.

• To perform such other functions as may be necessary to achieve the purposes of the
Compact.

2.11.2 Rulemaking Powers

Of the powers of the Commission, none is more unique and all encompassing than its
rulemaking authority. Rules promulgated by the Commission have the force and effect of
statutory law within member states and all state agencies and courts must give full effect to the
rules. See Art. IX § A. See Scott v. Commonwealth of Virginia, 676 S.E.2d 343, 346 (Va. App.
2009) (“The Interstate Commission for Supervision of Adult Offenders, ‘the Commission or
‘ICAOS’ was established by the Compact and has promulgated rules governing the transfer of
supervision from a sending state to a receiving state as well as the return to or retaking by a
sending state. The ICAOS Rules are binding in the compacting states and thus have the force
and effect of law in Virginia and Ohio.”) Id. at 346. See also Johnson v. State, 957 N.E.2d 660
(Ind. App. 2011); State v. DeJesus, 953 A.2d 45 (Conn. 2008). As the ICAOS has congressional
consent, both the Compact and its rules have the force and effect of federal law and are arguably
binding on the states under both a Supremacy Clause analysis and a Contract Clause analysis, no
state being able to impair the obligations of contracts including those entered into by the state
itself. See Doe v. Pennsylvania Board of Probation and Parole, 513 F.3d 95 (2008)(“[A]pplying
the factors set forth in Cuyler v. Adams, 449 U.S. 433, 442 (1981)” the Court held that the
Compact, “as a congressionally-sanctioned interstate compact is federal law.”) Id. at 103; See
also M.F. v. State of New York Executive Dept. Div. of Parole, supra; ICAOS v. Tennessee Bd.
of Probation and Parole, No. 04-526 KSF (E.D. Ky. 2005). In adopting rules, the Commission is
required to substantially comply with the “Government in Sunshine Act,” 5 U.S.C. § 552(b).
However, the Commission’s rulemaking process must only substantially comply with the noted
provision and is not bound by the specific terms and conditions of 5 U.S.C. § 552(b), et seq. The
Commission’s rulemaking authority is also limited by Article VIII, which provides that if a
majority of state legislatures rejects a Commission rule by enacting a statute to that effect, the
rule has no force or effect in any member state. A single state may not unilaterally reject a rule
even if it adopts legislation to that effect. Moreover, to the extent that a provision of the

44
Compact (not the rules promulgated by the Commission) exceeds the constitutional limits
imposed on a state legislature, the obligations, duties, powers, or jurisdiction sought to be
conferred on the Commission shall be ineffective and such obligations, duties, powers, or
jurisdiction shall remain in the compacting state.

The ICAOS specifically provides a mechanism by which a rule adopted by the

Commission can be challenged. Under Article VIII, not later than sixty days after the
promulgation of a rule any interested party may file a petition in the United States District Court
for the District of Columbia or the United States District Court in which the Commission has its
principal offices (currently the United States District Court for the Eastern District of Kentucky)
challenging the rule. The court can set aside a Commission rule if it is not supported by
substantial evidence in the rulemaking record as defined by the Administrative Procedures Act, 5
U.S.C. § 551, et seq. (2004).

PRACTICE NOTE: It must be noted that in promulgating a rule the Interstate Commission is
only required to substantially comply with the requirements of the Administrative Procedures
Act and therefore the setting aside of a rule would only occur upon a showing of failing to
substantially comply with the Act. A failure to absolutely comply with all aspects of the
Administrative Procedures Act is not grounds for setting aside a duly promulgated rule of the
Interstate Commission.

2.12 Enforcement of the Compact and its Rules (Art. IX & Art. XII)

One key feature of the ICAOS is the enforcement tools given to the Commission to
promote state compliance with the Compact. It should be noted that the tools provided to the
Commission are not directed at compelling offender compliance. Offender compliance is a
matter that rests with the member states’ courts, paroling authorities and corrections officials.
Rather, the tools provided for in the ICAOS are directed exclusively at compelling the member
states to meet their contractual obligations by complying with the terms and conditions of the
Compact and any rules promulgated by the Commission.

2.12.1 General Principles of Enforcement

The Commission possesses significant enforcement authority against states that are
deemed in default of their obligations under the Compact. The decision to impose a penalty for
non-compliance may rest with the Commission as a whole or one of its committees depending on
the nature of the infraction and the penalty imposed. The enforcement tools available to the
Commission include:

• Requiring remedial training;

• Mandating mediation or binding arbitration;

• Providing technical assistance;

45
 • Imposing financial penalties on a non-compliant state;

• Suspending a non-compliant state;

• Termination from the Compact; and

• Initiating litigation to enforce the terms of the Compact, monetary penalties ordered
by the Commission, or obtaining injunctive relief.

Grounds for default include but are not limited to a state’s failure to perform such
obligations as are imposed by the terms of the Compact, the by-laws of the Commission, or any
duly promulgated rule of the Commission.

2.12.2 Judicial Enforcement

The Commission can initiate judicial enforcement by filing a complaint or petition in the
appropriate U.S. district court. A member state that loses in any such litigation is required to
reimburse the Commission for the expenses it incurred in prosecuting or defending a suit,
including reasonable attorney fees. See, Art. XII § C; Rule 6.104 (prevailing party shall be
awarded all costs associated with the enforcement action, including reasonable attorneys’ fees).

PRACTICE NOTE: A state seeking to sue the Commission to challenge a rule or enforce a
provision of the Compact would have to initiate an action in one of two venues, the U.S. District
Court for the District of Columbia or federal district where the Commission has its principal
office, currently the U.S. District Court for the Eastern District of Kentucky. Art. XIII. The
Commission is entitled to reasonable attorney’s fees and costs that result from having to bring an
enforcement action against a state found to be in default of its obligations. Art. XII § C.

All courts and executive agencies in each member state must enforce the Compact and
take all necessary actions to effectuate its purposes. See, Art. IX, § A. See Scott v. Virginia, 676
S.E.2d 343, 346 (Va. App. 2009); Johnson v. State, 957 N.E.2d 660, 663 (Ind. App. 2011) (“All
of the rules and bylaws adopted by the commission established by the interstate compact are
binding upon the compacting states”) For a discussion of the application of a similar provision
in Interstate Compact on Juveniles, see, In re O.M., 565 A.2d 573 (D.C.C.A 1989) holding that
provisions in the Compact requiring rendition of a juvenile to another member state is required
by the terms of the Compact which the courts and executive agencies of the District of Columbia
must enforce. The Court of Appeals concluded that, “The courts of the District of Columbia
have no power to consider whether rendition of a juvenile under the Interstate Compact on
Juveniles is in the juvenile’s best interests.” Id. at 581. In the context of a compact, courts
cannot ignore the use of the word “shall,” which creates a duty, not an option. Id. See also, A
Juvenile, 484 N.E.2d 995, 997-998 (Mass. 1985).

The Commission is entitled to all service of process in any judicial or administrative

proceeding in a member state pertaining to the subject of the Compact where the proceedings

46
may impact the powers, responsibilities or actions of the Commission. See, Art. IX, § A. It is
not clear what impact the failure to provide service to the Commission would have on the
enforceability of a judgment vis-à-vis the Commission. However, it is reasonable to assume that
because the ICAOS mandates service of process whenever litigation affects a power,
responsibility or action of the Commission, the Commission may be an indispensable party. The
failure to join an indispensable party justifies dismissal of the suit. See, e.g., Teitelbaum v.
Wagner, 99 Fed. Appx. 272 (2nd Cir. 2004).

2.13 Immunity, Duty to Defend, and Indemnification

The ICAOS specifically provides qualified immunity to “The Members, officers,

executive director and employees of the Interstate Commission [.]” This immunity extends to
such persons in either their official or personal capacity. The ICAOS provides that the
Commission “shall defend the Commissioner of a Compacting State, or his or her representatives
or employees, or the Commission’s representatives or employees, in any civil action seeking to
impose liability, arising out of any actual or alleged act, error or omission that occurred within
the scope of Interstate Commission employment, duties or responsibilities[.]” The ICAOS
requires the Commission to indemnify and hold harmless a Commissioner, appointed designee or
employees, or the Commission’s representatives or employees in the amount of any settlement or
judgment arising out of actual or alleged errors, acts or omissions that are within the scope of the
Commission’s duties or responsibilities.

Although the “sue and be sued” provision in Article V may constitute a state waiver of
immunity for suits against the state in state courts, it does not necessarily constitute a waiver of
Eleventh Amendment immunity against suits in federal courts. Florida Department of Health
and Rehabilitative Services v. Florida Nursing Home Assoc., 450 U.S. 147, 150, 67 L. Ed. 2d
132, 101 S. Ct. 1032 (1981); accord Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35,
39-40 (2d Cir. 1977). In general, courts presume that an entity created pursuant to the Compact
Clause does not qualify for Eleventh Amendment immunity unless there is good reason to
believe that the states structured the entity to arm it with the states’ own immunity, and that, if
applicable, Congress concurred in that purpose. See, Lake Country Estates, Inc. v. Tahoe Reg’l
Planning Agency, 440 U.S. 391 (1979). See, also, Watters v. Wash. Metro. Area Transit Auth.,
295 F.3d 36 (D.C. Cir. 2002), cert. denied 538 U.S. 922 (2003). Arguably the ICAOS evidences
intent by the states to be financially and administratively responsible for the actions of the
Commission, which may provide Eleventh Amendment immunity under the test articulated in
Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994). This has not, however, been
judicially determined.

Even where the Eleventh Amendment does not offer protection, the Commission may be
immune from suit under the laws of the states that created the Commission. Such immunity is
governed by state sovereign immunity considerations. Whether the “sue and be sued” provision
of the ICAOS constitutes a waiver of state sovereign immunity in this context has not been
judicially determined; some courts have interpreted “sue and be sued” provisions as a waiver of
immunity depending on the language of the provision. See, Port Authority Trans-Hudson Corp.
v. Feeney, 495 U.S. 299 (1990) (New York and New Jersey consented to suit against PATH in

47
federal court.). But see, Tooke v. City of Mexia, 197 S.W.3d 325 (Texas Supreme Ct. 2006)
(Use of provisions in various statutes, including one creating an interstate compact agency,
stating that such agencies may “sue and be sued” did not, “merely by using such phrases, clearly
waive governmental immunity from suit and instead merely addressed such governmental
entity’s capacity to engage in the activities encompassed in those phrases.”) also, Watters v.
Wash. Metro. Area Transit Auth., supra at 40 (“We may find a waiver of sovereign immunity
‘only where stated by the most express language or by such overwhelming implications from the
text [of the compact] as will leave no room for any other reasonable construction.’” (Citations
omitted). See Moroney v. Waterfront Commission of New York Harbor, supra.

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 CHAPTER 3

THE ICAOS IMPLICATIONS FOR THE COURTS

The rules of the Commission are applicable on the states by the terms of the Compact.
Rules adopted by the Commission have the force and effect of statutory law and all courts and
executive agencies must take all necessary actions to enforce their application. See, Art. V. See
also Scott v. Virginia, 676 S.E.2d 343, 346 (Va. App. 2009). The failure of state judicial or
executive branch officials to comply with the terms of the compact and its rules would result in
the state defaulting on its contractual obligations under the Compact and can lead the
Commission to take remedial or punitive action against a state, including suit in federal court for
injunctive relief. See, Art. XII § C. All state laws that conflict with the Compact are superseded
to the extent of any such conflict. See, Art. VIX § A. Given the broad definitions in the
Compact, the Commission is not limited to certain classifications of offenders, unless it decides
to be so limited. See Commission Rules. As a congressional approved interstate compact, the
Compact has the force and effect of federal law pursuant to the Supremacy Clause.

PRACTICE NOTE: No court can order relief that is inconsistent with the terms and conditions
of the Compact; a principle that extends also to the rules of the Commission. This principle
would extend to state court enforcement of the Compact as federal law under the Supremacy
Clause.

3.1 Key Definitions in the Rules

The following key terms and their definitions supplement terms defined in the Compact.
They should be of special interests to judicial authorities:

• Abscond means to be absent from the offender’s approved place of residence or

employment and avoiding supervision.

• Arrival means to report to the location and officials designated in reporting

instructions given to an offender at the time of the offender’s departure from a
sending state under an interstate compact transfer of supervision.

• Compliance means that an offender is abiding by all terms and conditions of

supervision, including payment of restitution, family support, fines, court costs or
other financial obligations imposed by the sending state.

• Deferred Sentence means a sentence the imposition of which is postponed

pending the successful completion by the offender of the terms and conditions of
supervision ordered by the court.

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• Plan of Supervision means the terms under which an offender will be supervised,
including proposed residence, proposed employment or viable means of support
and the terms and conditions of supervision.

• Probable Cause Hearing means a hearing in compliance with the decisions of

the U.S. Supreme Court, conducted on behalf of an offender accused of violating
the terms or conditions of the offender’s parole or probation.

• Relocate means to remain in another state for more than 45 consecutive days in
any 12-month period.

• Sex Offender means an adult placed under, or made subject to, supervision as the
result of the commission of a criminal offense and released to the community
under the jurisdiction of courts, paroling authorities, corrections, or other criminal
justice agencies, and who is required to register as a sex offender either in the
sending or receiving state and who is required to request transfer of supervision
under the provisions of the Interstate Compact for Adult Offender Supervision.

• Significant Violation means an offender’s failure to comply with the terms or

conditions of supervision that, if occurring in the receiving state, would result in a
request for revocation of supervision.

• Special Condition means a condition or term that is added to the standard

conditions of parole or probation by either the sending or receiving state.

• Substantial Compliance means that an offender is sufficiently in compliance

with the terms and conditions of his or her supervision so as not to result in
initiation of revocation of supervision proceedings by the sending state.

• Violent Crime means any crime involving the unlawful exertion of physical force
with the intent to cause injury or physical harm to a person; or an offense in which
a person has incurred direct or threatened physical or psychological harm as
defined by the criminal code in which the crime occurred; or the use of a deadly
weapon in the commission of a crime; or any sex offense requiring registration.

• Waiver means the voluntary relinquishment, in writing, of a known constitutional

right or other right, claim or privilege by an offender.

• Warrant means a written order of the court or authorities of a sending or

receiving state or other body of competent jurisdiction which is made on behalf of
the state, or United States, issued pursuant to statute and/or rule and which
commands law enforcement to arrest an offender. The warrant shall be entered in
the National Crime Information Center (NCIC) Wanted Person File with a
nationwide pick-up radius with no bond amount set.

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3.2 Judicial Considerations

3.2.1 Offender Eligibility Criteria

Determining offender eligibility under the Compact requires a multi-prong analysis

beginning with the broad definition of an offender. An “offender” means “an adult placed under,
or made subject to, supervision as a result of the commission of a criminal offense and released
to the community under the jurisdiction of courts, paroling authorities, corrections or other
criminal justice agencies, and who is required to request transfer of supervision under the terms
and conditions of supervision.” See, Art. II; Rules § 1.101. If an offender is an “offender” for
purposes of the Compact, the inquiry must then determine whether the nature of the offense and
the nature of the supervision disqualify an offender for transfer of supervision.

The definition of offender contained in the compact is generally mimicked in the

Commission’s rules. In interpreting the definition of “offender,” the Commission has observed
that the type of supervision to be undertaken in a receiving state is not a factor in determining
whether an offender is eligible for transfer. See, Advisory Opinion 9-2004 (sex offender
sentenced to community supervision for life pursuant to state statute is eligible for transfer under
the compact provided all other conditions for transfer have been met). Thus, the nature of the
supervision to be provided is generally not a criterion for determining whether an offender is
eligible for transfer under the compact, so long as the offender is subject to some type of
community supervision. Additionally, because of the broad definition of offender the compact
covers those under supervision of probation and parole officials, departments of corrections,
courts, related agencies, and private firms acting on behalf of courts and corrections authorities.
See, Advisory Opinion 8-2004.

PRACTICE NOTE: Several factors may disqualify an offender from transfer of supervision
under the ICAOS. Those factors may include not meeting the definition of an offender, not
having committed an offense covered by the compact, or not being subject to some form of
community supervision. If an offender fails to meet any of the status criteria, the offender is not
subject to the ICAOS. Offenders not subject to the ICAOS may, depending on the terms and
conditions of their adjudication, be free to move across state lines without prior approval from
the receiving state.

3.2.1.1 Offenders Covered by the ICAOS

The Compact itself defines an offender as “an adult placed under, or subject to
supervision as the result of the commission of a criminal offense and released to the community
under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice
agencies.” See, Art. I. By this definition, the Commission can regulate the full breadth of adult
offenders. An adult offender does not have to be in a formal “probation” or “parole” status as
those terms are traditionally applied to qualify for transfer and supervision under the ICAOS.
The broad definition of “offender” was intended to correct perceived problems with the ICPP,
which encouraged states to claim that certain individuals were exempt from coverage of the
agreement by use of the explicit language of “probationers” and “parolees,” terms that were

51
given a narrow definition and application. As a general statement, to initially qualify for transfer
of supervision under the ICAOS, the offender must (1) be subject to some form of community
supervision, including supervision by a court, paroling authority, probation authority, treatment
authority or anyone person or agency acting in such a capacity or under contract to provide
supervision services, and (2) have committed a covered offense as defined by the rules.

PRACTICE NOTE: An undocumented immigrant who meets the definition of “offender” and
seeks to transfer under the Compact is subject to the jurisdiction of the Compact and the
immigrant’s status as “undocumented” would not be a per se disqualification as long as the
immigrant establishes that the prerequisites of Rule 3.101 have been satisfied. This includes the
requirement that the immigrant be in ‘substantial compliance’ with the terms and conditions of
supervision in the sending state. See, Advisory Opinion 13-2006.

Offenders ELIGIBLE FOR TRANSFER of supervision under the ICAOS and its rules
include:

• Those subject to traditional parole or probation, e.g., offenders found guilty and
sentenced;

• Those subject to deferred sentencing such as suspended imposition of sentences if

some form of community supervision and/or reporting is a condition of the court’s
order;

• Those subject to deferred execution of sentence if some form of community

supervision and/or reporting is a condition of the court’s order;

• Those subject to other “non-standard” forms of disposition as determined by the

Commission if some form of community supervision and/or reporting is a condition
of the court’s order;

• A juvenile offender treated as an adult by court order, statute, or operation of law;

• A misdemeanant provided they are subject to one year or more supervision and were
convicted of one of the following offenses:

• An offense resulting in direct physical or psychological harm to another person

(See, ICAOS Advisory Opinion 16-2006 for clarification);

• An offense involving the possession or use of a firearm; (See, ICAOS Advisory

Opinion 1-2011 for clarification);

• A second or subsequent offense of driving while impaired by drugs or alcohol; or

(See, ICAOS Advisory Opinion 7-2006 for clarification);

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 • A sex offense requiring the offender to register as a sex offender under the laws of
the sending state. (Rule 2.105)

• Those subject to deferred prosecution programs to the extent that participation in such
programs requires the offender to make material admissions of fact and waive all or
some of their constitutional rights. See, ICAOS Advisory Opinion 6-2005

PRACTICE NOTE: Pursuant to Rule 2.110, with limited exception, no state is permitted to
allow a person covered by the Compact to relocate to another state except as provided in the
Compact and its rules. Therefore, a court cannot order or otherwise direct an otherwise covered
offender to leave a state and relocate to another state unless such relocation is done in accordance
with the Compact and its rules.

Those NOT ELIGIBLE FOR TRANSFER of supervision under the ICAOS and its rules
include:

• Offenders on furlough or work release (Rule 2.107);

• Misdemeanants not subject to the qualifications contained in Rule 2.105;

• Non-criminals such as those convicted of infractions or subject to a civil penalty

system, See Com. of Virginia v. Amerson, 706 S.E.2d 879 (2011) (offenders
convicted under Sexually Violent Predators Act (SVPA) ineligible for transfer under
ICAOS because the act is civil not criminal); and

• Juvenile offenders who are not deemed “adults” for purposes of prosecution.

3.2.1.2 Eligibility of Offenders, Residency Requirements – General Overview

Transfer of offenders falls in one of two categories, (1) mandatory acceptance transfers
and (2) discretionary acceptance transfers. The authority to approve an offender for out-of-state
placement lies exclusively within the discretion of the sending state. (Rule 3.101) The offender
has no constitutional right to transfer their supervision to another state, even if the offender is
otherwise qualified. Rule 3.101, therefore, should not be interpreted as creating on behalf of an
offender any constitutionally protected interest to relocate. Rather, Rule 3.101 creates an
obligation on a receiving state to accept an offender for supervision once the sending state has
made a determination to transfer supervision. The sending state’s denial of the transfer of
supervision would appear absolute and is entitled to deference by courts. See Com. v. Mowry,
921 N.E.2d 565 (Mass. App. 2010); also Virgin Islands v. Miller, 2010 WL 1790213 (V.I. Super.
Ct. St. Thomas Division 2010); Strong v. Kansas Parole Bd., 115 P.3d 794 (Kan. Ct. App. 2005)

If a sending state decides to transfer supervision and the offender has three months or
more or an indefinite period of supervision remaining, the receiving state must accept the
transfer if the offender:

• Is in substantial compliance with a valid plan of supervision, and

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 • Is a resident of the receiving state, or

• Has resident family in the receiving state who has indicated (1) a willingness to assist
in satisfying the plan of supervision, and (2) the offender can obtain employment or
has a means of support.

If a valid plan of supervision includes an obligation on the offender to demonstrate that they have
a means of economic support, the offender’s failure to meet that obligation may result in denial
of transfer even if the offender meets the residency requirements. See, Advisory Opinion 8-2005
and Rule 1.101 definition of Resident.

PRACTICE NOTE: The decision to transfer supervision of an offender is purely within the
discretion of authorities in the sending state. Rule 3.101 neither creates nor grants to an offender
a constitutionally protected right to relocate.

After a sending state grants permission to an offender meeting the mandatory acceptance
criteria to relocate, the receiving state must assume supervision over the offender and treat the
offender in the same manner as in-state offenders. This principle applies to both the quality and
quantity of supervision as well as access to rehabilitative programs. See Doe v. Pennsylvania
Board of Probation & Parole, 513 F.3d 95, 108 (3rd Cir. 2008) (“By signing the Interstate
Compact, Pennsylvania has agreed that, when accepting out-of-state probationers who transfer
their parole and their residence to the Commonwealth, it will approximate the same procedure
and standards it applies to its own probationers.”). A receiving state may impose special
conditions on an out-of-state offender if they assist in offender rehabilitation and promote
community safety. See, discussion, infra, at § 3.3.2. It would be a violation of the Compact for a
receiving state to create barriers to transfer or to impose conditions on out-of-state offenders that
it would not otherwise impose on in-state offenders. See e.g., ICAOS v. Tennessee Bd. of
Probation and Parole, No. 04-526 KSF (E.D. Ky. 2005). Rule 3.101 affirms the sole discretion
of the sending state and prevents the receiving state from attempting to unilaterally add
conditions in order to stifle the transfer of offenders it deems undesirable or for whom it is
attempting to “shift” to the sending state some financial obligation related to the offender’s
supervision. See, Doe v. Ward, 124 F. Supp.2d 900 (W.D. Pa. 2000) (interpreting a similar
provision in the old ICPP to negate certain provisions of Pennsylvania’s “Megan’s Law” which
treated out-of-state offenders differently from in-state offenders). See also, ICAOS Advisory
Opinion 9-2004 (Dec. 2, 2004) (“[I]t is our opinion that CSL offenders are subject to supervision
under the Interstate Compact for Adult Offender Supervision and upon proper application and
documentation of a valid plan of supervision and verification of residency and employment
criteria as required under those rules should be permitted to transfer to other states for
supervision under the Compact.”).

A receiving state can consent to accept supervision of an offender who does not meet the
mandatory acceptance criteria. However, the acceptance of supervision under circumstances
other than those above is discretionary with the receiving state. For example, the Commission
has opined in ICAOS Advisory Opinion 4-2005 that an offender who is ineligible for mandatory
transfer due to the nature of the offense or the offender’s failure to meet residency and

54
employment requirements may be transferred under the discretionary provisions of the rules.
Under such circumstances transfer may be warranted when in the opinion of both the sending
and receiving states such a transfer is in the interests of justice and rehabilitation. It must be
emphasized, however, that a discretionary transfer requires the consent of both sending and
receiving states and the failure to obtain such consent prohibits the transfer of supervision.

PRACTICE NOTE: Acceptance of offenders on grounds other than those mandated in Rule
3.101 lies within the discretion of the receiving state under Rule 3.101-2.

The sending state must submit to the receiving state a request to transfer supervision
along with all relevant information necessary for the receiving state to investigate and accept the
transfer. Rule 3.107 sets out the information that must be provided to a receiving state prior to
transfer of the offender.

With limited exceptions, a sending state shall not allow an offender to relocate without an
explicit acceptance of the offender by the receiving state. See Rule 2.110. In the absence of an
exception provided in the rules, allowing the offender to relocate prior to acceptance may trigger
two events: (1) the sending state shall order the offender to return to the sending state, and (2)
the receiving state can reject the placement. See, ICAOS Advisory Opinion 9-2006. At least one
court has interpreted this rule, with deference to the advisory opinion, and concluded that while a
receiving state ‘can properly’ reject the application for transfer of supervision under the compact
it is not required “to deny the application on that basis.” See In the Matter of Terrill Paul, (2010
WL 4028588 (N.J. Super. A.D.) If the placement is rejected, the sending state would have to
reinitiate the transfer request. Id. Practically this means that no court or paroling authority may
authorize an offender to relocate before acceptance by the receiving state, unless the transfer of
supervision is accomplished pursuant to expedited reporting instructions under Rule 3.106 or
Rule 3.103. See discussion, infra § 3.2.2.5.

Of particular concern to judges may be the investigation period. Under Rule 3.104 a
receiving state has up to 45 days to investigate and respond to a sending state’s request to
transfer. There are provisions for emergency transfers (Rule 3.106) to expedite reporting
instructions. As noted, Rule 3.103 provides a limited probation exception to restrictions on
transfer prior to acceptance. In general, however, a probationer or parolee is not allowed to
travel to a receiving state (unless for employment purposes previously established prior to the
transfer request See Rule 3.102 (c)) until the receiving state has investigated, accepted transfer of
the offender, and has issued reporting instructions.

In addition, within one business day of receiving reporting instructions or acceptance of

transfer by a receiving state, the sending state must notify crime victims pursuant to applicable
state law that a transfer will occur. (Rule 3.108). The rules also set out guidelines by which
victims can request the opportunity to be heard on the offender’s transfer or return request.
(Rule 3.108-1).

As a precondition to transfer, the offender must agree to waive extradition from any state
to which the offender may have absconded while under supervision in the receiving state. States

55
to the Compact waive all legal requirements regarding extradition of offenders who are fugitives
from justice. (Rule 3.109)

3.2.1.3 Special Rules for Military Personnel and Their Families

Rule 3.101-1 addresses three categories of military individuals: (1) military personnel, (2)
family members living with military personnel; and (5) veterans for medical or mental health
services.

Military Personnel are eligible for reporting instructions and transfer through the ICAOS
when they are being deployed by the military to another state.

If an offender lives with a family member who is in the military, that offender’s
supervision is subject to transfer through the ICAOS if they:

(1) have three months or more supervision remaining;

(2) are in substantial compliance with the terms and conditions of their supervision;

(3) have a valid plan of supervision;

(4) can obtain employment in the receiving state or have a means of support;

(5) are moving to another state as a result of the military deployment of a family
members; and

(6) will be living with the family member who is subject to the military deployment.

Veterans referred for medical and/or mental health services in a receiving state by the
Veterans Health Administration are eligible transfer supervision if they:

(1) have three months or more supervision remaining;

(2) are in substantial compliance with the terms and conditions of their supervision;

(3) have a valid plan of supervision; and

(4) the sending state provides referral documentation and is approved for care at the
receiving state Veterans Health Administration.

See, Rule 3.101-1.

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3.2.1.4 Employment Transfers of Offenders and Their Families

The other circumstances in which a receiving state is mandated to accept supervision

involves the employment transfer of an offender and the employment transfer of a family
member with whom the offender resides with to another state. Rule 3.101-1(c) and (d) covers
such instances. An offender is eligible to have supervision transferred to another state if they:

(1) have three months or more of supervision remaining;

(2) are in substantial compliance with the terms and conditions of their supervision;

(3) have a valid plan of supervision; and

(3) are directed to transfer by either the offender’s or offender’s family member’s full-
time employer as a condition of maintaining employment.

3.2.1.5 Persons Not Covered by the ICAOS

An offender not subject to the ICAOS is not eligible to have their supervision transferred
to another state but neither are they restricted in their travels except as otherwise ordered by the
sentencing court. See, Sanchez v. N.J. State Parole Bd., 845 A.2d 687, 692 (N.J. Super. Ct. App.
Div. 2004) (“New York cannot have it both ways. If CSL defendants do not fall within the
purview of ICAOS, then New Jersey has no obligation to prevent them from moving to New
York. If New York is willing to permit the change of residency, assuming the other criteria of
ICAOS are met, we expect that New Jersey will cooperate fully to the extent and in the manner
allowed by the laws of this state and the rules of ICAOS.”) Offenders with three months or less
of supervision and offenders not subject to some form of community supervision are generally
free to travel. This is in large measure because the duration of supervision does not warrant
further consideration in the receiving state or because the nature of the offense is such that a
court did not see continuing supervision a necessary element of the sentence. Thus, for example,
individuals convicted of low-level misdemeanor offenses and subject only to “bench probation”
with no reporting requirements or no conditions other than monetary conditions whose only
requirement is to “go and commit no further offense” are not covered by the Compact. However,
a court should not attempt to circumvent the Compact by placing offenders in “unsupervised”
status, particularly offenders who pose a public safety risk to others. Such an action would not
comport with the purpose and spirit of the Compact, and may act to encourage other states to
take similar actions thereby compromising the underlying purposes of the Compact. Placing an
offender on “bench probation” as a means of circumventing the ICAOS carries with it the high
probability of additional harm to the community if the offender is high risk.

An offender who is not in substantial compliance with the terms and conditions of their
supervision and who has nevertheless committed an eligible offense cannot be transferred
through the Compact because of their improvident behavior. In such cases, the offender is not
permitted to travel or relocate to another state; the ICAOS and its rules acting as a bar to such
action. If an offender is subject to the ICAOS, the Compact offers the only means for transfer of
supervision as the ICAOS contains no provision authorizing “side agreements” between member

57
states. Compare, INTERSTATE COMPACT FOR THE PLACEMENT OF CHILDREN, ART. VIII(b)
(compact shall not apply where another agreement “between said states * * * has the force of
law.”).

3.2.1.6 Sentencing Considerations

In general the ICAOS applies to all offenders meeting the eligibility requirements and
who are subject to some form of community supervision or corrections. Unlike the ICPP, which
could be interpreted as applying expressly to “probationers” and “parolees,” the use of the term
“offender” in the ICAOS was intended to provide reach that is more sweeping and flexibility in
managing the offender population as current and future sentencing practices change. Therefore,
whether an offender is “sentenced” and subject to formal “probation” or “parole” is a largely
irrelevant inquiry. From the judiciary’s perspective the relevant inquiry in determining whether
ICAOS is a factor centers on two considerations: (1) what did the court do, and (2) was the end
consequence of the court’s action community supervision. Therefore, the ICAOS has application
in a broad range of cases and dispositions beyond traditional conviction followed by probation.

3.2.1.6.1 Deferred Sentencing

In addition to traditional cases where an offender is formally adjudicated and placed on

probation, the ICAOS also applies in so-called “suspended sentencing,” “suspended
adjudication,” and “deferred sentencing” contexts. Rule 2.106 provides that “Offenders subject
to deferred sentences are eligible for transfer of supervision under the same eligibility
requirements, terms and conditions applicable to all offenders under this Compact. Persons
subject to supervision pursuant to a pre-trial intervention program, bail, or similar program are
not eligible for transfer under the terms and conditions of this Compact.” In interpreting this
rule, the Commission has issued an opinion advising as follows:

In the case of a “deferred sentence” under Rule 2.106, the rule would
apply if the court has lawfully entered a conviction on its records even if it has
suspended the imposition of a final sentence and has subjected the offender to a
program of conditional release. The rule would also apply where the defendant
has entered a plea of guilt or no contest to the charge(s) and the court has accepted
the plea but suspended entry of a final judgment of conviction in lieu of placing
the offender in a program of conditional release, the successful completion of
which may result in the sealing or expungement of any criminal record. Finally,
the rule would apply where the court has entered a conviction on the record and
sentenced the offender but has suspended execution of the sentence in lieu of a
program of conditional release.

The operative consideration for purposes of Rule 2.106 is whether the

court has, as a condition precedent, made some finding that the offender has
indeed committed the offense charged. This finding, by a court of competent
jurisdiction, whether technically classified as a “conviction” under the terms of an
individual state’s law, makes an individual an offender for purposes of the
Compact. The offender is no longer in a pretrial, presumed-innocent status, but

58
 has been found to have committed the charged offense notwithstanding the
decision of the court to withhold punitive sentencing in favor of an alternative
program of corrections, such as deferment, probation in lieu of sentencing,
suspended imposition of sentence, or suspended execution of sentence. (Emphasis
added).

It must be emphasized, given the overall purposes of the Compact and the
status of the compact as federal law that an individual state’s statutory scheme
that can vary remarkably from state to state is of limited benefit in determining
whether an offender is subject to the Compact. Individual states can use terms
remarkably different from other states’ to describe what is, in essence, the same
legal action. In determining the eligibility of an offender and the application of
the ICAOS, one must look not at the legal definitions but rather the legal action
taken by a court of competent jurisdiction or paroling authorities. To find
otherwise would lead to disruptions in the smooth movement of offenders, the
equitable application of the ICAOS to the states, and the uniform application of
the rules.

See, ICAOS Advisory Opinion, June 30, 2004.

In addition to the nature of the adjudication, eligibility also turns on the nature of the
supervision ordered. The Commission defines the term “supervision” as follows:

“Supervision” means the oversight exercised by authorities of a sending or

receiving state over an offender for a period of time determined by a court or
releasing authority, during which time the offender is required to report to or be
monitored by supervising authorities, and to comply with regulations and
conditions, other than monetary conditions, imposed on the offender at the time of
the offender’s release to the community or during the period of supervision in the
community. (Rule 1.101 definitions).

The Commission does not deem dispositions such as “bench” probation as eligible for
transfer under the ICAOS because such dispositions are more along the lines of “go and commit
no further offenses.” The supervision contemplated by the Commission appears to be more
formal, having elements akin to traditional notions of regular reporting and supervision
requirements. A sentence that essentially states “go and commit no other offense” and that does
not include supervision and reporting requirements does not appear to create a “supervision”
relationship between the offender and the court sufficient to trigger the ICAOS. However, to the
extent that reporting requirements may be imposed on an offender, even if only to the court, that
offender may be subject to the ICAOS all other eligibility requirements having been met. This is
a particularly important consideration when courts sentence offenders to probation with only a
treatment element and reporting requirements. Such offenders may be subject to the ICAOS.
See, discussion, infra at 3.2.2.1.

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3.2.1.6.2 Deferred Prosecution

Some states may employ a “sentencing” option referred to as deferred prosecution. Such
sentences, generally authorized by a state’s statutes, allow for an offender to admit under oath or
stipulate to the facts of the criminal conduct but defer prosecution conditioned upon the offender
completing some type of treatment program or meeting other conditions. Generally, if the
offender successfully complies with the court’s order, the case is dismissed and no criminal
judgment is entered. If the offender fails to comply with the court’s order, the court may enter a
judgment of conviction and proceed to criminal sentencing.

At issue in deferred prosecutions is whether the offender is covered by the ICAOS

because there is no conviction, the offender arguably being in a “pretrial” status. However, the
Commission has interpreted its rules to apply to such offenders. See, Advisory Opinion 6-2005.
In reaching its conclusion that the Compact covers such offenders, the Commission has opined
that there is little functional difference between a “deferred prosecution” and a “deferred
sentence.” In both cases, the offender is generally required to stipulate to the facts of the
underlying criminal conduct. While in the deferred prosecution context the court does not enter
a judgment of conviction and then suspend sentencing (as is the case in deferred sentencing), the
court nevertheless accepts the offender’s admission to certain facts and places the offender on a
probationary-type status. Unlike a pretrial offender whose guilt has not been established by trial
or admissions, the deferred prosecution offender has admitted to the essential facts of their
conduct and no longer enjoys the status of “innocent until proven guilty.” As the Commission
has noted, “In determining that Rule 2.106 applies here [to deferred prosecutions], we are
considering the action actually taken by the offender and the court rather than the label used by
the legislature.” Considerations in determining whether the Compact would cover an offender
subject to a deferred prosecution program include, but are not limited to:

• Is the offender required to make material and binding factual admissions before a
court concerning the circumstances of the case such that practically there is no
question that an offense has been committed?

• Upon violation of the terms and condition of the deferred prosecution program, is the
offender returned to court and in jeopardy of having a conviction entered without
trial?

• Is the offender, as a condition of participation in a deferred prosecution program,

required to waive material rights concerning future court proceedings, such as the
right to contest the facts, confront witnesses and offer exculpatory evidence?

An offender in a deferred prosecution program that includes some of these elements,

particularly those regarding admissions of material fact and waiver of rights, would be subject to
the Compact. By contrast, an offender in a deferred prosecution program that is run exclusively
as a prosecutorial diversion program and that does not involve the courts or require an offender
to waive fundamental rights in future proceedings is like not covered by the Compact.

3.2.1.6.3 Release from “Shock” Programs

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 Generally, those subject to programs such as “shock incarceration,” “shock parole” or
“shock probation” are eligible for transfer under the ICAOS so long as all other requirements are
met. These programs may also fall within the category of “judicial call-back” or “judicial
release” programs. A sending state seeking to transfer supervision of offenders within its
corrections systems generally has advanced knowledge of the release date and therefore
sufficient time to arrange for the transfer of supervision. However, the creation of “shock”
programs has in some cases blurred the distinction between traditional probation and parole. It is
increasingly common for states to place offenders on probation after a short period of
incarceration. Nevertheless, the Commission has held that offenders released from prison (as
distinguished from local jails) even under a “shock” program are ineligible to relocate to another
state until after acceptance by the receiving state, amendments to Rule 3.103 notwithstanding.
See, ICAOS Advisory Opinion 1-2006.

3.2.1.6.4 What Constitutes Second and Subsequent Offense of Driving While Impaired?

Special attention should be noted to offenders convicted of a second or subsequent

offense of driving while impaired (DUI and DWI offenses). Because various states’ laws differ
widely on what constitutes a second or subsequent offense, the Commission has issued ICAOS
Advisory Opinions to clarify the application of the ICAOS to such offenders. In the advisory
opinion, the Commission observed that even if the sentencing court deems a second or
subsequent conviction a “first conviction” for sentencing purposes, the Commission considers
the actual number of offenses not the manner in which the offense may be treated for sentencing
purposes by individual state laws. An offender convicted of a second or subsequent offense but
sentenced as a first-time offender is nevertheless an offender subject to the ICAOS. See, ICAOS
Advisory Opinion 7-2006.

3.2.2 Special Considerations

3.2.2.1 Out-of-state Treatment

One area for potential confusion centers on the issue of treatment in lieu of supervision or
treatment as supervision. In such cases, courts may be inclined to defer sentence and place an
offender on “bench probation,” an element of which is enrollment in a community-based or in-
house treatment program in another state. Successful completion of the treatment program is
generally a condition of the supervision program. Such treatment programs may include drug
treatment, mental health treatment, or sex offender treatment, to name a few. The difficulties
with these programs arise when an offender in one state is required to enroll in a treatment
program only available in another state and whether such situations constitute circumstances that
would trigger the ICAOS.

The Commission has opined that placement of an offender in an out-of-state treatment

program may trigger the requirements of the Compact even if the offender is not subject to
supervision by corrections officials. In ICAOS Advisory Opinion 3-2005, the Commission
determined that an offender who was required to participate in a treatment program in another
state was subject to the Compact. The Commission noted that even in the absence of direct

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supervision by corrections officials, a provision in a court order requiring the treatment provider
to provide progress reports or to report violations of the treatment regime to the court constituted
“supervision” for purposes of triggering the Compact. The imposition of a treatment component
as a condition of release with the corresponding requirements of progress reporting to the court
and the probability of probation revocation upon failure to comply was sufficient to require the
sending state to comply with the Compact and its rules.

Moreover, if covered by the ICAOS, enrollment in out-of-state treatment programs would

appear to fall exclusively within the definition of “discretionary” acceptance, unless the
conditions of Rule 3.101 concerning residency or family ties with a means of support are met.
Consequently, courts should be exceedingly cautious in sentencing offenders, and particularly
high-risk offenders, to treatment programs in other states as a means of circumventing the
ICAOS. Such sentences may trigger the ICAOS and where they do trigger the ICAOS may
place an offender in the impossible situation of being required to participate in a treatment
program but unable to transfer to that program because the receiving state has declined to accept
the case.

3.2.2.2 Duration of Supervision

Rule 4.102 provides that, “A receiving state shall supervise an offender transferred under
the interstate compact for a length of time determined by the sending state.” (Emphasis added)
Therefore, the duration of supervision is a matter that rests exclusively within the authority of the
sending state and over which officials in the receiving state have little to no discretion. A
receiving state would be required under the rules to supervise an out-of-state offender even if the
duration of that supervision would supersede the duration of supervision normally afforded an
in-state offender.

Several states in an effort to monitor high-risk offenders, such as sex offenders, have
created supervision programs designated as “CSL” programs, or “Community Supervision for
Life.” These programs generally require that high-risk offenders be subject to continuing
community-based supervision for very long periods including the natural life of the offender.
The conflict that such programs create centers on the obligation of the receiving state to provide
a level of supervision that its own state laws may not recognize. Additionally, CSL programs
can be a significant resource drain adding to the pressure on receiving states to either reject such
cases or prematurely terminate supervision of an offender. This is precisely the issue that arose
between New York and New Jersey, and that led to ICAOS Advisory Opinion 9-2004 (Dec. 2,
2004).

In interpreting the ICAOS and its rules, the Commission opined that duration of
supervision (as distinguished from the amount of supervision remaining under Rule 3.101) is not
a consideration for eligibility under the ICAOS. Eligibility to transfer supervision is controlled
by the nature of the offense, the nature of the sentence and the status of the offender. Thus, an
offender who is subject to CSL or an exceedingly long period of supervision and who meets the
criteria of Rule 3.101 is eligible to transfer supervision notwithstanding the duration of the
supervision imposed by the sending state. See, ICAOS Advisory Opinion 9-2004 (Dec. 2, 2004).
It should be noted also that the receiving state is obligated by Rule 4.101 (discussed immediately

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below) to supervise the offender in a manner determined by the receiving state that is consistent
with the supervision it provides other like offenders. Rule 4.101 is, however, directed more at
the quality of supervision than the length of supervision and does not appear to supersede or
change the receiving state’s obligations regarding the duration of supervision; the latter being a
matter, as noted, that is determined by the sending state as part of its judicial or parole
proceedings.

A receiving state may close supervision for the reasons stated in Rule 4.112. These
reasons include (1) the offender has been discharged, (2) the offender has absconded, (3)
notification of death, (4) notification to the sending state that the offender has been sentenced to
a term of incarceration of 180 days or more and the sending state has failed to provide a warrant,
detainer or other acknowledgement with 90 days of notification, or (5) the offender has been
returned to the sending state. A receiving state’s decision to close supervision for the reasons
contained in Rule 4.112 does not preclude the offender from being subject to the Compact. See,
Advisory Opinion 11-2006.

3.2.2.3 Type of Supervision in Receiving State & Disabled Offenders

Rule 4.101 mandates that the receiving state supervise the offender in a manner
determined by the receiving state and consistent with the supervision it provides similar
offenders in the state. While the sending state has sole authority to determine the duration of
supervision either by way of the court’s sentence of by paroling authorities (see, Rule 4.102), the
receiving state retains discretion as to the type of supervision it will provide. See Warner v.
McVey, (2010 WL 3239385 (W.D. Pa. 2010), also State v. Warner, 760 N.W.2d 209, 2008 WL
5009279 (Iowa App., 2008). Consequently, there can be qualitative differences between the
intensity of services that a sending state would have provided an offender and the services a
receiving state will provide the offender under its own rules and laws. Additionally, a receiving
state is obligated to continue to supervise offenders “who become mentally ill or exhibit signs of
mental illness or who develop a physical disability while supervised in the receiving state.” (Rule
2.108) It would, therefore, be impermissible for a receiving state to seek to terminate
supervision or to demand that a sending state retake an offender purely because the offender has
become mentally or physically disabled.

3.2.2.4 Time of Transfer

Commission rules can have a great bearing on the time between final disposition of a
case and when the offender can actually move to another state. To the extent that an offender is
eligible for transfer under the Compact, a court does not have authority to order the offender to
the receiving state prior to acceptance. Therefore, it is possible that the offender – even if a
resident of the receiving state – will have to remain within the custody of the sending state until
such time that the transfer is approved and reporting instructions are issued by the receiving
state. See In the Matter of Terrill Paul supra. at 3.2.1.2

Assuming the offender is eligible for transfer pursuant to Rule 3.101, several
Commission rules governing transfers apply and should be of particular interest to courts. Rule

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3.102 requires that a sending state send to the receiving state an application for transfer of
supervision and all pertinent information prior to allowing the offender to relocate. The
receiving state has 45 calendar days to undertake an investigation and review the proposed
transfer. (Rule 3.104) In the event the sending state fails to provide all needed information as
required by Rule 3.107, the receiving state shall reject the request and provide specific reason(s)
for rejection. (Rule 3.104(b)) Therefore, failure of court personnel to transmit all necessary
information to their interstate compact office may substantially delay the processing of the
transfer request. Incomplete requests are not sufficient and the receiving state is within its
prerogative to deny transfer. See e.g., ICAOS Advisory Opinion 5-2005.

With regard to incarcerated offenders, under Rule 3.105 a sending state is required to
submit a completed request for transfer of supervision no earlier than 120 days prior to the
offender’s planned release from a correctional facility. This rule has been interpreted to mean
that “the process for transferring parole to a sister state cannot be commenced until the inmate is
given a release date.” In re James A. Sauers, (2010 WL 290584 (Cal. App. 6 Dist., Feb. 11,
2010); also ICAOS Advisory Opinion 5-2005.

3.2.2.5 Expedited Transfers

The Commission has provided through rule the option of “expedited reporting
instructions,” which effectively allows the offender to transfer supervision on a “pending
acceptance” basis. To qualify for expedited reporting instructions the sending and receiving state
must agree that an emergency exists justifying such transfer of an offender. See Rule 3.106. The
receiving state must provide a response to a request for expedited reporting instructions no more
than two (2) business days after receipt of the request from the sending state after which the
sending state, upon obtaining the offender’s signature on all necessary forms, must issue a
departure notice at the time the offender leaves the state. The granting of expedited instructions
does not limit the authority of the receiving state to eventually reject the transfer of supervision
upon full investigation. In such event, the offender is required to return to the sending state. If
the offender fails to return to the sending state, that state must initiate retaking procedures to
obtain custody and return the offender. The provisions of Rule 3.101-3 applicable to sex
offenders provides for certain exceptions to these procedures. Retaking in this context would not
appear to trigger the probable cause hearing requirements in Rule 5.108 unless revocation of
conditional release is contemplated by the sending state based on violations committed in the
receiving state while the transfer is pending.

3.2.2.6 Temporary Travel Permits

Offenders may be granted travel permits and temporary travel permits. The distinction
between the two types of permits is not exactly clear, except that a “temporary travel permit”
appears to contemplate shorter stays while a “travel permit” appears to contemplate longer out-
of-state stays. A temporary travel permit is defined as “written permission granted to an
offender, whose supervision has been designated a ‘victim sensitive’ matter, to travel outside the
supervising state for more than 24 hours but no more than 31 days.” See Rule 1.101. One
important consideration in issuing travel permits, and particularly temporary travel permits, is the
victim notification requirements of Rule 3.108(b).

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3.2.2.7 Reporting Instructions for Probationers Living in the Receiving State at the Time of
Sentencing

The Commission has addressed the issue of transferring an offender’s supervision within
the context of probation. Because offenders subject to probation may find themselves relocating
to a state prior to acceptance and receiving instructions, the Commission has adopted Rule 3.103.
This rule allows an offender who is living in the receiving state at the time of sentencing to
receive reporting instructions giving permission to the offender to reside in the receiving state
pending the reply for transfer of supervision. The rule only applies to offenders who are living in
the receiving state at the time of sentencing. The rule, therefore, would not apply to every
probationer. The sending state may grant a seven-day travel permit to an offender subject to
Rule 3.103 and the receiving state must issue reporting instructions no later than two days after
receiving the sending state’s request. See Rule 3.103. While such an offender inhabiting the
receiving state would satisfy the requirement for eligibility for reporting instructions under Rule
3.103, upon completion of the investigation of the transfer request, the receiving state may deny
the transfer based on failure to satisfy prerequisites of Rule 3.101, including not meeting the
definition of resident as defined by the compact rules. In the event of such a denial, the
provisions of Rule 3.103(e) (1) and (2) clearly require the offender to return to the sending state
or be retaken upon issuance of a warrant. See ICAOS Advisory Opinion 3-2007

3.2.2.8 Transfer of Supervision of Sex Offenders

The Commission recognizes that the transfer of sex offenders has become increasingly
complex and difficult due to individual state laws regarding sex offender registries and various
residency and employment restrictions. Rule 3.101-3 was adopted by the Commission to
address these challenges in promoting offender accountability, public safety, sharing
comprehensive information regarding these offenders and their offenses and effectively
regulating the process of transferring supervision of this high-risk population in a uniform
manner.

This rule specifically provides exceptions to the procedures for issuing reporting
instructions for sex offenders who meet criteria of Rule 3.103 as addressed in the previous
section. In cases of sex offenders transferring under the provisions of Rule 3.103, travel permits
are not allowed, meaning a sex offender must remain in the sending state until reporting
instructions are issued, and a receiving state has five (5) business days to review an offender’s
proposed residence and respond to such request for reporting instructions which may result in a
denial if the residency is invalid based on existing state law or policy.

In addition to providing these exclusions, this rule also prohibits a sex offender from any
travel outside of a sending state pending a request for transfer and requires a sending state to
provide additional information at the time of a request for transfer of supervision, if available, to
assist a receiving state in determining risk and appropriate supervision levels for sex offenders.
See Rule 3.101-3. To further implement special considerations and processes for sex offenders, a
definition was added to the administrative rules of the Commission.

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 ‘Sex offender’ has been defined by the Commission as “an adult placed under, or subject
to supervision as the result of the commission of a criminal offense and released to the
community under the jurisdiction of courts, paroling authorities, corrections, or other
criminal justice agencies and who is required to register as a sex offender either in the
sending or receiving state and who is required to request transfer of supervision under the
provisions of the Interstate Compact for Adult Offender Supervision.” See Rule 1.101.

PRACTICE NOTE: The definition of sex offender was adopted to provide guidance in the
administration of the rules regarding the movement of sex offenders. The Commission
recognizes that state laws may differ with regard to the criteria under which an offender is
classified as a sex offender. Therefore, the definition of sex offender provided in the compact
rules does not impinge on individual state definitions and only addresses registration
requirements of the sending and receiving states.

3.2.2.9 Entities Covered by the ICAOS

The requirements of the ICAOS extend to courts, probation authorities, paroling

authorities and other criminal justice agencies having responsibility for supervising offenders
and to those operating under contract with such entities. The requirement would also extent to
any entity acting on behalf of courts or corrections authorities, including private contractors.
Paull v. Park County, et al, 218 P.3d 1198 (Mont. S.Ct. 2009). To the extent that offenders both
by offense and the fact that they are subject to some form of supervision are subject to the
Compact, neither courts nor other supervising authorities may permit the offender to move
interstate without complying with the ICAOS and its rules. Even where courts act as the
“supervising authority,” the Compact may still apply if terms and conditions have been attached
to the sentence of the court. Supervision of offenders has two distinct criteria: (1) oversight
exercised by a supervising authority regardless of its status or designation; and (2) such oversight
is to monitor the offender’s compliance with regulations and conditions, other than monetary
conditions imposed on the offender at the time of release to the community or during the period
of supervision. See, ICAOS Advisory Opinion 8-2004 (Dec. 20, 2004). Assuming all other
conditions are met, as long as the offender is under supervision and required to comply with
specific conditions (with the exception of cases in which the only condition is a monetary
obligation) or other requirements to remain free, the transfer of the offender and his or her
supervision must be done in compliance with the ICAOS and its rules. Thus, considerations of
convenience and expediency are superseded by the goals of the ICAOS, which is first and
foremost to ensure community safety in both the sending state, receiving state and any state to
which the offender may subsequently relocate.

PRACTICE NOTE: If otherwise qualified under the Rules, an offender subject to court
supervision to which non-monetary conditions have been attached (beyond “go and do not re-
offend”) is an offender whose relocation to another state can only be achieved through the
provisions of the ICAOS and its rules.

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3.3 Other Considerations

3.3.1 Victims’ Rights

The ICAOS specifically creates certain rights for victims of crime and certain obligations
on courts and supervising authorities with respect to those rights. While the Compact statute
itself is vague and general on the rights, the Commission’s rules spell out specific rights and
obligations that must be respected. Under Rule 3.108, victims of crime have a right to notice of
an offender’s transfer. The notification requirement is triggered one business day after reporting
instructions have been issued by the receiving state. The notification requirement applies to
victims who reside in both the sending and receiving states, with each state having the obligation
to follow state law regarding notification of victims that might be located within the respective
states. Additionally, once an offender relocates, the receiving state is required by Rule 3.108(b)
to notify the sending state when the offender (1) commits a subsequent offense, (2) changes
addresses, (3) returns to the sending state where a victim may be located, (4) departs the
receiving state pursuant to an approved transfer of supervision to another receiving state, or (5)
has been issued a travel permit where supervision of the offender is considered victim-sensitive.

In addition to the right to various notifications, victims also have a right to appear and be
heard and to express their concerns with any proposal to transfer supervision to another state.
See Rule 3.108-1. The obligation to notify the victim of the right to be heard rests with victim
notification authority in the sending state. However, it would seem only logical that courts and
paroling authorities must apprise state victim notification authorities of a pending hearing for this
right to have any meaning.

Finally, depending on various factors, supervision may be classified as “victim-

sensitive,” which has the effect of providing additional safeguards and procedures that must be
followed. Victim sensitive supervision is defined as “a designation made by the sending state in
accordance with its definition of ‘crime victim’ under the statutes governing the rights of crime
victims in the sending state.” See Rule 1.101. Such a designation can affect the notification
requirements imposed on a receiving state under Rule 3.108 and temporary travel permits.

The responsibility for administering the rights given by the ICAOS to victims appears to
fall more on a state’s interstate compact office rather than judicial officers and courts. However,
courts should be aware of the various victim protections contained in the ICAOS and the
Commission’s rules to ensure full compliance by all parties involved with the matter.

3.3.2 Special Conditions

3.3.2.1 General Considerations

Although a state may be required to accept supervision given the eligibility status of an
offender, the receiving state may at the time of acceptance determine that special conditions are
needed. The receiving state can only impose those special conditions that it would have imposed
on similar in-state offenders. See Rule 4.103(a). A receiving state cannot impose special

67
conditions on out-of-state offenders as a means of avoiding its general obligations under the
Compact nor may a receiving state preemptively impose special conditions prior to acceptance as
a means of preventing a transfer. See ICAOS v. Tennessee Bd. of Probation and Parole, No. 04-
526 KSF (E.D. Ky. 2005). To do so, either in a particular case or as a matter of routine practice,
violates the ICAOS. A receiving state would not violate the ICAOS or its rule, for example, by
requiring an out-of-state offender to submit to registration and testing requirements (e.g., DNA
testing, sex offender registration, etc.) if mandated by the laws of the receiving state and imposed
on in-state offenders. See Rule 4.104(a). However, it cannot be emphasized enough that the
timing of imposing special conditions is critical to their validity. Under Rule 4.103 a special
condition can only be imposed by the receiving state after acceptance. Thus, prior practices,
such as those challenged in ICAOS v. Tennessee Bd. of Probation & Parole that imposed special
conditions during the investigative stage, are not valid under the ICAOS.

Rule 4.103 requires the receiving state to notify the sending state of its intent to impose a
special condition, the nature of the condition and the purpose of the condition. A receiving state
can place special conditions on an offender as a result of any allowable investigation once
transfer is accepted. An offender accepts any special conditions by accepting the transfer; that
is, by applying for transfer and being accepted by a receiving state the offender accepts the
special condition or risks forfeiting the ability to transfer supervision. See State v. Warner, 760
N.W.2d 209 (Iowa Ct. App. 2008) In effect, a receiving state can impose a special condition
after acceptance of the offender but prior to the offender’s actual physical relocation to the
receiving state. See Warner v. McVey, (2010 WL 3239385 (W.D. Pa., July 9, 2010). An
offender who has been accepted for transfer may refuse to comply with a receiving state’s
special conditions, which then operates to deprive the offender of the ability to physically
relocate supervision.

A sending state can also impose a special condition on an offender as a condition of

transferring supervision. However, in this context the receiving state must be given an
opportunity to inform the sending state of its inability to meet a special condition. This should be
of particular concern to judges. Although a court may as a condition of probation impose a
special condition and require that the condition be met in the receiving state, the receiving state
can refuse to enforce the special condition if the receiving state is unable to do so. See, ICAOS
Advisory Opinion 1-2008 The receiving state’s inability to enforce a special condition requires
the sending state to either: (1) withdraw the special condition and allow the offender to relocate
to the receiving state, or (2) withdraw the transfer request and continue to supervise the offender
in the sending state.

3.3.2.2 Authority to Impose Special Conditions

Courts and paroling authorities have wide latitude in imposing special conditions. The
standard of review on appeal challenging a special condition is the abuse of discretion standard.
See, United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003); Critelli v. Florida, 962
So.2d 341 (Fl. Dist. Ct. App. 2007); Williams v. State, 879 So. 2d 49 (Fla. Dist. Ct. App. 2004),
review denied, Williams v. State, 2005 Fla. LEXIS 144 (Fla., Jan. 14, 2005). State v. Baca, 90
P.3d 509 (N.M. Ct. App. 2004). However, when an offender fails to challenge at sentencing the
imposition of a special condition, the court of appeals will generally review the validity of the

68
special condition under a “plain error” standard. See, United States v. Brandenburg, No. 05-
1261 (6th Cir. Dec. 14, 2005).

Generally, a special condition imposed as a part of probation or parole must be

reasonably related to the underlying offense, promote offender rehabilitation, not unreasonably
impinge on recognized liberty interests, protect the community and not be so vague as to make
compliance difficult. If a special condition is statutorily authorized and/or does not violate any
constitutional protections, habeas corpus relief is unavailable to an offender contesting the
condition. See, People of the State of New York ex rel. William Stevenson v. Warden, 806
N.Y.S.2d 185 (N.Y. App. Div. 2005). Special conditions found to be appropriate include:

• Special condition imposed on an offender convicted of trading child pornography over

the internet that required him to provide the U.S. Probation Office advance notification
of any computers, automated services, or connected devices that he would use during the
term of supervision, and allowed the U.S. Probation office to randomly monitor the
inmate’s computers, connected devices, and/or storage media. See, United States v.
Balon, 384 F.3d 38 (2nd Cir. 2004).

• Special condition imposed on an offender convicted of weapons charges that included a

ban on operation of a motor vehicle and permitted warrantless searches was reasonable
given the underlying offense, the need to protect the public, and the goal of reducing the
likelihood of recidivism in view of an extensive criminal activity. United States v.
Kingsley, 241 F.3d 828 (6th Cir. 2001), cert. denied 534 U.S. 859 (2001).

• Lower court did not abuse its discretion by imposing on an offender convicted of theft of
goods in interstate commerce a special condition that he not work in the transportation of
goods. United States v. Vaughn, 1997 U.S. App. LEXIS 30397 (6th Cir. 1997).

• Special condition that required an offender convicted of operating a “chop shop” to

obtain a GED and prohibited him from engaging in any motor-vehicle-related
employment such as sales, service, mechanics, parts distribution or repair work was
reasonable. Sanchez v. State, 1999 Alas. App. LEXIS 52 (Alaska Ct App. 1999).

• Social contact notification imposed on offender with history of domestic violence.

United States v. Brandenburg, No. 05-1261 (6th Cir. Dec. 14, 2005).

• Supervised release which requires the defendant to remain current on restitution

payments from previous criminal convictions is not subject to the limitation that
restitution be related to the underlying offense. United States v. Mitchell, 429 F.3d
952 (10th Cir. 2005).

• Participation in sex offender treatment program and prohibition against contact with
minor children. United States v. Heidebur, 417 F.3d 1002 (8th Cir. 2005).

• Prohibiting offender who pled guilty to possessing child pornography from having
contact with his girlfriend and her minor children because the special condition of

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 supervised release served a permitted goal of protecting the children from harm and
reasonably allowed for contact upon prior approval. United States v. Roy, No. 05-2145
(1st Cir., March 1, 2006).

• A ban on Internet use was not an unconstitutional condition of offender convicted of

possessing child pornography because offender used his computer to send images;
threatened to pursue violent revenge against the prosecutor, which could have been
facilitated through Internet research; and blatantly violated the ban. People v. Harrisson,
134 Cal. App. 4th 637 (Cal. App. 3d Dist. 2005). See also, Harris v. State, 836 N.E.2d
267 (Ind. Ct. App. 2005) (parole board was within its power in requiring convicted child
molester, as a condition of parole, to refrain from using Internet except for work and not
to seek employment that would bring him into contact with children).

• Restitution scheme requiring offender convicted of mail fraud to set up a trust fund for
those whom he defrauded was in keeping with the purposes of probation because
aggrieved parties would be established in civil litigation. United States v. Barringer, 712
F.2d 60 (4th Cir. 1983)

• Mandatory statutory condition prohibiting offender convicted of sexual misconduct with

a minor from living with a child and which did not permit exceptions for offender's own
children was a valid probation condition, and did not violate due process. State v.
Strickland, 609 S.E.2d 253 (N.C. Ct. App. 2005).

3.3.2.3 Limitations on Special Conditions

Notwithstanding the authority of the sending and receiving state to impose special
conditions on an offender, several courts have determined that certain special conditions – such
as banishment from a geographical area – are not appropriate because they interfere with the
purpose of probation and parole, which is essentially rehabilitative in nature. For example, it is
an invalid condition to order an offender deported from the United States, as it is beyond the
jurisdiction of a court to order anyone deported without due process of the law. State v. Ahmed,
924 P.2d 679 (Mont. 1996), cert. denied, 519 U.S. 1082 (1997). Similarly, a majority of the
jurisdictions examining the issue of banishment from a geographical area have generally held
that such a condition cannot be broader than necessary to accomplish the goals of rehabilitation
and the protection of society. See, Jones v. State, 727 P.2d 6 (Alaska Ct. App. 1986) (vacating
condition prohibiting the defendant from being within a 45-block area since the condition is
“unnecessarily severe and restrictive,” unlike a condition which prohibits the frequenting of
certain types of establishments such as bars where prohibited activity will occur); State v.
Franklin, 604 N.W.2d 79 (Minn. 2000) (vacating condition excluding defendant from
Minneapolis, Minnesota); State v. Ferre, 734 P.2d 888 (Or. Ct. App. 1987) (determining
condition restricting the defendant from the county where the victim lived was broader than
necessary, but indicating condition limiting banishment to the town, instead of the county, where
the victim resides would be reasonable); Johnson v. State, 672 S.W.2d 621 (Tex. Ct. App. 1984)
(determining banishment from county where defendant resides is unreasonable).

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 Some jurisdictions have invalidated banishment conditions as being against public policy.
See, People v. Baum, 231 N.W. 95, 96 (Mich. 1930). See also, Rutherford v. Blankenship, 468
F. Supp. 1357, 1360 (W.D. Va. 1979) (power to banish, if it exists at all, is vested in the
legislature; where such methods of punishment are not authorized by statute, it is impliedly
prohibited by public policy); State v. Charlton, 846 P.2d 341, 344 (N.M. Ct. App. 1992)
(endorsing the public policy rationale stated in Baum and Rutherford). By contrast, a limited
number of jurisdictions have held that probation conditions restricting a defendant from
geographic areas encompassing a county or areas within a city or town can be reasonably related
to the goals of rehabilitation and the protection of society. See, Oyoghok v. Municipality of
Anchorage, 641 P.2d 1267 (Alaska Ct. App. 1982) (approving condition restricting offender
convicted of soliciting prostitution from being within a two block radius where street prostitution
occurs); People v. Brockelman, 933 P.2d 1315 (Colo. 1997) (affirming condition restricting
offender convicted of assault from the two towns where the victim lived and worked); State v.
Nolan, 759 A.2d 721 (Maine 2000) (trial court's special probation condition which prohibited
offender from entering towns of Sanford or Wells during five-year probationary term was
reasonable as applied and was not an abuse of discretion).

Courts have held other types of special conditions invalid because they bore no
reasonable relationship to offender rehabilitation, public safety or the underlying offense. For
example, a special condition requiring sex offender registration is invalid where the trial court
imposed the condition not because of the underlying offense (armed bank robbery), nor because
of the conduct that led to revocation, but because of an unrelated 1986 sex-offense conviction.
See, United States v. Scott, 270 F.3d 632 (8th Cir. 2001). The court found the special condition
had no reasonable relationship to the nature of the underlying offense and the record did not
show that the condition was reasonably necessary to deter the offender from repeating a sex
crime that had occurred 15 years earlier. Likewise, a special condition restricting computer use
was not reasonably related to present or prior offenses. See, United States v. Peterson, 248 F.3d
79 (2nd Cir. 2001). But see, United States v. Granger, 2004 U.S. App. LEXIS 25222 (4th Cir.
2004) (special condition of supervised release that defendant not possess or use any computer
which was or could be connected to a network would not have prevented defendant from seeking
employment where defendant's work history involved manual labor). Other special conditions
that have been held invalid include:

• Special condition that prohibited an offender from employment as an over-the-road truck

driver was vacated because it was not reasonably related to the offender’s crime and
imposed an overly harsh financial hardship. See, United States v. Cooper, 171 F.3d 582
(8th Cir. 1999).

• Special condition requiring an accountant convicted of tax fraud to notify potential clients
of the conviction was vacated as an unreasonable occupational restriction not related to
protecting the public. United States v. Doe, 79 F.3d 1309 (2nd Cir. 1996).

• Special condition that offender not use or possess alcoholic during probation invalid
because there was no relationship between offender’s weapons convictions and use of
alcohol. Biller v. State, 618 So.2d 734 (Fla. 1983).

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 • Special condition barring unsupervised contact with offender’s minor son was invalid
where the record did not enable the court to determine whether the condition
impermissibly impinged on a protected parent-child relationship. United States v. Myers,
426 F.3d 117 (2nd Cir. 2005); See also Goings v. Court Services and Offender
Supervision Agency of Dist. of Columbia, 786 F.Supp.2d 48 (D. D.C. 2011)

• Special condition imposed on offender convicted of child pornography that barred access
to computers and the internet was not narrowly tailored to serve the dual propose of
promoting offender rehabilitation and protecting the community. United States v. Crume,
422 F.3d 728 (8th Cir, 2005).

• Special condition barring use of alcohol and controlled substances held invalid as to the
alcohol prohibition as there was no reasonable relationship between a firearms offense
and alcohol consumption. People v. Arenivas, C043961 (Cal. App. 3d Dist., April 16,
2004).

• Special conditions imposed on a parolee with respect to employment restrictions were

overly broad and confusing, they were void for vagueness. Pazden v. N.J. State Parole
Bd., 864 A.2d 1136 (N.J. Super. Ct. App. Div. 2005).

Therefore, a special condition that is overly broad, not related to the goals of rehabilitation, and
not reasonably related to the protection of a victim or a community is generally unlawful. State
v. Muhammad, 43 P.3d 318 (Mont. 2002); Harrell v. State, 559 S.E.2d 155 (Ga. Ct. App. 2002).

In addition to finding some special conditions invalid, some courts have upheld the
special condition but found their execution invalid as the offender failed to receive sufficient
notice that certain conduct was proscribed. Thus, in State v. Boseman, 863 A.2d 704 (Conn. Ct.
App. 2005), the court held that revocation of an offender’s probation for violating a no-contact
order violated due process because the offender had no prior knowledge that being outside of his
girlfriend’s house to drop off a child to an intermediary was contemplated within no contact
condition. See also, Jackson v. State, 902 So.2d 193 (Fla. 5th Dist. Ct. App. 2005) (special
condition of probation of paying for drug treatment was not statutorily authorized and was struck
since it was not orally pronounced; conditions requiring drug treatment and submission to
warrantless searches were authorized). Likewise, a special condition requiring an offender to
reimburse attorney’s fees was not valid where the trial court failed to determine the offender’s
ability to pay. State v. Drew, No. 83563 (Ohio Ct. App. 8th Dist., July 8, 2004)

3.3.2.4 Sex Offender Registration and Exclusion Zones

Courts have generally upheld sex offender registration requirements for offenders whose
supervision is transferred under an interstate compact so long as such registration requirements
are not discriminatory. Thus, a receiving state may impose sex offender registration
requirements on transferees so long as the requirements are the same as imposed on in-state
offenders. In Doe v. McVey, 381 F. Supp. 2d 443 (E.D. Penn. 2005), the court struck down the
application of Pennsylvania’s “Megan’s Law” to an out-of-state offender. The court determined
that under the law as applied, an in-state offender was entitled to a civil hearing to determine

72
whether they were a “sexually violent predator” before registration was required. An out-of-state
offender seeking transfer of supervision was subject to the requirement of automatic registration
without the corresponding hearing available to an in-state offender. The court found that
although protecting citizens from sex offenses was, without doubt, a legitimate state interest,
subjecting one group of sex offenders to community notification without the same procedural
safeguards accorded to other sex offenders, based solely on where the predicate offense was
committed, was not rationally related to that goal and, thus, Pennsylvania's Megan's Law
violated the Equal Protection Clause.

The Commission has addressed the issue of establishing a sex offender’s risk levels and
notification obligations in the receiving state prior to transfer. In Advisory Opinion 5-2006 the
Commission advised that a receiving state cannot impose a pre-transfer condition of establishing
a sex offender’s risk level or community notification requirement if it does not apply the same
practice to in-state offenders. Applying the rule of ICAOS v. Tennessee. Bd. of Probation &
Parole, Case No. 04-526-KSF (E.D. Ky. 2005), the Commission noted that “[Rule 4.101] does
not permit a receiving state to impose the establishment of sex offender risk level or community
notification on offenders transferred under the Compact if it does not impose these same
requirements on offenders sentenced in the receiving state.” Advisory Opinion 5-2006. See
generally discussion at § 3.3.2.1.

Another area of concern for convicted sex offenders who may be transferred out-of-state
concerns so-called “exclusion zones.” Such zones, frequently created by statute, provide that sex
offenders may not reside within certain distances from schools, day care centers and the like.
Such zones are generally permissible. In the context of the interstate movement of offenders,
such zones will not be constitutionally void merely because they interfere with interstate
relocation. In Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) the court of appeals upheld an Iowa
law finding that (1) the U.S. Constitution did not prevent a state from regulating the residency of
sex offenders in order to protect the health and safety of the citizens of Iowa, (2) the residency
restriction was not unconstitutional on its face, and (3) the law in question did not amount to
unconstitutional ex post facto punishment of persons who committed offenses prior to July 1,
2002 because the sex offenders did not establish by the “clearest proof” that the punitive effect of
the law overrode the state legislature’s legitimate intent to enact a non-punitive, civil regulatory
measure that protected health and safety. However, an exclusion zone would not be permissible
if by operation or law or practice it was directed to out-of-state offenders and not applied equally
to in-state offenders. Cf., Doe v. Ward, 124 F. Supp. 2d 900, (W.D. Pa. 2000).

The impact of sex offender registration requirements and exclusion zones has not been
litigated within the context of the ICAOS and its rules. However, the requirement for sex
offender registration would appear a legitimate exercise of state power and fall within the
category of permissible conditions the transferee must meet so long as the burden applies equally
to in-state and out-of-state offenders. See Commonwealth of Kentucky v. McBride, 281 S.W.3d
799 (Ky. 2009). Additionally, although a law creating exclusion zones may burden interstate
transfers, such laws are not presumptively unconstitutional. Such laws may be challenged to the
extent that they are intended to discriminate against out-of-state offenders.

3.3.2.5 Pre-Acceptance Testing

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 An offender who is otherwise eligible for transfer under Rule 3.101 (mandatory transfer)
may not be required to submit to psychological testing by the receiving state as a condition of
acceptance of the transfer. Such “pre-acceptance” requirements imposed on otherwise eligible
offenders constitute additional requirements not authorized by the Compact or Commission
rules. See, ICAOS v. Tennessee Bd. of Probation and Parole, No. 04-526 KSF (E.D. Ky. 2005).
Imposing additional requirements on offenders not contemplated by the Compact or its rules
constitutes an impermissible and unilateral attempt to amend the Compact. Id. Although certain
testing requirements may be applied equally to in-state and out-of-state offenders, such
requirements cannot operate to foreclose offenders from transferring their supervision. See also,
Advisory Opinion 5-2006 (requiring sending state to establish sex offender risk level is
inappropriate where similar requirement is not imposed on offenders in receiving state).

3.3.2.6 Post-Acceptance Testing

Although receiving states may not impose pre-acceptance requirements on offenders that
would violated a state’s obligations under the Compact, the Compact and its rules would not
foreclose the receiving state from imposing post-acceptance testing requirements on an offender.
An offender otherwise eligible for transfer under Rule 3.101 must be accepted by the receiving
state without obstacle. Once accepted the receiving state may impose additional rationale
requirements on the offender provided that the additional requirements apply equally to in-state
and out-of-state offenders. An offender’s failure to meet the additional requirements, e.g. sex
offender registration or psychological testing, could be grounds for retaking. The same rule
would apply to discretionary transfers under Rule 3.101-2. See, Critelli v. Florida, 962 So.2d
341 (Fl. Dist. Ct. App. 2007) (discussion infra. Sec. 3.3.2.7; also Advisory Opinion 8-2006.

3.3.2.7 Summary

In sum, while both the sending state and receiving state possess authority to impose
special conditions as an element of probation, parole, or transfer under the ICAOS, such
conditions must (1) be reasonably related to the underlying offense, (2) aid in offender
rehabilitation, (3) not unduly interfere with fundamental liberty interests, including the right to
meaningful employment, and (4) be designed to promote community safety. The issue of
imposing special conditions pursuant to a transfer under ICAOS was considered in Critelli v.
Florida, 962 So.2d 341 (Fl. Dist. Ct. App. 2007) which upheld the revocation of a compact sex
offender’s probation for failure to comply with special conditions imposed by the receiving state
to “submit . . . to any program of psychological or physiological assessment and monitoring at
the direction of the probation officer or treatment provider. This includes the polygraph,
plethysmograph [“PPG’] and/or the Abel Screen to assist in treatment, planning and case
monitoring.” The Court held that the offender “should not be able to accept the benefits of his
transfer to Colorado, and then fail to carry out the required conditions.” Id. at 342-44.
Additionally, within the context of offender transfers pursuant to the ICAOS, any special
conditions imposed by a receiving state as a preemptive or de facto prohibition on transfers –
particularly when such transfers are mandated by Rule 3.101 – would violate the spirit and intent
of the ICAOS, which is fundamentally to allow for the expedient and effective transfer of

74
offender supervision to other states as a necessarily element of offender rehabilitation and
community safety.

3.3.3 Restitution

As ICAOS governs the movement of offenders and not the terms and conditions of
sentencing, the ICAOS and its rules are silent on the imposition of restitution. This, therefore, is
a matter governed exclusively by the laws of the sending state and the court imposing sentence.
However, Rule 4.108 clearly relieves the receiving state of the obligation to collect fines, fees,
costs or restitution. A sending state retains exclusive authority – and the obligation – to manage
the financial portion of an offender’s sentence. The only obligation imposed on the receiving
state is to inform the offender of a default and that the offender is out of compliance with the
terms and conditions of supervision upon notification from the sending state of the offender’s
failure to maintain payments. See, Rule 4.108(b). The actual collection and enforcement of the
financial obligation rests with the sending state. Failure to meet financial obligations is a breach
of the supervision agreement and can result in the sending state retaking the offender and
revoking probation or parole. See, e.g., Gelatt v. County of Broome, 811 F.Supp. 61 (N.D.N.Y.
1993) (decided on other grounds).

3.3.4 Fees

Rule 4.107 authorizes the collection of fees from offenders subject to the Compact.
Pursuant to Rule 4.107(a), the sending state may impose a transfer application fee on an
offender. Pursuant to Rule 4.107(b), the receiving state may impose a supervision fee on an
offender. Generally, such fees have been previously authorized by state statutory or state
administrative rule. See Holloway v. Cline, 154 P.3d 557 (Kan. App. 2007) (Imposition of a
$25.00 per month interstate compact supervision fee without providing a hearing before
assessing such fee does not violate an offender’s Constitutional rights to due process of law). It is
important to note that once an offender transfers supervision to a receiving state, the authority of
a sending state to collect any type of supervision fee ceases, to the extent such fees are truly
supervision fees. Thus, while a sending state may impose a supervision fee for that period of
time that the offender is actually in that state, the sending state may not continue to impose such
a fee on the offender under the guise of continuing to “supervise” the offender’s progress in the
receiving state. See e.g., ICAOS Advisory Opinion 2-2006.

A sending state is not prohibited from imposing other fees on offenders so long as those
fees are not related to supervision. For example, in ICAOS Advisory Opinion 14-2006, the
Commission advised that a sending state could impose an annual fee on sex offenders so long as
that fee had “no direct relationship to the supervision of such offenders.” See, ICAOS Advisory
Opinion 14-2006. In that particular case, state statute authorized an annual fee to be collected
from sex offenders for purposes of maintaining the state’s sex offender registry and victim
notification systems. The fee was an annual assessment as distinguished from an on-going fee
related to the actual supervision of an offender. However, the Commission also concluded that
while a sending state could impose such a fee the sending state alone was responsible for

75
collecting the fee and could not transfer collection responsibilities to the receiving state. Id. See
also Wem v. Department of Corrections, 2011 WL 2651858 (Mich. Ct. App. 2011)

3.3.5 Continuing Jurisdiction over Offender as Between the Sending & Receiving States

The transfer of an offender’s supervision pursuant to an interstate compact does not

deprive the sending state of jurisdiction over the offender, unless it is clear from the record that
the sending state intended to relinquish jurisdiction. See, e.g., Scott v. Virginia, 676 S.E.2d 343,
347 (Va. App. 2009); State v. Lemoine, 831 P.2d 1345 (Kan. Ct. App. 1992). While the
receiving state exercises jurisdiction over the offender for purposes of supervision, the sending
state retains jurisdiction over the offender for purposes of probation or parole revocation. See,
ICAOS Advisory Opinion 3-2008 Id. (sending state retains jurisdiction to revoke probation;
transfer of the duties of visitation and supervision over probationers does not explicitly mean a
complete transfer of jurisdiction). One court, interpreting the ICPP, precursor to the ICAOS,
held that:

Under the Interstate Parole and Probation Compact, * * * [a] receiving state
assumed the duties of visitation and supervision over defendant. Florida
Administrative Code Rule 23-4.001 provides an effective, businesslike method
for permitting persons under supervision to leave one state and take up residence
in another state with assurance that they will be supervised in the receiving state
and can be returned to the sending state in case of sufficient violation. One of the
functions of the receiving state is to properly report all violators to the original
sending state, with appropriate recommendations. (Citations omitted)

Kolovrat v. State, 574 So. 2d 294, 296 (Fla. Dist. Ct. App. 1991). The Compact does not give a
receiving state the authority to revoke the probation or parole imposed by authorities in a sending
state. Scott v. Virginia supra. at 347; See also Peppers v. State, 696 So. 2d 444 (Fla. Dist. Ct.
App. 1997). A receiving state may, independent of the sending state, initiate criminal
proceedings against offenders who commit crimes while in the state. See, e.g., Rule 5.101-1. A
receiving state may not, however, as part of the offender’s conviction for such crimes revoke the
probation or parole imposed on the offender in the sending state or decide to provide no
supervision once an offender is transferred in accordance with the ICAOS rules, See ICAOS
Advisory Opinion 1-2007. Moreover, whether a sending state continues to exercise jurisdiction
over an offender or has relinquished or forfeited that jurisdiction is generally a matter that can
only be determined by the sending state. See, Crady v. Cranfill, 371 S.W.2d 640 (Ky. Ct. App.
1963) (under ICPP a sending state retains authority over offender through the retaking
provisions; it is inappropriate for the courts of a receiving state to arrogate to themselves the
determination of whether a sending state has forfeited its right to retake offenders under parole
from that state).

3.3.6 Implications, Health Insurance Portability and Accountability Act of 1996 (HIPAA)

The Health Insurance Portability and Accountability Act of 1996 and rules promulgated
pursuant thereto are intended to protect certain health care information from disclosure to
authorized persons or entities. Generally, prior to disclosure of health care information, the

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holder of that information is required to get a release from the patient. HIPAA covers the
disclosure of both physical and mental health care information. Thus, persons subject to transfer
under ICAOS may have a protected privacy interest in certain health care information.

There is a law enforcement exception to the requirement that a written release be obtained
from an offender prior to disclosure of protected health care information. See 45 C.F.R.
164.512(f)(1). Protected health care information may also be released pursuant to a court order.
See, 45 C.F.R. 164.512(f)(1)(ii). However, release of protected health care information pursuant
to court order is limited to the explicit terms of the orders. See, 45 C.F.R. 164.512(e)(1)(i).
Additionally, providers may release protected health care information when such release is
consistent with law and applicable ethical standards, including disclosure to law enforcement
authorities when necessary to protect the public or an individual from serious imminent threat or
to aid in the apprehension of an individual who has escaped from lawful custody. See, 45 C.F.R.
164.512(j)(1)(i) & (j)(1)(ii)(B). See also, 45 C.F.R. 164.512(k)(5). It is, however, important to
emphasize that the release of protected health care information must be genuinely for law
enforcement purposes. Thus, it should not be presumed that offenders enjoy no rights of privacy
in their health care information. To the extent that the disclosure of protected information is a
legitimately necessary element in the supervision of an offender, such a release of information
would not violate HIPAA. To the extent that the disclosure of such information is more general
in nature and not directly tied to a legitimately necessary element of supervision, the release of
such information may violate HIPAA. Therefore, in deciding whether to release protected health
care information to the authorities of another state it is important to determine whether the
release of such information is critical to the offender’s supervision or maintaining public safety.
An unlawful disclosure of protected information carries with it criminal and civil penalties,
including fines up to $250,000 and 10 years imprisonment. For a list of disclosures permitted by
HIPAA, see, Advisory Opinion August 25, 2005.

Although HIPAA may arise in the context of an interstate transfer, several courts have
concluded that HIPAA does not provide either an explicit or implicit private right of action. One
court having addressed HIPAA within the context of transferring medical records in the ICAOS
context concluded that “I need not determine whether petitioner’s allegations state a possible
claim under this statute because the text of the statute does not provide a private right of action
and two federal courts have concluded after thorough and persuasive analyses that no implied
right of action exists.” O’Neal v. Coleman, 2006 U.S. Dist. LEXIS 40702 (W.D. Wis. June 16,
2006) citing Johnson v. Quander, 370 F. Supp. 2d 79, 99-100 (D.D.C. 2005); Univ. of Colorado
Hospital v. Denver Publishing Co., 340 F. Supp. 2d 1142, 1144-46 (D. Colo. 2004).

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 CHAPTER 4

RETURNING OFFENDERS TO THE SENDING STATE

4.1 Status of Offenders Subject to ICAOS

One of the principal purposes for the ICAOS is to provide for the effective transfer of
offenders to other states and to also obtain the return of an offender to the sending state through
means other than formal extradition. To this end, the status of an offender as a convicted person
substantially affects the process to which they are entitled under the ICAOS and constitutional
principles of due process. Although the ICAOS and its administrative rules are relatively new
and, therefore, have not been the subject of robust judicial construction, general principles
governing the status of probationers and parolees under the federal Constitution, prior compacts,
court decisions and state law are instructive and most likely controlling on offenders subject to
the ICAOS.

The U.S. Supreme Court has held that the granting of probation or parole is a privilege,
not a right guaranteed by the Constitution. It comes as an “act of grace” to one convicted of a
crime and may be coupled with conditions that a state deems appropriate under the
circumstances of a given case. Escoe v. Zerbst, 295 U.S. 490 (1935); Burns v. United States,
287 U.S. 216 (1932). See also, United States ex rel. Harris v. Ragen, 177 F.2d 303 (7th Cir.
1949). Many state courts have similarly found that probation or parole is a “revocable
privilege,” an act of discretion. See, Wray v. State, 472 So. 2d 1119 (Ala. 1985); People v.
Reyes, 968 P.2d 445 (Calif. 1998); People v. Ickler, 877 P.2d 863 (Colo. 1994); Carradine v.
United States, 420 A.2d 1385 (D.C. 1980); Haiflich v. State, 285 So. 2d 57 (Fla. Ct. App. 1973);
State v. Edelblute, 424 P.2d 739 (Idaho 1967); People v. Johns, 795 N.E.2d 433 (Ill. Ct. App.
2003); Johnson v. State, 659 N.E.2d 194 (Ind. Ct. App. 1995); State v. Billings, 39 P.3d 682
(Kan. Ct. App. 2002); State v. Malone, 403 So. 2d 1234 (La. 1981); Wink v. State, 563 A.2d 414
(Md. 1989); People v. Moon, 337 N.W.2d 293 (Mich. Ct. App.1983); Smith v. State, 580 So.2d
1221 (Miss. 1991); State v. Brantley, 353 S.W.2d 793 (Mo. 1962); State v. Mendoza, 579 P.2d
1255 (N.M. 1978). Probation or parole is a statutory privilege that is controlled by the legislature
and rests within the sound discretion of a sentencing court or paroling authority. See, e.g. People
v. Main, 152 Cal. App. 3d 686 (Cal. Ct. App. 1984). An offender has no constitutional right to
conditional release or early release. See, Greenholtz v. Inmates of Neb. Penal & Correctional
Complex, 442 U.S. 1, 7 (1979). Because there is no constitutional right, federal courts
“recognize due process rights in an inmate only where the state has created a ‘legitimate claim of
entitlement’ to some aspect of parole.” Vann v. Angelone, 73 F.3d 519, 522 (4th Cir. 1996). See
also Furtick v. South Carolina Dept. of Probation, Parole & Pardon Services, 576 S.E.2d 146,
149 (2002). A state will only be held to “create” a constitutional liberty interest if its laws
affirmatively create an interest that, if taken, would impose “atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995).

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 Courts have held that because probation, parole or conditional pardon is not something an
offender can demand but rather extends no further than the conditions imposed, revocation of the
privilege generally does not deprive an offender of any legal right. Rather, revocation merely
returns the offender to the same status enjoyed before probation, parole or conditional pardon
was granted. See, Woodward v. Murdock, 24 N.E. 1047 (Ind. 1890); Commonwealth ex rel.
Meredith v. Hall, 126 S.W.2d 1056 (Ky. 1939); Guy v. Utecht, 12 NW2d 753 (Minn. 1943).
Other courts have held that probation, parole or conditional pardon is in the nature of a contract
between the offender and the state and which the offender is free to accept with conditions or to
reject and serve the sentence. Having elected to accept probation, parole or conditional pardon,
the offender is bound by its terms. See, Gulley v. Apple, 210 S.W.2d 514 (Ark 1948); Ex parte
Tenner, 128 P.2d 338 (Calif. 1942); State ex rel. Rowe v. Connors, 61 S.W.2d 471 (Tenn. 1933);
Ex parte Calloway, 238 S.W.2d 765 (Tex. 1951); Re Paquette, 27 A.2d 129 (Vt. 1942); Pierce v.
Smith, 195 P.2d 112 (Wash. 1948), cert denied 335 U.S. 834. Still other courts have held that
probation, parole or conditional pardon is an act of grace controlled by the terms and conditions
placed on an offender as if under contract. See, State ex rel. Bush v. Whittier, 32 N.W.2d 856
(Minn. 1948). Regardless of the underlying theory – grace, contract, or both – the general
proposition is that probation is a privilege such that if an offender refuses to abide by the
conditions a state can deny or revoke it. People v. Eiland, 576 N.E.2d 1185 (Ill. Ct. App. 1991).
The rights of a person who is actually or constructively in the custody of state corrections
officials due to the conviction of a criminal offense differs markedly from citizens in general, or
for that matter citizens under suspicion of criminal conduct. People v. Gordon, 672 N.Y.S.2d
631 (N.Y. Sup. Ct. 1998). It should be noted however that although an offender does not have a
right to supervised release, as discussed below, when granted certain liberty interests attach such
that an offender is entitled to some minimum due process prior to revocation. See, Morrissey v.
Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973).

It is not a violation of Fourteenth Amendment equal protection when the procedures

prescribed and followed under a uniform interstate compact are applied. See, People ex rel.
Rankin v Ruthazer, 107 N.E.2d 458 (N.Y. 1952). Similarly, in Ex parte Tenner, 128 P2d 338
(Cal. 1942), the court upheld the validity of a uniform statute for out-of-state parolee supervision
(ICPP) finding that since the statute applied uniformly to all parolees from states that were
members of the Compact, the statute did deprive parolees of the equal protection of the laws. In
People v Mikula,192 N.E. 546 (Ill. 1934), the court held that no violation of the constitution
occurred where an out-of-state offender might be eligible for transfer of parole to another state
while an in-state offender was not able to obtain such a parole. The court found that it was
within the authority of the legislature to make reasonable classification of prisoners in order to
effectuate the purposes of the statute. Pointing out that if the convict was a nonresident and the
law would not permit him to be paroled outside of the state, those reasons would become
impotent as to him. The court concluded that there was no deprivation of advantage to anyone
because of the statutory distinction between resident and nonresident convicts. Cf., Williams v.
Wisconsin, 336 F.3d 576 (7th Cir. 2003) (while offenders have a right to marry, state can impose
reasonable travel restrictions which have the effect of incidental interference with the right to
marry; such restrictions do not give rise to a constitutional claim if there is justification for the
interference).

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 Similarly, even warrantless searches of parolees have been held to be permissible,
particularly where such searches have been agreed to as a condition of parole. See Samson v.
California, 547 U.S. 843 (2006) [“Under our general Fourth Amendment approach we examine
the totality of the circumstances to determine whether a search is reasonable within the meaning
of the Fourth Amendment. . . Id. At 848 (citations omitted)]. In Samson, the Court found that, on
the continuum of state-imposed punishments, “parolees have fewer expectations of privacy than
probationers, because parole is more akin to imprisonment than probation is to imprisonment.”
Id. At 850. See also United States v. Stewart, 213 Fed. Appx. 898, 899 (11th Cir. 2007). Relying
on Samson and Stewart at least one federal court has upheld a warrantless search of a parolee
whose supervision was transferred from Georgia to Alabama under the provisions of ICAOS
noting that under the terms of his Georgia parole agreement the offender “consented to search by
his parole officer or any other parole officer or ‘any other parole officer,’ with no limitation as to
the state of residence of the parole officer conducting the search. . . The search provision to
which defendant agreed as a condition of his Georgia parole was not vitiated by the transfer of
his supervision to Alabama.” See U.S. v. Brown, (2009 WL 112574 (M.D. Ala., January 15,
2009.
A person’s status as an out-of-state offender does not mean that such person possesses no
constitutional rights. Offenders may have some minimum rights of due process in limited
circumstances. For example, in Browning v Michigan Dept. of Corrections, 188 N.W.2d 552
(Mich. 1971), the court held that equal protection rights would be violated if a “dead time”
statute were construed so that a person paroled out-of-state was not given credit on his original
sentence for time served after his parole and while in prison in other states based on subsequent
convictions in those other states. In that case, a parolee, as a result of the imprisonment in
Georgia and in Illinois, had accumulated “dead time” totaling nearly 8 years, which was not
credited to his Michigan sentence. Noting that the legislature intended that a parole violator
should serve sentences concurrently, the court held that in the event of a parole violation, the
time from the date of the parolee’s delinquency to the date of his arrest should not be counted as
any part of the time to be served. However, the court also concluded that a prisoner who is
paroled out of state and who subsequently violates parole by committing an offense in another
state, does not have his dead time end until declared available by the other state for return to
Michigan. The court declared that if construed to operate in this manner, the “dead time” statute
not only violated the requirement that consecutive sentences be based upon express statutory
provisions, but also invidiously sub-classified an out-of-state parolee solely upon the basis of
geography and constituted a violation of equal protection guaranties.

4.2 Waiver of Formal Extradition Proceedings

4.2.1 Waiver of Extradition under the ICAOS

Principal among the provisions of the ICAOS is the member states’ waiver of formal
extradition requirements for return of offenders who violate the terms and condition of their
supervision. The ICAOS specifically provides that:

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 The compacting states recognize that there is no “right” of any offender to live in
another state and that duly accredited officers of a sending state may at all times
enter a receiving state and there apprehend and retake any offender under
supervision subject to the provisions of this Compact and By-laws and Rules
promulgated hereunder.

See Purposes, Art. I. Additionally, pursuant to Rule 3.109, an offender is required to waive
extradition as a condition of transferring supervision. That rule provides:

(a) An offender applying for interstate supervision shall execute, at the time of
application for transfer, a waiver of extradition from any state to which the
offender may abscond while under supervision in the receiving state.

(b) States that are parties to this Compact waive all legal requirements to
extradition of offenders who are fugitives from justice.

See, Rule 3.109(a) & (b). The execution of an extradition waiver at the time of transfer is valid.
See Evans v. Thurmer, 278 Fed. Appx. 679, 2008 WL 2149840 (7th Cir. 2008), O’Neal v.
Coleman, 2006 U.S. Dist. LEXIS 40702 (W.D. Wis. June 16, 2006); see also Johnson v. State,
957 N.E.2d 660 (Ind. App. 2011). It is important to note that, subject to certain requirements, a
sending state has authority at all times to enter a receiving state and retake an offender. See
discussion, infra, at §4.4.2 concerning hearing requirements. The waiver of extradition outlined
in Rule 3.109 applies to any member state where the offender might be located. Under Rule
3.109, authorities are not limited in their pursuit of fugitives or in returning a fugitive to the
sending state. However, authorities may be required to present evidence that the fugitive is the
person being sought and that they are acting with lawful authority, e.g., they are lawful agent of
the state enforcing a properly issued warrant. See, Ogden v. Klundt, 550 P.2d 36, 39 (Wash. Ct.
App. 1976).

Although neither Article I of the ICAOS or Rule 3.109 have been the subject of judicial
interpretation, challenges to the constitutionality of similar waiver provisions contained in past
Compacts have not been successful. Courts have held that an interstate compact authorized by
Congress relating to interstate apprehension and retaking of offenders without formalities and
without compliance with extradition laws does not violate due process of law. See, Gulley v.
Apple, 210 S.W.2d 514 (Ark. 1948); Woods v. State, 87 So.2d 633 (Ala. 1956); Ex parte Tenner,
128 P.2d 338 (Cal. 1942); Louisiana v. Aronson, 252 A.2d 733 (N.J. Super. Ct. App. Div. 1969);
People ex rel. Rankin v. Ruthazer, 107 N.E.2d 458 (N.Y.1952); Pierce v. Smith, 195 P.2d 112
(Wash. 1948), cert. denied, 335 U.S. 834. Extradition is not available even in the absence of a
written waiver by the offender as the interstate compact operates to waive any extradition rights.
See, People v. Bynul, 524 N.Y.S.2d 321 (N.Y. Crim. Ct.1987). Habeas corpus is generally
unavailable to offenders being held pending return to the sending state under an interstate
compact. See, Stone v. Robinson, 69 So. 2d 206 (Miss. 1954) (prisoner not in Mississippi as a
matter of right but as a matter of grace under the clemency extended by the Louisiana parole
board; prisoner subject to being retaken on further action by the parole board); State ex rel.
Niederer v. Cady, 240 N.W.2d 626 (Wis. 1974) (constitutional rights of offender whose

81
supervision was transferred under compact not violated by denial of an extradition hearing as
offender was not an absconder but was in another state by permission and therefore subject to the
retaking provisions of the compact); Cook v. Kern, 330 F.2d 1003 (5th Cir. 1964) (whatever
benefits offender enjoyed under the Texas Extradition Statute, he has not been deprived of a
federally protected right and therefore a writ of habeas corpus was properly denied; even
assuming that a constitutional right was involved, the parole agreement constitutes a sufficient
waiver.) However, a person seeking relief from incarceration imposed as the result of allegedly
invalid proceedings under the ICPP may utilize the remedy of habeas corpus to challenge that
incarceration. People v. Velarde, 739 P.2d 845 (Colo. 1987). Other jurisdictions have also
recognized the availability of this remedy, albeit for limited issues, to offenders seeking to
challenge the nature and result of proceedings conducted pursuant to provisions equivalent to
those of the ICPP. See, e.g., United States ex rel. Simmons v. Lohman, 228 F.2d 824 (7th Cir.
1955); Petition of Mathews, 247 N.E.2d 791 (Ohio Ct. App. 1969); Ex Parte Cantrell, 362
S.W.2d 115 (Tex. 1962). The availability of habeas corpus to a detained offender may also be
affected by recent changes to the ICAOS rules imposing time limits on probable cause
determinations. See, Rule 5.108€ & (f).

4.2.2 Uniform Extradition Act Considerations

An offender who absconds from a receiving state is deemed a fugitive from justice. The
procedures for returning a fugitive to a demanding state can be affected by the Uniform Criminal
Extradition and Rendition Act (UCERA). Under that act, a fugitive may waive all procedural
rights incidental to the extradition, for example the issuance of a Governor’s warrant, and
consent to return to the state demanding the fugitive. To be valid, the waiver must be in writing,
in the presence of a judge, and after the judge has informed the fugitive of his rights under the
statute. Nothing in the UCERA prevents a person from voluntarily returning to a state. Several
courts have recognized that an interstate compact governing supervision of out-of-state offenders
provides an alternative procedure by which a person can be returned to the demanding state
without complying with the formalities of the UCERA. See, In re Klock, 133 Cal App 3d 726
(Cal. Ct. App. 1982); People v. Bynul, 524 N.Y.S.2d 321 (N.Y. Crim. Ct. 1987). See also Todd
v. Florida Parole and Probation Commission, 410 So.2d 584 (Fla. 1st DCA 1982) (“[W]hen a
person is paroled to another state pursuant to an interstate compact, all requirements to obtain
extradition are waived.”) An interstate compact has been held to displace the UCERA as to
certain offenders and requires only minimal formalities as to the return of those offenders. Id.
Furthermore, the offender’s agreement to waive extradition as a condition of relocating waives
the need for formal extradition proceedings upon demand by the sending state that an offender be
returned. Cf., Wymore v. Green, 245 Fed. Appx. 780, 2007 WL 2340795 (10th Cir. 2007)
(plaintiff's waiver of extradition renders any formal request or permission from the requesting
and sending state governors unnecessary.)

PRACTICE NOTE: The purpose of the ICAOS is to benefit an offender by permitting them to
reside and be supervised in a state where the offender has familial and community ties. In
consideration of this privilege, an offender is bound by the terms of the ICAOS, including Rule
3.109 regarding waiver of extradition in certain circumstances. Therefore, an offender subject to
ICAOS is subject to the “alternative procedures” provided in the Compact and its rules, not the
provisions of the UCERA.

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4.3 Violation Reports

A receiving state is obligated to report to authorities in the sending state within 30

calendar days of the discovery of a significant violation of the terms and conditions of
supervision. A “significant violation” is defined in Rule 1.101 as a violation that, if it had
occurred in the receiving state, would constitute grounds for revocation of supervision. The
definition of “significant violation” has not been judicially construed. However, the language of
the rule indicates that “significant violation” is determined under the facts and laws of the
receiving state. Therefore, it is conceivable that violations and retaking will differ from state-to-
state. Moreover, a sending state may be required to retake an offender for violations that, had
they occurred in the sending state, may not have constituted grounds for revocation.

4.4 Retaking

As previously noted, Article I of ICAOS authorizes officers of a sending state to enter a

receiving state or a state to which an offender has absconded for purposes of retaking an
offender. With limited exceptions, the decision to retake an offender rests solely in the
discretion of the sending state. See Rule 5.101(a). However, if an offender has been charged with
a subsequent offense in the receiving state, the sending state may not retake the offender without
prior consent from authorities in the receiving state, until the criminal charges are dismissed,
sentence has been satisfied or the offender released on supervision. See Rule 5.101-1, also Reece
v. Owens, 2011 WL 3239958 (E.D. TX, 2011) (State of Arkansas could not retake an offender
from Texas after being charged with a subsequent criminal offense in Texas unless Texas
consents under ICAOS Rule 5.101)

The discretion of the sending state to retake an offender is limited by several factors.
First, a sending state must retake an offender upon request of the receiving state or subsequent
receiving state and conviction for a felony offense or violent crime. See Rule 1.101 and Rule
5.102. The sending state can retake only after charges have been dismissed, sentence has been
satisfied, or the offender has been released to supervision for the subsequent offense, unless the
sending and receiving states mutually agree to the retaking. Id. Second, a sending state is
required to retake an offender upon request of the receiving state and a showing that the offender
has “committed three or more significant violations arising from separate incidents” that
establish a pattern of non-compliance with the terms of supervision. See Rule 1.101 and Rule
5.103. Furthermore, Rule 5.103 (a) does not provide a limitation to its applicability based on the
time frame within which the significant violations have occurred, and by its terms the rule can
only be invoked by the receiving state. However, the significant violations that trigger the
applicability of this rule must all have occurred in the receiving state. See ICAOS Advisory
Opinion 4-2007. .A “significant violation” is defined as a violation of the terms and conditions
of supervision such that if it had occurred in the receiving state it would result in a request for
revocation of supervision. See Rule 1.101. It is important to note that the gravity of the
violation is measured by the standards of the receiving state. Therefore, a sending state is
required to retake an offender even if the violation would not have resulted in revocation under
the standards of the sending state. So long as the violation meets the revocation standards of the

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receiving state, the sending state is obligated to retake. This may have significant implications
for the need to conduct a retaking hearing in the receiving state. Finally, it is sufficient that at
least one of the significant violations of supervision occurred after adoption of the rules. Under
Rule 5.103 “a sending state is required to retake or order the return of the offender * * * upon the
request of a receiving state which shows three or more significant violations * * * as long as at
least one ‘significant violation’ has occurred subsequent to the adoption of the rule.” See ICAOS
Advisory Opinion 10-2006.

PRACTICE NOTE: The gravity of a violation of the terms and conditions of supervision is
measured by the standards of the receiving state. A sending state may be required to retake an
offender even if the violation would not have been given the same weight by that state.

Under the Compact, officers of the sending state are permitted to enter the receiving state
or any other state to which the offender has absconded in order to retake the offender. As the
Compact and Rule 3.109 waive formal extradition proceedings, officers need only establish their
authority and the identity of the offender. See Rule 5.107(a) & (b). Due process requirements,
such as the requirement for a probable cause hearing, may also apply if the violations are to form
the basis for revocation proceedings in the sending state. See Rule 5.108(a). Once the authority
of sending state’s officers is established and due process requirement met, authorities in a
receiving state may not prevent, interfere with or otherwise hinder the transportation of the
offender back to the sending state. See Rule 5.109. Interference by court officials would
constitute a violation of the ICAOS and its Rules.

4.4.1 Offenders Convicted of a Violent Crime

Rule 5.102 as described in the previous section, requires at the request of a receiving
state, that the sending state retake an offender convicted of a violent crime. A violent crime is
qualified by one of the following four criteria: (1) any crime involving the unlawful exertion of
physical force with the intent to cause injury or physical harm to a person; (2) or an offense in
which a person has incurred direct or threatened physical or psychological harm as defined by
the criminal code of the state in which the crime occurred; (3) or the use of a deadly weapon in
the commission of a crime; (4) or any sex offense requiring registration.

4.4.2 Arrest and Detention of Offenders in the Receiving State

The relationship between officials in a sending state and officials in a receiving state has
been defined by courts as an agency relationship. Courts recognize that in supervising out-of-
state offenders the receiving state is acting on behalf of and as an agent of the sending state. See,
State v. Hill, 334 N.W.2d 746 (Iowa 1983) (trial court committed error in admitting out-of-state
offender to bail as status of the offender was not controlled by the domestic law of Iowa but
rather by the Interstate Compact for Probation and Parole and the determinations of sending state
authorities); State ex rel. Ohio Adult Parole Authority v. Coniglio, 610 N.E.2d 1196, 1198 (Ohio
Ct. App. 1993) (“For purposes of determining appellee’s status in the present case, we believe
that the Ohio authorities should be considered as agents of Pennsylvania, the sending state. As
such, the Ohio authorities are bound by the decision of Pennsylvania with respect to whether the
apprehended probationer should be considered for release on bond and the courts of Ohio should

84
recognize that fact.”); also New York v. Orsino, 27 Misc.3d 1218(A), 2010 WL 1797026
(N.Y.Sup., April 26, 2010)(“In several cases both appellate and lower courts have held that the
power of the receiving state, in this case Connecticut, to conduct a hearing is delegated to it
pursuant to the Compact for Adult Supervision.”); People ex rel Ortiz v. Johnson, 122 Misc.2d
816, Sup. Ct.1984).

In supervising out-of-state offenders, authorities in a receiving state are not acting

exclusively as authorities of that state under the domestic law of that state, but are also acting as
agents of the sending state and to a certain degree are controlled by the lawful decisions of
sending state officials. “Under the terms of the compact, the receiving state “will assume the
duties of visitation and supervision over probationers or parolees of any sending state. Transfer
of supervision under this statute is not a transfer of jurisdiction. Although the day-to-day
monitoring of probationers becomes the duty of the receiving state, the sending state does not
abdicate its responsibility.” See Johnson v. State, 957 N.E.2d 660 (Ind. App. 2011); Keeney v.
Caruthers, 861 N.E.2d 25 (Ind. App. 2007); Scott v. Virginia, 676 S.E.2d 343, 348 (Va. App.
2009).

The arrest of an out-of-state offender may occur under one of three broad categories.
First, an out-of-state offender is clearly subject to arrest and detention for committing a new
offense in the receiving state. Rules 5.101 and 5.102 recognize that an offender may be held in a
receiving state for the commission of crime and is not subject to retaking unless the receiving
state consents, the term of incarceration on the new crime was completed, or the offender has
been placed on probation. The authority to actually incarcerate an offender necessarily carries
with it the implied power that an offender is subject to arrest for committing an offense.

Second, an out-of-state offender is subject to arrest and detention upon request of the
sending state based on its intent to retake the offender. Such a retaking can occur based on a
demand by the receiving state or because the sending state intends to revoke probation. Under
this circumstance and notification to retake an offender, the sending state must issue a warrant,
and file a detainer with the holding facility when the offender is in custody. . Courts have
routinely recognized the right of a receiving state to arrest and detain an offender based on such a
request from a sending state. See e.g., State ex rel. Ohio Adult Parole Authority v. Coniglio, 610
N.E.2d 1196 (Ohio Ct. App. 1993) (offender cannot be admitted to bail pending retaking); Crady
v. Cranfill, 371 S.W.2d 640 (Ky. Ct. App. 1963) (detention of offenders proper as only courts in
the sending state can determine the status of their jurisdiction over the offender).

PRACTICE NOTE: An offender arrested and detained for violating the terms and conditions of
supervision may have certain due process rights. If the sending state intends to use offender’s
violations in the receiving state as the basis for possibly revoking the offender’s conditioned
release, both U.S. Supreme Court decisions and rules of the Commission require that the sending
and receiving states comply with various hearing requirements. See discussion, beginning at
Section 4.4.3

The third circumstance under which officials in a receiving state may arrest an out-of-
state offender is for violations that physically occur in the receiving state. This third
circumstance may prove the most confusing and difficult because the offender may or may not

85
have been charged with committing a new offense in the receiving state and the sending state
may or may not initiate retaking proceedings. Nevertheless, courts have recognized that out-of-
state offenders are subject to arrest for violations that occur in the receiving state. See, e.g.,
Kaczmarek v. Longsworth, 107 F.3d 870 (Table), 1997 WL 76190 (6th Cir. 1997) (out-of-state
probationer could not show that he was entitled to be released from detention under the standards
set by Ohio for its own probationers and parolees) (Emphasis added); in accord Perry v.
Pennsylvania, 2008 WL 2543119 (W.D. Pa. 2008)

The ICAOS rules clarify the arrest powers of state officials supervising an out-of-state
offender. Rule 4.109-1 provides that, “An offender in violation of the terms and conditions of
supervision may be taken into custody or continued in custody in the receiving state.” This rule
acts as statutory authorization in the receiving state notwithstanding domestic laws to the
contrary. See, Art. V (Commission to adopt rules that “shall have the effect of statutory law” and
are binding on the states). Rule 4.109-1 effectively adopts and codifies the Commission’s prior
stance on arrest powers as set out in ICAOS Advisory Opinion 2-2005. See also Perry v.
Pennsylvania, supra. (giving ‘deference’ to this advisory opinion and holding that the term
“supervision” as defined by ICAOS “as a matter of statutory construction . . . included the ability
to arrest and to detain Plaintiff.”)

PRACTICE NOTE: Notwithstanding the adoption of Rule 4.109-1, state officials should
determine whether the laws of their state authorize the arrest of a compact offender not already in
custody including the need for a warrant. Rule 4.109-1 extends to receiving state officials the
right to arrest out-of-state offenders to the extent permitted by the laws of the receiving state. See
Advisory Opinion 17-2006.

In addition to specific rule authorization, public policy justifies the arrest of an out-of-
state offender notwithstanding the domestic law of the receiving state. The purpose of the
ICAOS is not to regulate the movement of adult offenders simply for the sake of regulation.
Rather, regulating the movement of adult offenders fulfills the critical purposes of promoting
public safety and protecting the rights of crime victims. See INTERSTATE COMPACT FOR ADULT
OFFENDER SUPERVISION, ART. I. All activities of the Commission and the member states are
directed at promoting these two overriding purposes. Member states, their courts and criminal
justice agencies are required to take all necessary action to “effectuate the Compact’s purposes
and intent.” See INTERSTATE COMPACT FOR ADULT OFFENDER SUPERVISION, art. IX, § A.

4.4.3 Post-Transfer Hearing Requirements

4.4.3.1 General Considerations

Offenders, including those subject to supervision under the ICAOS, have limited rights.
Conditional release is a privilege not guaranteed by the Constitution; it is an act of grace, a
matter of pure discretion on the part of sentencing or corrections authorities. See Escoe v.
Zerbst, 295 U.S. 490 (1935); Burns v. United States, 287 U.S. 216 (1932); United States ex rel.
Harris v. Ragen, 177 F.2d 303 (7th Cir. 1949); Wray v. State, 472 So. 2d 1119 (Ala. 1985);
People v. Reyes, 968 P.2d 445 (Calif. 1998); People v. Ickler, 877 P.2d 863 (Colo. 1994);
Carradine v. United States, 420 A.2d 1385 (D.C. 1980); Haiflich v. State, 285 So. 2d 57 (Fla. Ct.

86
App. 1973); State v. Edelblute, 424 P.2d 739 (Idaho 1967); People v. Johns, 795 N.E.2d 433 (Ill.
Ct. App. 2003); Johnson v. State, 659 N.E.2d 194 (Ind. Ct. App. 1995); State v. Billings, 39 P.3d
682 (Kan. Ct. App. 2002); State v. Malone, 403 So. 2d 1234 (La. 1981); Wink v. State, 563 A.2d
414 (Md. 1989); People v. Moon, 337 N.W.2d 293 (Mich. Ct. App.1983); Smith v. State, 580
So.2d 1221 (Miss. 1991); State v. Brantley, 353 S.W.2d 793 (Mo. 1962); State v. Mendoza, 579
P.2d 1255 (N.M. 1978). Some courts have held that revoking probation or parole merely returns
the offender to the same status enjoyed before being granted probation, parole or conditional
pardon. See, Woodward v. Murdock, 24 N.E. 1047 (Ind. 1890); Commonwealth ex rel. Meredith
v. Hall, 126 S.W.2d 1056 (Ky. 1939); Guy v. Utecht, 12 NW2d 753 (Minn. 1943).

More recently, courts have generally held that because conditional release is not a right
an offender can demand but extends no further than the conditions imposed, revoking the
privilege triggers only very limited rights. Offenders enjoy some modicum of due process,
particularly with regards to revocation, which impacts the retaking process. Beside the rules of
the Commission, several U.S. Supreme Court cases may the process for return of offenders for
violating the terms and condition of their supervision. See e.g., Morrissey v. Brewer, 408 U.S.
471 (1972) (parolee entitled to revocation hearing); Gagnon v. Scarpelli, 411 U.S. 778 (1973)
(probationer entitled to revocation hearing); Carchman v. Nash, 473 U.S. 716 (1985) (probation-
violation charge results in a probation-revocation hearing to determine if the conditions of
probation should be modified or the probationer should be resentenced; probationer entitled to
less than the full panoply of due process rights accorded at a criminal trial). The U.S. Supreme
Court has recognized that offenders subject to probation or parole have some liberty interests,
but that they need not be accorded the “full panoply of rights” enjoyed by defendants in a pretrial
status because the presumption of innocence has evaporated. Due process requirements apply
equally to parole and probation revocation. See generally, Gagnon, supra.

4.4.3.2 Right to Counsel

Under the rules of the Commission, a state is not specifically obligated to provide counsel
in circumstances of revocation or retaking. However, particularly with regard to revocation
proceedings, a state should provide counsel to an indigent offender if she or he may have
difficulty in presenting their version of disputed facts, cross-examining witnesses, or presenting
complicated documentary evidence. Gagnon, supra at 788. Presumptively, counsel should be
provided where, after being informed of his right, the indigent probationer or parolee requests
counsel based on a timely and colorable claim that he or she has not committed the alleged
violation or, if the violation is a matter of public record or uncontested, there are substantial
reasons in justification or mitigation that make revocation inappropriate. See generally, Gagnon,
supra. Providing counsel for proceedings in the receiving state may be warranted where the
sending state intends to use the offender’s violations as a basis for revoking conditional release.
In the revocation context officials in the receiving state are not only evaluating any alleged
violations but are also creating a record for possible use in subsequent proceedings in the sending
state. See Rule 5.108. The requirement to provide counsel would generally not be required in
the context where the offender is being retaken and the sending state does not intend to revoke
conditional release based on violations that occurred in the receiving state. In this latter context,
no liberty interest is at stake because the offender has no right to be supervised in another state.

87
 The provision of the Morrissey and Gagnon decisions governing revocation hearings and
appointment of counsel have been read by some courts to apply only after the defendant is
incarcerated. See, State v Ellefson, 334 N.W.2d 56 (SD 1983). However, the law in this area is
unsettled. At least one case provides insight into the Supreme Court’s evolving jurisprudence
with regard to the right to counsel in non-traditional criminal sentencing proceedings. See, e.g.,
Alabama v. Shelton, 535 U.S. 654 (2002) (Sixth Amendment does not permit activation of a
suspended sentence upon an indigent defendant’s violation of the terms of his probation where
the state did not provide counsel during the prosecution of the offense for which he is
imprisoned). In Shelton, the Court reasoned that once a prison term is triggered the defendant is
incarcerated not for the probation violation but for the underlying offense. The uncounseled
conviction at that point results in imprisonment and ends up in the actual deprivation of a
person’s liberty. The Court also noted that Gagnon does not stand for the broad proposition that
sequential proceedings must be analyzed separately for Sixth Amendment purposes, with the
right to state-appointed counsel triggered only in circumstances where proceedings result in
immediate actual imprisonment. The dispositive factor in Gagnon and Nichols v. United States,
511 U.S. 738 (1994), was not whether incarceration occurred immediately or only after some
delay. Rather, the critical point was that the defendant had a recognized right to counsel when
adjudicated guilty of the felony for which he was imprisoned. Revocation of probation would
trigger a prison term imposed for a misdemeanor of which Shelton was found guilty without the
aid of counsel, not for a felony conviction for which the right to counsel is questioned.
Similarly, returning a defendant to a sending state on allegations that he or she violated the terms
of their probation and thus are now subject to incarceration may give rise to due process
concerns. Because Shelton was limited to actual trial proceedings – distinguished from post-trial
proceedings – its direct application to retaking proceedings may be of limited value. However,
the decision does provide insight into the gravity the Supreme Court attaches to the opportunity
to be heard and the assistance of counsel if liberty interests are at stake.

4.4.3.3 Specific Considerations for Probable Cause Hearings under ICAOS

It is important to emphasize the distinction between retaking that may result in

revocation and retaking that will not result in revocation. Where there is no danger that the
sending state will revoke the offender’s probation or parole supervision, the offender is not
entitled to a probable cause proceeding. As previously discussed, an offender has no right to be
supervised in another state and the sending state retains the right under the ICAOS to retake an
offender for any or no reason. See Paull v. Park County, 218 P.3d 1198 (S. Ct. Mt. 2009) For
example, a sending state may retake an offender because the offender has failed to comply with a
special condition that in and of itself does not constitute a new felony offense nor can be
construed as a “significant violation.” The failure to meet a special condition may cause officials
in the sending and receiving states to conclude that the offender would be better supervised the
sending state. The broad language of the ICAOS and its rules would allow a sending state to
retake an offender even though the status of the offender’s conditional release is not in jeopardy.

Where the retaking of an offender may result in revocation of conditional release by the
sending state, the offender is entitled to the basic due process considerations that are the
foundation of the Supreme Court’s decisions in Morrissey and Gagnon, and the rules of the
Commission. Rule 5.108(a) provides, in part, that:

88
 An offender subject to retaking for violation of conditions of supervision that may
result in revocation shall be afforded the opportunity for a probable cause hearing
before a neutral and detached hearing officer in or reasonably near the place
where the alleged violation occurred. (Emphasis added)

Rule 5.108 creates a two-tier system for addressing probable cause hearing requirements.
First, an offender convicted of a new criminal offense in the receiving state is not entitled to
further hearings, the judgment of conviction being conclusive as to the status of the offender’s
violations of supervision and the right of the sending state to retake. In this circumstance, there
is no need to conduct a probable cause hearing subsequent to the court proceedings simply to
make a new (and virtually identical) record for transmission to the sending state. See Morse v.
Nelson, (2010 WL 466157 (D. Conn., Feb. 9, 2010), also D’Amato v. U.S. Parole Com’n, 837
F.2d 72, 79 (2d Cir. 1988)

PRACTICE NOTE: An offender convicted of committing a new criminal offense in the

receiving state is not entitled to a probable cause hearing, the official judgment of the court
sufficient to trigger retaking by the sending state and subsequent revocation of release.

Second, an offender must be afforded a probable cause hearing where retaking is for
other than the commission of a new criminal offense and revocation of conditional release by the
sending state is likely. The offender may waive this hearing only if she or he admits to one or
more significant violations of their supervision. See, Rule 5.108(b), also Sanders v. Pennsylvania
Board of Probation and Parole, 958 A.2d 582 (2008). The purpose of the hearing is twofold: (1)
to test the sufficiency and evidence of the alleged violations, and (2) to make a record for the
sending state to use in subsequent revocation proceedings. One of the immediate concerns in
Gagnon and Morrissey was geographical proximity to the location of the offender’s alleged
violations of supervision. Presumably, hearings on violations that occurred in a receiving state
that was geographically proximate to the sending state could be handled in the sending state if
witnesses and evidence were readily available to the offender. See, Fisher v. Crist, 594 P.2d
1140 (Mont. 1979); State v. Maglio, 459 A.2d 1209 (N.J. Super. Ct. 1979) (when sentencing
state is a great distance from supervising state, an offender can request a hearing to determine if a
prima facie case of probation violation has been made out; hearing will save defendant the
inconvenience of returning to that state if there is absolutely no merit to the claim that a violation
of probation occurred). Consistent with Gagnon and Morrissey Rule 5.108 (a) provides that an
offender shall be afforded the opportunity for a probable cause hearing before a neutral and
detached hearing officer in or reasonably near the place where the alleged violation occurred.
While a judge is not required to preside at such hearings, care should be taken to conduct these
proceedings in a fair manner consistent with the due process requirements set forth in these U.S.
Supreme Court cases. An offender’s due process rights are violated where a witness against an
offender is allowed to testify via another person without proper identification, verification, and
confrontation, e.g.,, with a complete lack of demonstrating good cause for not calling the real
witness. See, State v. Phillips, 126 P.3d 546 (N.M. 2005).

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PRACTICE NOTE: If there is any question regarding the intent of the sending state to revoke
an offender’s conditional release based on violations in the receiving state, the offender should
be given a probable cause hearing as provided in Rule 5.108. Failure to do so may act to bar
consideration of those violations in subsequent revocation proceedings in the sending state.

If an offender is entitled to a probable cause hearing, Rule 5.108(d) defines the basic
rights of the offender. The offender is entitled, at a minimum, to (1) written notice of the alleged
violations of the terms and conditions of supervision, (2) disclosure of non-privileged or non-
confidential evidence, (3) the opportunity to be heard in person and present witnesses and
documentary evidence, and (4) the opportunity to confront and cross examine witnesses. As
previously discussed, the offender may also be entitled to the assistance of counsel. The
requirements in Rule 5.108 are consistent with the minimum due process requirements
established in Morrissey (offender entitled to (a) written notice of the violations; (b) disclosure of
evidence against probationer or parolee; (c) opportunity to be heard and to present witnesses and
documentary evidence; (d) the right to confront and cross-examine witnesses; (e) a neutral and
detached hearing body; and (f) a written statement by the fact finder as to the evidence relied
upon). Rule 5.108 does not define the specific type of hearing required only that it be a probable
cause “type” hearing. At least one court has acknowledged that the language of Rule 5.108
simply contemplates some type of due process hearing that is a generally consistent with the due
process requirements of Gagnon and Morrissey. See, Smith v. Snodgrass, 112 Fed. Appx.
695 (10th Cir. 2004) (petitioner's claim that the state violated procedures specified in the
interstate compact authorizing her transfer to Arizona are merit less; relevant sections of the
Compact simply acknowledge the due process requirement of a preliminary revocation hearing
recognized in Morrissey and Gagnon and, given the interstate-transfer context, provide for it in
the receiving state).

The probable cause hearing required by Rule 5.108 need not be a full “judicial
proceeding.” A variety of persons can fulfill the requirement of a “neutral and detached” person
for purposes of the probable cause hearing. For example, in the context of revocation, it has
been held that a parole officer not recommending revocation can act as a hearing officer without
raising constitutional concerns. See, Armstrong v. State 312 So. 2d 620 (Ala. 1975). See also, In
re Hayes, 468 N.E.2d 1083 (Mass. Ct. App. 1984) citing Gerstein v. Pugh, 420 U.S. 103 (1975)
(while offender entitled to hearing prior to rendition, reviewing officer need not be a judicial
officer; due process requires only that the hearing be conducted by some person other than one
initially dealing with the case such as a parole officer other than the one who has made the
violations report). However, the requirement of neutrality is not satisfied when the hearing
officer has predetermined the outcome of the hearing. See, Baker v. Wainwright, 527 F.2d 372
(5th Cir. 1976) (determination of probable cause at commencement of hearing violated the
requirement of neutrality). This does not prohibit a judicial proceeding on the underlying
violations, but merely provides states some latitude in determining the nature of the hearing, so
long as it is consistent with basic due process standards. Presumably if officials other than
judicial officers are qualified to handle revocation proceedings, these same officials can preside
over a probable cause hearing in the receiving state.

Rule 5.108(e) requires the receiving state to prepare a written report of the hearing within
10 business days and to transmit the report and any evidence or record from the hearing to the

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sending state. The report must contain (1) the time, date and location of the hearing, (2) the
parties present at the hearing, and (3) a concise summary of the testimony and evidence relied
upon. Under Rule 5.108(e), even if the offender is exonerated after the probable cause hearing
the receiving state must transmit a report to the sending state.

PRACTICE NOTE: Rule 5.108 requires the receiving state to prepare and transmit a report on
the probable cause hearing to the sending state notwithstanding a finding that the offender did
not commit the alleged violations of supervision.

It is important that Rule 5.108 be read in conjunction with other rules regarding retaking
and special conditions as this may affect the outcome of the proceedings and the impact of
subsequent proceedings in the sending state. At the conclusion of a hearing, the presiding
official must determine whether probable cause exists to believe that the offender committed the
alleged violations of the conditions of their supervision. However, a determination made in a
proceeding for mandatory retaking must be made in view of Rule 5.103(a). That rule provides,
in part, that officials in the receiving state must show “that the offender committed three or more
significant violations arising from separate incidents that establish a pattern of non-compliance
[.]” See, Rule 5.103(a). In order to support the request for mandatory retaking by the receiving
state as well as to provide a basis for subsequent proceedings in the sending state which could
result in revocation, it is advisable that the hearing officer in the receiving state determine
whether sufficient cause exists to conclude that three significant violations of the conditions of
supervision occurred. A significant violation is one that “means an offender’s failure to comply
with the terms or conditions of supervision that, if occurring in the receiving state, would result
in a request for revocation of supervision.” See Rule 1.101. Therefore, it logically follows that
the hearing officer should determine that each of the three or more violations is individually –
not cumulatively – a significant violation.

By contrast, if a hearing is conducted which is based on other than mandatory retaking,

e.g., violations of a special condition imposed by the receiving or sending state, two
considerations arise. First, the hearing officer must determine whether the offender violated the
terms and conditions of supervision, e.g., the offender indeed failed to comply with a special
condition. If the hearing officer so concludes, a second determination may need to be made. If
the receiving state is notified by the sending state of its intention to revoke probation or parole
based upon the violation of a special condition and requests a hearing, or if the receiving state
intends to provide the sending state with a sufficient basis for revocation and voluntarily
conducts such a hearing, under Gagnon and Morrissey, the hearing officer must determine
whether the violation is of a sufficient nature that it would typically result in revocation in the
receiving state. Conceivably, a hearing officer could find that the violation occurred but that
because it would not rise to the level of revocation in the receiving state, retaking is not
warranted. Two important points must be emphasized. First, the determination “of likelihood of
revocation” would not be conclusively binding on the sending state as only the state granting
conditional release has jurisdiction to make a final determination on revocation. See, Scott v.
Virginia, 676 S.E.2d 343, 347 (Va. App. 2009); Bills v. Shulsen, 700 P.2d 317 (Utah 1985);
State ex rel. Reddin v. Meekma, 306 N.W.2d 664 (Wis. 1981). There is, nevertheless, a potential
for conflicting conclusions between officials in the sending and receiving states regarding the
severity of a violation and its implication.

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 Second, notwithstanding the fact that the determination of “likelihood of revocation” is
made with reference to the receiving state’s standards, a sending state could conceivably obviate
the need for a probable cause hearing by asserting that it has no intention of revoking the
offender’s conditional release. Such an assertion by the sending state would foreclose it from
using the violation as a predicate for revocation, notwithstanding the jurisdiction to do so. This
reading of Rule 5.108(a) is consistent with the general principles of Gagnon and Morrissey. The
purpose of the probable cause hearing in the receiving state is not to test the sufficiency of a
sending state’s decision to retake but to determine the merits of alleged violations that occurred
in the receiving state and to secure a record for subsequent proceedings in the sending state.
Under the due process principles articulated in Gagnon and Morrissey, an assertion by the
sending state that it has no intention to revoke conditional release (thus negating the need for a
probable cause hearing in the receiving state) would act to bar consideration of the violations in
any subsequent revocation proceedings. Any other reading would allow a sending state to by-
pass the minimum due process requirements established in Gagnon, Morrissey and Rule 5.108
simply by asserting it has no intention to revoke and then subsequently not honor that position.
See e.g., Fisher v. Crist, 594 P.2d 1140 (Mont. 1979) (a writ of habeas corpus will be granted
when revocation of parole is based on violations that occurred in the receiving state and offender
was not granted an on-site probable cause hearing prior to retaking; waiver of hearing will not be
inferred by offender’s failure to demand hearing).

If the hearing officer determines that probable cause exists to believe that the offender
has committed the alleged violations, the receiving state must detain the offender in custody
pending the outcome of decisions in the sending state. Within 15 business days of receipt of the
probable cause hearing report the sending state must notify the receiving state of its intent to (1)
retake the offender, or (2) take other action. See Rule 5.108(f). The sending state must retake an
offender within 30 calendar days of the decision to retake. It is conceivable, therefore, that a
receiving state would have to hold an offender for up to 45 days after the hearing officer issues a
report. The offender cannot be admitted to bail or otherwise released from custody. See Rule
5.111. See also discussion at § 4.4.3. The cost of incarceration is the responsibility of the
receiving state. (Rule 5.106.)

The rules do not impose on the receiving state any timeframe for initiating the probable
cause hearing. There are no time periods specified for holding a probable cause hearing or for
providing notice and, therefore, no due process violation per se. See, People ex rel. Jamel Bell v.
Santor, 801 N.Y.S.2d 101 (App. Div. N.Y. 2005). However, recent changes to Rule 5.108
impose certain mandatory timeframes on the sending state after issuance of the hearing officer’s
report. The failure to comply with these timeframes presumably could give rise to challenges to
the incarceration in either the sending or receiving states. See, Williams v. Miller-Stout, 2006
U.S. Dist. LEXIS 80443 (M.D. Ala. November 2, 2006) (person named as custodian in a habeas
action and the place of a petitioner's custody are not always subject to a literal interpretation;
jurisdiction under § 2241 lies not only in the district of actual physical confinement but also in
the district where a custodian responsible for the confinement is present).

PRACTICE NOTE: A sending state’s failure to comply with post-hearing report timeframes
could give rise to habeas corpus relief in either the sending or receiving states.

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 If the hearing officer fails to find probable cause to believe the offender has committed
the alleged violations, the receiving state must continue supervision per the plan. See, Rule
5.108(g). The offender must be released if in custody. See, Rule 5.108(g) (2) & (3).
Additionally, the receiving state must notify the sending state of its determination at which point
the sending state must vacate any warrant it has issued. Likewise, the receiving state must vacate
any warrant it has issued.

In sum, offenders subject to retaking are entitled to a probable cause hearing only in the
circumstances mandated under Gagnon and Morrissey and codified by the Commission’s rules.
This right cannot be waived unless accompanied by the offender’s admission of having
committed one or more significant violation(s). See Rule 5.108. This rule requires that an
offender shall be afforded the opportunity for a probable cause hearing before a neutral and
detached hearing officer (in many states a judicial officer but not necessarily so) in or reasonably
near the place where the alleged violation occurred.. This hearing shall have the basic elements
of due process and fundamental fairness, yet does not have to rise to the level of a full
adversarial hearing. Offenders may be entitled to appointment of counsel where warranted by
the particular facts and circumstances of the case. A determination by a sending state that an
offender violated the terms of probation or parole supervision is conclusive in proceedings in the
receiving or asylum state so long as fundamental principles of due process were afforded by the
sending state. If at the conclusion of a hearing in the receiving state the critical determinations
are met and the offender is not subject to further criminal proceedings in that state (or an asylum
state), the offender may be “retaken” by sending state authorities, who are permitted to return the
offender free from interference by authorities of any states that are members of the ICAOS.

4.4.3.4 Probable Cause Hearings when Violations Occurred in another State

It is important to maintain the distinction between a probable cause hearing and a

retaking hearing. Under the Compact, any sending state has the right to enter any other member
state and retake an offender. Therefore, Rule 5.108 applies only in circumstances where the
sending state intends to use violations in another state as a predicate for revocation of the
offender’s conditional release. Neither Rule 5.108 nor the Gagnon and Morrissey decisions
require a probable cause type hearing in all circumstances of retaking. See Johnson v. State, 957
N.E.2d 660 (Ind. App. 2011).

For example, in Ogden v. Klundt, 550 P.2d 36, 39 (Wash. Ct. App. 1976), the court held
that the scope of review in the receiving state in a retaking proceeding was limited to
determining (1) the scope of the authority of the demanding officers, and (2) the identity of the
person to be retaken. This principle applies in circumstances where the violations forming the
basis of retaking occurred in a state other than the state where the offender is incarcerated, e.g. a
determination of probable cause by a sending state. It is sufficient in this context that officials
conducting the hearing in the state where the offender is physically located be satisfied on the
face of any documents presented that an independent decision maker in another state has made a
determination that there is probable cause to believe the offender committed a violation. Cf., In
re Hayes, 468 N.E.2d 1083 (Mass. Ct. App. 1984). Such a determination is entitled to full faith
and credit in the asylum state and can, therefore, form the basis of retaking by the sending state

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without additional hearings. Id. The offender is entitled to notice. The hearing may be non-
adversarial. The offender, while entitled to a hearing, need not be physically present given the
limited scope of the proceeding. Id. Cf., Quinones v. Commonwealth, 671 N.E.2d 1225 (Mass.
1996) (juveniles transferred under interstate compact not entitled to a probable cause hearing in
Massachusetts before being transferred to another state to answer pending delinquency
proceedings when the demanding state had already found probable cause); In re Doucette, 676
N.E.2d 1169 (Mass. Ct. App. 1997) (once governor of the asylum state has acted on a request for
extradition based on a demanding state’s judicial determination that probable cause existed, no
further judicial inquiry may be had on that issue in the asylum state; a court considering release
on habeas corpus can do no more than decide (a) whether documents are in order; (b) whether
the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is
the person named in the request for extradition; and (d) whether the petitioner is a fugitive).

4.4.4 Bail Pending Return

An offender subject to retaking proceedings has no right to bail. Rule 5.111 specifically
prohibits any court or paroling authority in any state to admit an offender to bail pending
completion of the retaking process, individual state law to the contrary notwithstanding. Given
that the ICAOS mandates that the rules of the commission must be afforded standing as statutory
law in every member state, the “no bail” provision of Rule 5.111 has the same standing as if the
rule was a statutory law promulgated by that state’s legislature. See, Article V. Detention in a
receiving state or asylum state based on probable cause determination that the offender
committed a serious violation of the terms of probation does not give rise to a 42 U.S.C. § 1983
violation. See, Kaczmarek v. Longsworth, 1997 U.S. App. LEXIS 3406 (6th Cir. 1997).

The “no bail” provision in Rule 5.111 is not novel; states have previously recognized that
under the ICPP officials in a receiving state were bound by no bail determinations made by
officials in a sending state. See, e.g., State ex rel. Ohio Adult Parole Authority v. Coniglio, 610
N.E.2d 1196 (Ohio Ct. App. 1993) (probationer transferred from Pennsylvania could not be
released on personal recognizance as Ohio authorities were bound under the ICPP by
Pennsylvania decision as to consideration of probationer for release). States have recognized the
propriety of the “no bail” requirements associated with ICPP, even where there was no expressed
prohibition. In State v. Hill, 334 N.W.2d 746 (Iowa 1981), the state supreme court held that
Iowa authorities were agents of Nevada, the sending state, and that they could hold the parolee in
their custody pending his return to Nevada. The trial court’s decision to admit the offender to
bail notwithstanding a prohibition against such action was reversed. In Ex parte Womack, 455
S.W.2d 288 (Tex. Crim. App. 1970), the court found no error in denying bail to an offender
subject to retaking as the Compact made no provision for bail. And in Ogden v. Klundt, 550 P.2d
36, 39 (Wash. Ct. App. 1976), the court held that:

Absent express statutory authorization, the courts of Washington are without

power to release on bail or bond a parolee arrested and held in custody for
violating his parole. The Uniform Act for Out-of-State Supervision provides that a
parole violator shall be held, and makes no provision for bail or bond. The person
on parole remains in constructive custody until his sentence expires. Restated, his
liberty is an extension of his confinement under final judgment and sentence.

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 Whether the convicted person is in actual custody within the prison walls or in
constructive custody within the prison of his parole, the rule is unchanging; there
is simply no right to release on bail or bond from prison.

See also, Aguilera v. California Department of Corrections, 247 Cal.App.2d 150 (1966); People
ex rel. Tucker v. Kotsos, 368 N.E.2d 903 (Ill. 1977); People ex rel. Calloway v. Skinner, 300
N.E.2d 716 (N.Y. 1973); Hardy v. Warden of Queens House of Detention for Men, 288
N.Y.S.2d 541 (N.Y. Sup. 1968); January v. Porter, 453 P.2d 876 (Wash. 1969); Gaertner v.
State, 150 N.W.2d 370 (Wis. 1967). However, an offender cannot be held indefinitely. See,
Windsor v. Turner, 428 P.2d 740 (Okla. Crim. App. 1967) (offender on parole from New Mexico
who committed new offenses in Oklahoma could not be held indefinitely under compact and was
therefore entitled to writ of habeas corpus when trial in Oklahoma would not take place for a
year and New Mexico authorities failed to issue a warrant for his return).

PRACTICE NOTE: The ICAOS and its rules impose upon the member states (including courts
of a member state) an absolute prohibition against admitting an offender to bail pending retaking.

4.4.5 Post-Transfer Change in the Underlying Circumstances

As discussed, the transfer of supervision of an offender is mandatory in some

circumstances and receiving states are required to accept transfer if the offender is eligible under
Rules 3.101 and 3.101-1. Under the rules governing retaking, the sending state has sole
discretion to retake unless the offender is convicted of a new felony or violent crime or commits
three significant violations. See Rule 5.102 and 5.103. This presents a question: What happens
if the offender neither commits a new felony, is convicted of a violent crime nor demonstrates a
pattern of noncompliance but the original circumstances leading to the transfer have significantly
changed?

The Commission has addressed this matter in Advisory Opinion 15-2006. The facts
underlying the opinion are as follows. A receiving state requested that a sending state retake an
offender because they had lost their means of support and their sponsor family rescinded its
commitment to maintain the offender. As a result, the offender became homeless, unemployed
and without a means of support. Although the Commission recognized that post placement
changes in circumstances were not unusual, the Commission advised:

[U]nder the current rules there is no such requirement [retaking by the sending
state] which is provided either explicitly or by implication or reasonable
inference. In fact under Rules 5.101, 5.102, and 5.103 retaking by a sending state
is “at its sole discretion” except for situations in which the offender has been
charged with a subsequent criminal offense and completion of a term of
incarceration for that conviction, or placement on probation; or upon a showing
that the offender has committed three o[r] more “significant violations” which
establish a pattern of “noncompliance of the conditions of supervision.”

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 Under current rules and as a general principle, a change in the underlying circumstances
that mandated the transfer of an offender is not, in itself, grounds to require the sending state to
retake that offender if the transfer was the result of a mandatory acceptance under Rule 3.101 or
Rule 3.101-1. However, a different rule may apply in the context of a discretionary transfer
under Rule 3.102. In this latter circumstance, the transfer is purely a voluntary arrangement and
conceivably the receiving state could demand retaking of an offender based on a change of
circumstances if such a special condition was placed on the offender. For example, Rule 4.103
allows the receiving state to impose special conditions post-transfer. Conceivably this could
include a special condition that the offender demonstrate and maintain a means of support, the
failure to do so being cause to demand retaking by the sending state. See, Advisory Opinion 15-
2006; Advisory Opinion 8-2006. However, any conditions imposed on an offender either at the
time of acceptance or during the term of supervision must be reasonably related to the overall
purposes of the Compact, which is to promote offender rehabilitation and public safety.
Advisory Opinion 8-2006. The rule of “reasonableness” applies to mandatory and discretionary
transfers without distinction.

4.5 Revocation or Punitive Action by the Sending State – Special Conditions

For purposes of revocation or other punitive action, a sending state is required to give the
same effect to the violation of a special condition imposed by the receiving state as if the
condition had been imposed by the sending state. Furthermore, the violation of a special
condition imposed by the receiving state can be the basis of punitive action even though it was
not part of the original plan of supervision established by the sending state. Special conditions
may be imposed by the receiving state at the time of acceptance of supervision or during the term
of supervision, See Rule 4.103. Thus by way of example, if at the time of acceptance a receiving
state imposed a condition of drug treatment and the offender violated that condition, the sending
state would be required to give effect to that violation even though the special condition was not
a part of the original plan of supervision.

PRACTICE NOTE: A sending state must give effect to the violation of a special condition or
other requirement imposed by the receiving state even if the condition or requirement was not
contained in the original plan of supervision.

4.6 Arrest of Absconders

Upon receipt of a violation report for an absconding offender, a sending state is required
to issue a national arrest warrant upon notification that the offender has absconded. If the
absconding offender is apprehended in the receiving state, the receiving state shall, upon request
by the sending state, conduct a probable cause hearing as provided in Rule 5.108. See Rule
5.103-1.
ICAOS Rule 5.103 also require sending states to issue nationwide arrest warrants for
absconders who fail to return to the sending state no later than 10 business days. The arrest
warrant requirement applies to the failure of an offender to return to the sending state when
ordered to do so based on three or more significant violations of the terms and conditions of their
supervision in the receiving state. See, Rule 5.103(b). In this particular circumstance, once the
receiving state requests retaking and the sending state is obligated by rule to retake, the failure of

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the offender to comply results in the issuance of a nationwide arrest warrant “effective in all
compact member states, without limitation as to the specific geographical area.” Id. An
absconder is subject to arrest in all compact member states, not only in the receiving state and in
the sending state. When read in conjunction with Rule 5.111 (Denial of bail to certain
offenders), any compact member state is obligated to arrest and detain in custody an absconded
offender. Based upon the provisions of Rule 5.101 (b), with deference to ICAOS Advisory
Opinion 12-2006, it has been held that a compact offender who absconds and is subsequently
arrested, detained and returned to the sending state has no federal due process right to compel a
state authority to issue a parole violation warrant, file or hear a petition to revoke, or reach a
disposition of his parole at a given time. See Voerding v. Mahoney, (2010 WL 1416104 (D.
Mont., Feb. 22, 2010).

PRACTICE NOTE: Admission to bail or other release of an absconding offender who is the
subject of an arrest warrant issued by the sending state is strictly prohibited in any state that is a
member of the Compact regardless of whether that state was the original sending or receiving
state. Warrants issued pursuant to Rule 5.103 are effective in all member states without regard
or limitation to a specific geographical area.

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 CHAPTER 5

LIABILITY AND IMMUNITY CONSIDERATIONS FOR JUDICIAL OFFICERS AND

EMPLOYEES

5.1 State Sovereign Immunity – Generally

State sovereign immunity is a fundamental aspect of the sovereignty that the states
enjoyed before the ratification of the U.S. Constitution and the Eleventh Amendment. The
concept of state sovereign immunity involves two aspects: (1) each state is a sovereign entity in
the federal system; and (2) inherent in state sovereign immunity is the principle that a state is not
subject to suit by an individual without its consent. However, the term “state sovereign
immunity” is used imprecisely by courts to refer to both parts, i.e., the immunity from suit, and
the entity itself, including all of its powers, rights and privileges.

Because the Eleventh Amendment recognizes a state's sovereign immunity from suits
brought by individuals in federal court, the U.S. Supreme Court has often referred to this as
Eleventh Amendment immunity. “Eleventh Amendment immunity” is a misnomer, however,
because that immunity is really an aspect of the Supreme Court's concept of state sovereign
immunity and is neither derived from nor limited by the Eleventh Amendment. Nevertheless, the
term has been used loosely and interchangeably with “state sovereign immunity” to refer to a
state’s immunity from suit without its consent in federal courts. Notwithstanding the imprecise
and interchangeable nature of the concept, state sovereign immunity has both an individual
aspect and a federal aspect.

In the federal context, a state’s immunity from suit is not absolute. The U.S. Supreme
Court has recognized two circumstances in which an individual may sue a state in federal court.
First, Congress may abrogate the states’ immunity by authorizing such a suit in the exercise of its
power to enforce the Fourteenth Amendment. Second, a State may at its pleasure waive its
sovereign immunity by consenting to suit. See, Meyers v. Texas, 410 F.3d 236 (5th Cir.
2005). Voluntary consent to waiving the immunity may be explicit in state statute or a state’s
constitution. Waiver may also be made by affirmative action. Generally, the Court will find a
waiver either if (1) the state voluntarily invokes federal court jurisdiction; or (2) the state makes
a clear declaration that it intends to submit itself to federal court jurisdiction. A waiver of
Eleventh Amendment immunity by state officials must be permitted by the state constitution, or
state statutes, and applicable court decisions must explicitly authorize such a waiver by the state
officials since they cannot waive immunity unless authorized to do so. See, Lapides v. Bd. of
Regents, 251 F.3d 1372 (11th Cir. 2001). Unless waived, Eleventh Amendment immunity also
bars a §1983 lawsuit against a state agency or state officials in their official capacities even if the
entity is the moving force behind the alleged deprivation of the federal right. See Kentucky v.
Graham, 473 U.S. 159, 169 (1985); also Larsen v. Kempker, 414 F.3d 936, 939 n.3 (8th Cir.
2005).

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5.2 Liability Considerations under 42 U.S.C. § 1983

42 U.S.C. § 1983 creates a state and federal cause of action for damages arising out of the
acts of state officials that violate an individual’s civil rights. The statute provides that “Every
person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress, except that in any
action brought against a judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.” To establish a claim under 42 U.S.C. § 1983 a plaintiff must
prove (1) a violation of a constitutional right, and (2) that the alleged violation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

In general, conduct by persons acting under color of state law which is wrongful under 42
U. S. C. § 1983 or § 1985 (3) cannot be immunized by state law. A construction of the federal
statute that permitted a state immunity defense to have controlling effect would transmute a basic
guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the
proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir.
1968). The immunity claims raise questions of federal law. Hampton v. Chicago, 484 F.2d 602,
607 (7th Cir. 1973), cert. denied, 415 U.S. 917. Therefore, state immunity law generally cannot
be construed to insulate the wrongful actions of state authorities.

Generally, § 1983 liability will not be imposed where the consequences of state action are
too remote to be classified as “state action.” Thus, the relatives of a person murdered by a
paroled offender cannot maintain an action against the state because the acts of the officers are
too remote, the parole board owed no greater consideration to the victim than to any other
member of the public, and the offenders was not acting as an agent of the state for purposes of
federal civil rights liability. See, generally, Martinez v. California, 444 U.S. 277 (1980). See,
also, Howlett v. Rose, 496 U.S. 356 (1990) (conduct by persons acting under color of state law
which is wrongful under § 1983 cannot be immunized by state law even though the federal cause
of action is being asserted in state court.) However allegations which do not attribute particular
actions to individual defendant are insufficient to constitute the ‘individualized participation’
necessary to state a claim under §1983. See Esnault v. Suthers, 24 Fed. Appx. 854-55 (10th Cir.
2001). Thus an ICAOS offender alleging that defendants collectively detained him without due
process and were deliberately indifferent to his rights but failed to identify any particular action
by the defendants fails to state a claim under 42 U.S.C. § 1983. Grayson v. Kansas, 2007 WL
1259990 (D.C. KS 2007); See also Sconce v. Interstate Com'n for Adult Offender Supervision,
2009 WL 579399 (D. Mont. 2009) Furthermore, the “public duty doctrine” may also insulate
state officials from liability where it can be shown that absent statutory intention to the contrary,
the duty to enforce statutory law is a duty owed to the public generally, the breach of which is
not actionable on behalf of the private person suffering damage. See, Westfarm Assocs. Ltd.
Pshp. v. Washington Suburban Sanitary Comm'n, 66 F.3d 669 (4th Cir. 1995).

Within the context of ICAOS, and its predecessor compact, the U.S. Court of Appeals
for the Third Circuit in Doe v. Pennsylvania Board of Probation and Parole, 513 F.3d 95 held

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that the compact did not create a federally enforceable right under 42 U.S.C. § 1983 for those
subject to its provisions (parolees and probationers). Relying on Cannon v. University of
Chicago, 441 U.S. 677 (1979), Alexander v. Sandoval, 532 U.S. 275 (2001), and Gonzaga
University v. Doe, 536 U.S. 273 (2002), the Court determined that the Compact does not confer
any private right of action upon either a probationer or parolee based upon a failure to comply
with its provisions and found that absent a clear and unambiguous intent on the part of Congress
to create a federal cause of action, 42 U.S.C. § 1983 was not available to redress violations of the
compact. Id at 103-05.(“We hold that Doe does not have a private right of action under Section
1983 to enforce the provisions of the Interstate Compact because one cannot be inferred from its
terms.”) Id. at 105. See alsoM.F. v. State of New York Executive Dept. Div. of Parole, 640 F.
3d 491, 75 A.L.R. 6th 691 ( 2d Cir. 2011); Orville Lines v. Wargo, 271 F. Supp. 2d 649 (W.D.
Pa. 2003). Therefore, regardless whether a plaintiff is seeking to enforce a federal statutory right
through a private cause of action implicit in the statute itself or through § 1983, there must first
be a determination that Congress intended to create a federal right. Where there is no indication
from the text and structure of a statute that Congress intended to create new individual rights,
there is no basis for a private suit, whether under § 1983 or under an implied right of action.
Unlike the Interstate Agreement on Detainers, which confers certain right on incarcerated
persons, both the prior Parole Compact and ICAOS speak only of obligations among the states.
The language of the compacts did not clearly and unambiguously create a federal right of action.

A similar analysis might apply in the context of potential victims of parolees or

probationers who might relocate under the provisions of the compact and at least one federal
court and one state court have so held. See Hodgson v. Mississippi Department of Corrections,
963 F. Supp. 776 (E.D. Wis. 1997) (No private right of action was created under the Uniform
Act for Out-of-State Parolee Supervision for the wrongful death of a victim of a Mississppi
parolee who was allegedly improperly allowed to relocate to Wisconsin under the compact.)
More recently the same analysis was applied in Doe v. Mississippi Department of Corrections et
al., 859 So.2d 350 (2003) (Plaintiff had no claim under the Mississippi Tort Claims Act for
damages sustained as the result of a rape committed by an Illinois parolee transferred under the
compact whom she alleged was improperly accepted under the compact and negligently
supervised by Mississippi parole officers). See also Connell v. Mississippi Department of
Corrections, 841 So.2d 1127 (2003)

As a general proposition, state officials do not enjoy absolute immunity from civil
liability for their public acts. In recent years, the availability of the defense of sovereign
immunity has been substantially reduced by state legislatures waiving immunity for ministerial
or operational acts. Two “types” of public acts generally define the extent to which a state
official may be liable for conduct resulting in injuries to others.

5.3 Liability Associated with Discretionary Acts.

A discretionary act is defined as a quasi-judicial act that requires the exercise of judgment
in the development or implementation of public policy. Discretionary acts are generally
indicated by terms such as “may” or “can” or “discretion.” Whether an act is discretionary
depends on several factors: (1) the degree to which reason and judgment is required; (2) the

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nature of the official’s duties; (3) the extent to which policymaking is involved in the act; and (4)
the likely policy consequences of withholding immunity. See, Heins Implement Co. v. Mo. Hwy.
& Trans. Comm’n, 859 S.W.2d 681, 695 (Mo. Banc 1993).

5.4 Liability Associated with Ministerial or Operational Acts

A ministerial act, also called an operational act, involves conduct over which a state
official has no discretion; officials have an affirmative duty to comply with instructions or legal
mandates or to implement operational policy. Ministerial acts are generally indicated by terms
such as “shall” or “must.” A ministerial act is defined as an act “that involves obedience to
instructions or laws instead of discretion, judgment or skills.” See, Black’s Law Dictionary, 7th
Ed. (West 1999).

5.5 Immunity Waiver

In general, state officials are not liable for injuries related to discretionary acts because
the states have not waived their sovereign immunity in this regard. See, King v. Seattle, 525
P.2d 228 (1974). The public policy behind maintaining immunity is to foster the exercise of
good judgment in areas that call for such, e.g., policy development. Absent such immunity, state
officials may hesitate to assist the government in developing and implementing public policy.

Many states have waived sovereign immunity for the failure to perform or the negligent
performance of ministerial acts. Consequently, the failure to perform a ministerial act or the
negligent performance of such an act can expose state officials to liability if a person is injured
as a result thereof. Whether an act is discretionary or ministerial is a question of fact. The
nature of the act, not the nature of the actor, is the determining consideration. See, Miree v.
United States, 490 F. Supp. 768, 773 (1980).

Where immunity is waived, the state is generally liable to provide a defense and cover
damages up to the amount authorized by the state legislature or the provisions of a risk or legal
defense fund. See, e.g., Fla. Stat. § 768.28 (2003), which limits the states liability in most
circumstances to $100,000 per person or $200,000 per incident. There are some exceptions,
which require a direct appropriation from the state legislature. A state official can be held
personally liable to the extent of any damages awarded that exceed state policy. See, e.g.,
McGhee v. Volusia County, 679 So. 2d 729 (Fla. 1996) (absent statutory provision, a state
official would be personally liable for that portion of a judgment rendered against him or her that
exceeds the state’s liability limits). However, many states specifically exempt “willful and
wanton” conduct from coverage deeming such conduct to lie outside the scope of employment.
See, e.g., Hoffman v. Yack, 373 N.E.2d 486 (Ill. 1978).

A state official who violates federal law is generally stripped of official or representative
character and may be personally liable for their conduct; a state cannot cloak an officer in its
sovereign immunity. Ex parte Young, 209 U.S. 123 (1908). Sovereign immunity does not extend
to the personal actions of state officials. The intent of sovereign immunity is to protect the

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treasury, not necessarily to protect or vindicate the actions of state officials simply because they
are state officials.

5.6 Types of “Acts” Under ICAOS

The distinction between discretionary and ministerial is a critical consideration for state
officials charged with administering the ICAOS. Examples of discretionary acts include Rule
3.101-2 (discretionary transfer of supervision), Rule 3.106 (expedited reporting instructions), and
Rule 4.103 (imposition of special conditions). Examples of arguably ministerial acts include
Rule 2.108 (requirement to that a receiving state must continue to provide supervision for a
transferred offender who becomes mentally or physically disabled), Rule 2.110 (transfer of
offenders under the Compact), Rule 3.102 (submission of transfer request), Rule 3.103 (reporting
instructions for offender living in the receiving state at the time of sentencing), Rule 3.105 (pre-
release transfer request), and Rule 3.108-1 (notification to victim advocate authorities).

By contrast, Rule 4.101 arguably imposes both a discretionary duty and a ministerial duty
on receiving state officials in that it mandates that a receiving state must provide supervision in a
manner “determined by the receiving state and consistent with the supervision of other similar
offenders.” That supervision must be provided is mandated. The level of supervision is
discretionary with receiving state officials so long as it is similar to that provided like offenders.
However, in cases where a receiving state would not otherwise impose supervision on a similar
offender convicted in the receiving state, the receiving state is required to impose some level of
supervision on an offender transferred through the ICAOS. See ICAOS Advisory Opinion 1-
2007. Whether the level of supervision provided an out-of-state offender is “like” would give
rise to both discretionary and ministerial obligations. The characterization of particular actions
by state officials would be a fact question in any litigation that results from a failure to provide
“like” supervision.

5.7 Judicial Immunity

Judicial immunity protects judges and court employees against liability arising from
judicial decisions and the judicial process. Virtually any decision of a judge that results from the
judicial process – that is, the adjudicatory process – is protected by judicial immunity. With
some limitations, this immunity extends to court employees and others, such as jurors, parole and
probation officers, and prosecutors who are fulfilling the court’s orders or participating in some
official capacity in the judicial process. Quasi-judicial immunity may also extend to other agents
of state government including probation and parole authorities. At least one court has held that
absolute – as distinguished from qualified – judicial immunity extends to individual members of
parole boards. On appeal, the Board members contend that they are not only entitled to qualified
immunity, but that they are also entitled to absolute quasi-judicial immunity. See, Holmes v.
Crosby, 418 F.3d 1256 (11th Cir. 2005). See, also, Fuller v. Georgia State Bd. of Pardons &
Paroles, 851 F.2d 1307, 1310 (11th Cir. 1988); Clark v. State of Ga. Pardons & Paroles Bd., 915
F.2d 636, 641 n.2 (11th Cir. 1990). However, quasi-judicial immunity does not extend to
probation or parole officers investigating suspected parole violations, ordering the parolee's

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arrest pursuant to a parole hold, and recommending that parole revocation proceedings be
initiated against him. Such actions are more akin to law enforcement actions and are not entitled
to immunity. See, Swift v. California, 384 F.3d 1184 (9th Cir. 2004).

However, not everything a judge or court employee does is protected by judicial

immunity. The U.S. Supreme Court has repeatedly held that judicial immunity only protects
those acting in a judicial capacity and does not extend to administrative or rulemaking matters.
See, Forrester v. White, 484 U.S. 219, 229 (1988). Acts of judges or court employees that are
purely administrative or supervisory in nature are not protected by judicial immunity and such
non-judicial acts may give rise to liability under 42 U.S.C. 1983 and any state counterparts.

Generally, probation and parole officers possess absolute judicial immunity where their
actions are integral to the judicial process. In determining whether an officer’s actions fall
within the scope of absolute judicial immunity, courts “have adopted a ‘functional approach,’
one that turns on the nature of the responsibilities of the officer and the integrity and
independence of his office. As a result, judicial immunity has been extended to federal hearing
officers and administrative law judges, federal and state prosecutors, witnesses, grand jurors, and
state parole officers.” Demoran v. Witt, 781 F.2d 155, 156, 157 (9th Cir. 1985). While judicial
immunity may protect judges and court officials from monetary damages, it does not protect
them against injunctive relief. Pulliam v. Allen, 466 U.S. 522 (1984); Dorman v. Higgins, 821
F.2d 133 (2nd 1987).

Generally, the protections afforded to officers apply to the extent that the officer’s
activities are “integral” to the judicial process. Several courts have held that actions such as
supervision – distinguished from investigation – are administrative in nature and not a judicial
function entitled to judicial immunity. Acevado v. Pima City Adult Probation, 690 P.2d 38 (Ariz.
1984). The placement of juveniles by a probation counselor is an administrative function and the
court’s mere knowledge of a placement is of itself insufficient to convert an administrative act
into a judicial act. Faile v. S.C. Dept. of Juvenile Justice, 566 S.E.2d 536 (S.C. 2002). In some
states, quasi-judicial immunity is available only if the probation officer “acted pursuant to a
judge’s directive or otherwise in aid of the court. . . . Any claim to immunity which the
Commonwealth might have asserted ceased when [the probation officer] failed to aid in the
enforcement of the conditions of . . . probation.” A.L. v. Commonwealth, 521 N.E.2d 1017
(Mass. 1988). One court has held that parole officers do not enjoy absolute immunity for
conduct not associated with the decision to grant, deny or revoke parole. See, Swift v.
California, 384 F.3d 1184 (9th Cir. 2004) (parole officer does not have immunity for violations of
4th amendment rights as the activities are investigative in nature and do not involve the granting,
denial or revocation of parole). Cf. Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525 (8th
Cir. 2005) (juvenile officer does not enjoy judicial immunity to the extent that he acted beyond
the scope of the court’s orders, acted without proper court authority, and relied on bad
information to obtain orders from a court).

5.8 Qualified Immunity

Courts have recognized that parole and probation officers may possess “qualified
immunity” to the extent that they act outside any judicial or quasi-judicial proceeding. Whether

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qualified immunity is available is largely dependent on the facts and circumstances of the
particular case.

A state official may be covered by qualified immunity where they (1) carry out a
statutory duty, (2) act according to procedures dictated by statute and superiors, and (3) act
reasonably. Babcock v. State, 809 P.2d 143 (1991). Government officials performing
discretionary functions are entitled to qualified immunity unless they violate clearly established
statutory or constitutional rights of which a reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800 (1982). See also, Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.
2006); Perez v. Unified Gov’t of Wyandotte County/Kansas City, Kan., 432 F.3d 1163, 1165
(10th Cir. 2005); Robinson v. Warden, Northern NH Correction Facility, 634 F. Supp. 2d 116 (D.
Me. 2009) If the plaintiff’s allegations sufficiently allege the deprivation of a clearly established
constitutional or statutory right, qualified immunity will not protect the defendant.
Grayson v. Kansas, 2007 WL 1259990 (D.C. KS 2007); Payton v. United States, 679 F.2d 475
(5th Cir. 1982) (Trial court erred in finding that requesting or transmitting records and providing
standard medical care pertaining to the parole decision were not actionable under Federal Tort
Claim Act. Statute placed on parole board a non-discretionary duty to examine the mental health
of parolee. Where government assumed the duty of providing psychiatric treatment to offender,
it was under a non-discretionary duty to provide proper care.);

Parole and probation officers may enjoy qualified immunity if their actions are in
furtherance of a statutory duty and in substantial compliance with the directives of superiors and
relevant statutory or regulatory guidelines. The immunity requires only that an officer’s conduct
be in substantial compliance, not strict compliance, with the directives of superiors and
regulatory procedures. Taggart v. State, 822 P.2d 243 (Wash. 1992). Whether a government
official may be held personally liable for an allegedly unlawful action turns on the “‘objective
legal reasonableness’ of the action in light of the legal rules that were ‘clearly established’ at the
time.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting and interpreting Harlow v.
Fitzgerald, 457 U.S. 800, 818-19 (1982)). Qualified immunity is a question of law and a public
official does not lose his or her qualified immunity merely because his or her conduct violates
some statutory provision. Davis v. Scherer, 468 U.S. 183, 194 (1984).

5.9 Negligent Supervision

Some of the factors a court may consider in determining whether a state official is liable
for negligent supervision are:

• Misconduct by a non-policymaking employee that is the result of training or

supervision “so reckless or grossly negligent” that misconduct was “almost
inevitable” or “substantially certain to result.” Vinson v. Campbell County Fiscal
Court, 820 F.2d 194 (6th Cir. 1987).

• The existence of special custodial or other relationships created or assumed by the

state in respect of particular persons. A “right/duty” relationship may arise with
respect to persons in the state’s custody or subject to its effective control and whom

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 the state knows to be a specific risk of harm to themselves or others. Additionally,
state officials may be liable to the extent that their conduct creates a danger from
which they fail to adequately protect the public. See, Withers v. Levine, 615 F.2d 158
(4th Cir.), cert. denied, 449 U.S. 849 (1980) (prison inmates under known risk of
harm from homosexual assaults by other inmates); Davis v. Zahradnick, 600 F.2d 458
(4th Cir. 1979) (inmate observed attacking by another inmate); Woodhous v.
Virginia, 487 F.2d 889 (4th Cir. 1973), Cf. Orpiano v. Johnson, 632 F.2d 1096, 1101-
03 (4th Cir. 1980), cert. denied, 450 U.S. 929 (1981) (no right where no pervasive
risk of harm and specific risk unknown); Hertog v. City of Seattle, 979 P.2d 400
(Wash. 1998) (city probation officers have a duty to third persons, such as the rape
victim, to control the conduct of probationers to protect them from reasonably
foreseeable harm; whether officers violated their duty was subject to a factual
dispute.)

• The foreseeability of an offender’s actions and the foreseeability of the harm those
actions may create. Even in the absence of a special relationship with the victim,
state officials may be liable under the “state created danger” theory of liability when
that danger is foreseeable and direct. See, Green v. Philadelphia, 2004 U.S. App.
LEXIS 4631 (3rd Cir. 2004). The state-created danger exception to the general rule
that the state is not required to protect the life, liberty, and property of its citizens
against invasion by private actors is met if: (1) the harm ultimately caused was
foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety
of the plaintiff; (3) there existed some relationship between the state and the plaintiff;
(4) the state actors used their authority to create an opportunity that otherwise would
not have existed for the third party's crime to occur.

• Negligent hiring and supervision in cases where the employer’s direct negligence in
hiring or retaining an incompetent employee whom the employer knows, or by the
exercise of reasonable care should have known, was incompetent or unfit, thereby
creating an unreasonable risk of harm to others. See, Wise v. Complete Staffing
Services, Inc., 56 S.W.3d 900, 902 (Tex. Ct. App.2001). Liability may be found
where supervisors have shown a deliberate indifference or disregard to the known
failings of an employee.

The obligation of state officials to fulfill ministerial acts, which are not open to
discretion, generally gives rise to liability. For example, an officer can be held liable for failing
to execute the arrest of a probationer or parolee when there is no question that such an act should
be done. See, Taylor v. Garwood, 2000 U.S. Dist. LEXIS 9026 (D.C. Pa. 2000).

5.10 Summary of Cases Discussing Liability in the Context of Supervision

5.10.1 Cases finding that liability may be imposed

In the following cases, the courts found liability on the part of government officials
supervising offenders or other persons:

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• Semler v. Psychiatric Institute of Washington, D.C., 538 F.2d 121 (4th Cir. 1976):
Mother brought an action against psychiatric institute, a physician, and a probation
officer, seeking recovery for the death of her daughter, who was killed by a
probationer that had been a patient at the institute. Mother alleged that appellants
were negligent in failing to retain custody over the patient until he was released from
the institute by order of the court. The court concluded that the state court's probation
order imposed a duty on appellants to protect the public from the reasonably
foreseeable risk of harm imposed by the patient. The court held that the breach of the
state court’s order by the defendants was the proximate cause of the daughter’s death.

• Division of Corrections v. Neakok, 721 P.2d 1121 (Alaska, 1986): A newly released
offender shot and killed his teenaged stepdaughter and her boyfriend, and raped, beat
and strangled to death another woman. Relatives of the murdered persons sued the
state of Alaska, claiming the state was negligent in failing to impose special
conditions of release, to supervise offender adequately on parole in allowing offender
to return to a small, isolated community without police officers or alcohol counseling,
and in failing to warn his victims of his dangerous propensities. The Supreme Court
affirmed in part and reversed in part, holding that offender’s victims and his actions
were within the zone of foreseeable hazards of the state’s failure to use due care in
supervising a parolee. The state had a legal duty to supervise offender and the
authority to impose conditions on parole and to re-incarcerate offender if these
conditions were not met. The state was obligated to use reasonable care to prevent
the parolee from causing foreseeable injury to other people. See, also Bryson v.
Banner Health Systems, 2004 Alas. LEXIS 54 (Alaska 2004) (Private treatment
center liable for injuries caused by known rapist with extensive history of alcohol-
related crimes who attacked other program participants. As part of the treatment,
center encouraged all members of the group to contact and assist each other outside of
the group setting. Center knew that the rapist had an extensive criminal history of
alcohol-related crimes of violence, including sexual assaults. The rapist relapsed into
drinking while being treated and attacked fellow patient. Court correctly held that the
center owed the victim an actionable duty of due care to protect her from harm in the
course of her treatment, including foreseeable harm by other patients.)

• Acevedo v Pima County Adult Probation Dept., 690 P.2d 38 (Ariz. 1984): Action
brought against county probation department and four officers for damages suffered
as a result of the alleged negligent supervision of a probationer. The court held that
probation officers were not protected from liability by judicial immunity. It was
alleged that the children of the plaintiffs had been sexually molested by the
probationer, who had a long history of sexual deviation, especially involving children.
Probation officers permitted the probationer to rent a room from one of the plaintiffs
knowing there were five young children in the residence and despite the fact that as a
special condition of probation the probationer was not to have any contact whatsoever
with children under the age of 15. The court noted that whether a particular officer
was protected by judicial immunity depended upon the nature of the activities
performed and the relationship of those activities to the judicial function. A non-

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 judicial officer was entitled to immunity only in those instances where he performed a
function under a court directive and that was related to the judicial process. Not all
supervising activities of a probation officer are entitled to immunity because much of
the work is administrative and supervisory, not judicial in function. The court
concluded that judicial immunity could not be invoked because the officers did not
act under a court’s directive and, in fact, had ignored the specific court orders.

• Johnson v State, 447 P2d 352 (Ca. 1968): Action brought by foster parent against the
state for damages for an assault on her by a youth placed in her home by the youth
authority. Plaintiff alleged that the parole officer placing the youth failed to warn her
of the youth’s homicidal tendencies and violent behaviors. Court held that placement
of the youth and providing adequate warnings was a ministerial duty rather than a
discretionary act. Therefore, the state was not immune from liability. The court
determined that the release of a prisoner by the parole department would be a
discretionary act, whereas the decision of where to place the probationer and what
warnings to give constituted only a ministerial function for which liability could
attach.

• Sterling v. Bloom, 723 P.2d 755 (Id. 1986): A car operated by probationer whose
blood alcohol was .23 percent by weight, struck plaintiff's motorcycle while under
legal custody and control of Idaho Board of Corrections. A special condition of his
probation was that probationer was not to drive a motor vehicle except for
employment purposes for the first year of probation. The court held that under state
law, every governmental entity was subject to liability for money damages whether
arising out of a governmental or proprietary function, if a private person or entity
would be liable for money damages under the laws of the state. One who takes
charge of a third person whom he knows or should know to be likely to cause bodily
harm to others if not controlled is under a duty to exercise reasonable care to control
the third person to prevent him from doing such harm. The key to this duty is not the
supervising individual’s direct relationship with the endangered person or persons,
but rather is the relationship to the supervised individual. Where the duty is upon
government officials, it is a duty more specific than one to the general public.

• Mianecki v. Second Judicial Dist. Court, 658 P.2d 422 (Nev. 1983), cert. dismissed
464 U.S. 806 (1983): Convicted sex offender on probation for the sexual assault of a
boy in Wisconsin relocated permanently to Nevada with approval. Offender moved
in with the parents and child, who were uninformed of the offender’s history. The
offender victimized the child. Parents sued alleging that the Wisconsin and the
employee, who approved the offender’s travel permit, violated the Interstate Compact
for the Supervision of Parolees and Probationers. The complaint also alleged
negligence. Nevada Supreme Court concluded that Wisconsin and the employee
were not immune from suit in Nevada. If the acts complained of had been committed
by Nevada Department of Parole and Probation, sovereign immunity would not have
barred suit against the state. Nevada as the forum state was not required to honor
Wisconsin's claim of sovereign immunity. In addition, the law of Wisconsin was not
granted comity, as doing so would have been contrary to the policies of Nevada.

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• Hansen v. Scott, 645 N.W.2d 223 (N.D. 2002) cert denied, 537 U.S. 1108 (2003):
Daughters brought an action in connection with the murder of their parents by the
parolee who had been transferred to North Dakota for parole supervision by Texas
officials. The daughters alleged that the employees of Texas authority failed to notify
North Dakota officials about the inmate’s long criminal history and dangerous
propensities. Daughters sought to hold the employees liable on their wrongful death,
survivorship, and 42 U.S.C.S. § 1983 claims. The court held that the claims against
the employees stated a prima facie tort under N.D. R. Civ. P. 4(b)(2)(C) and thus the
exercise of personal jurisdiction over the employees was proper because the
employees’ affirmative action of asking North Dakota to supervise their parolee
constituted activity in which they purposefully availed themselves of the privilege of
sending the parolee to North Dakota. The employees could have reasonably
anticipated being brought into court in North Dakota, and the exercise of personal
jurisdiction over the employees comported with due process.

• Reynolds v. State, Div. of Parole & Community Servs., 471 N.E.2d 776 (Ohio 1984):
The victim was assaulted and raped by the prisoner while the prisoner was serving a
prison term for an involuntary manslaughter. The prisoner had been granted a work
release furlough. Under Ohio Rev. Code Ann. § 2967.26(B), the prisoner was to have
been confined for any periods of time that he was not actually working at his
approved employment. Victim contended that the state was liable for the injuries
suffered because the state breached its duty to confine the prisoner during the non-
working period when he raped the victim. The court found that, although the victim
was unable to maintain an action against the state for its decision to furlough the
prisoner, the victim was able to maintain an action against the state for personal
injuries proximately caused by the failure to confine the prisoner during non-working
hours as required by law. Such a failure to confine was negligence per se and was
actionable.

• Jones-Clark v. Severe, 846 P.2d 1197, (Ore. App. 1993): Probation department had a
duty to control court probationers to protect others from reasonably foreseeable harm.
Even though officers could not act on their own to arrest a probationer or to revoke
probation, they were in charge of monitoring probationers to ensure that conditions of
probation were being followed, and had a duty to report violations to the court.

• Doe v. Arguelles, 716 P.2d 279 (Utah 1985): Plaintiff sued the state and parole
officer on behalf of 14-year-old ward who was raped, sodomized, and stabbed by
juvenile offender while he was on placement in the community, but before he had
been finally discharged from the Youth Detention Center (YDC). State Supreme
Court concluded that the state and officer could be held liable for injuries to the
extent that the officer’s conduct involved the implementation of a plan of supervision,
not policy decisions. However, under state law, plaintiffs must show officer acted
with gross negligence to establish personal liability.

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 • Joyce v. Dept. of Corr., 119 P.3d 825 (Wash. 2005): The state corrections department
was supervising an offender convicted of two felonies when the offender stole a car,
ran a red light, and collided with a vehicle killing the occupant. At trial the jury found
that the state's negligence caused the death and awarded damages. On appeal, the
court refused to limit the state's duty to supervise offenders, finding that once the state
had taken charge of an offender, it had a duty to take reasonable precautions to
protect against reasonably foreseeable dangers posed by the dangerous propensities of
parolees. However, the court found errors at trial regarding jury instructions and
remanded for new trial on the issue of the state’s negligence.

• Hertog v. City of Seattle, 979 P.2d 400 (Wash. 1999): A young child was raped by a
person on probation for a lewd conduct conviction in municipal court and on pretrial
release awaiting trial in county court for a sexually motivated burglary. Plaintiff, the
child’s guardian ad litem, sued the city and county claiming that the city probation
counselor and the county pretrial release counselor negligently supervised the
individual who committed the rape. Defendants’ summary judgment motion was
denied and the denial was upheld by the appellate court. The court ruled that
defendants did have a duty to third persons, such as the rape victim, to control the
conduct of probationers and pretrial releasees to protect others from reasonably
foreseeable harm. Whether defendants violated their duty was subject to a factual
dispute. In addition, because the probationer had signed a written release allowing
mental health professionals to report to the city probation officer, he had no
expectation of confidentiality as to his records as they were no longer subject to the
psychologist-client privilege.

• Bishop v. Miche, 943 P.2d 706 (Wash. C.A. 1997): Parents of a child killed in a car
accident with a drunk driver sued the drunk driver for wrongful death and the county
for negligent supervision by a probation officer. Plaintiffs alleged that had the
probation officer properly supervised the driver and reported his probation violations,
the driver would have been jailed and their son would not have been killed. The court
held that although the county could not be held liable for the sentencing error, there
were fact issues with respect to plaintiffs’ negligent supervision claim. The court
stated that the probation officer had sufficient information about the driver to cause
her to be concerned that he was violating his probation terms and to cause her to be
concerned that he might start drinking and driving again.

5.10.2 Cases Rejecting Liability:

In the following cases, the courts refused to impose liability on government officials
responsible for supervising offenders or other persons:

• Dept. of Corr. v. Cowles, No. S-11352, No. 6082 (Alaska, December 15, 2006): A
parolee murdered his girlfriend and shot himself. One of the bodies fell on a child,
leading to suffocation. The complaint alleged that the State committed negligence by
failing to implement and enforce an appropriate parole plan, to require appropriate

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 post-release therapy, to enforce parole violations, to properly supervise the parolee,
and to revoke his parole. The Alaska Supreme Court held that the state’s duty of care
in supervising its parolees should be narrowly construed. However, the selection of
conditions of parole were operational activities not entitled to immunity but that at
least some of the state's alleged acts of negligence were shielded by discretionary
function immunity. The state could not be held liable for the parole officer's alleged
negligence in failing to take affirmative action to discover parole violations absent
notice. Material issues of fact remained with respect to the issue of causation.

• Martinez v. California, 444 U.S. 277 (1980): Parole officials released a known
violent offender who subsequently killed the decedent. The family sued the state
alleging reckless, willful, wanton, and malicious negligence and deprivation of life
without due process under 42 U.S.C.S. § 1983. The Supreme Court held that the
California statute granting immunity was not unconstitutional. The Court further held
that the U.S. Constitution only protects citizens from deprivation by the state of life
without due process of law. The decedent's killer was not an agent of the state and
the parole board was not aware that decedent, as distinguished from the public at
large, faced any special danger. The Court did not resolve whether a parole officer
could never be deemed to “deprive” someone of life by action taken in connection
with the release of a prisoner on parole for purposes of 42 U.S.C.S. § 1983 liability.

• Weinberger v Wisconsin, 906 F. Supp 485 (WD Wis. 1995): Probation officers were
not liable for injuries caused by drunken probationer collision with plaintiff’s car
based on a failure to arrest probationer a night earlier when found driving under the
influence (DUI). It was decision of judge to allow probationer to remain out of
custody pending disposition of petition that left probationer able to drive and re-
offend. Failure of probation officers to arrest probationer did not proximately cause
injuries.

• Pate v. Alabama Bd. of Pardons & Paroles, 409 F. Supp. 478 (M.D. Ala. 1976),
affirmed without opinion, 548 F.2d 354 (5th Cir. 1977): Plaintiff sued for damages
from the state when minor daughter was allegedly raped and killed by a parolee of the
Alabama Board of Pardons and Paroles. Plaintiff alleged that granting of parole and
subsequent supervision was either negligent or done in a willfully and wantonly
manner. Court held that the board of pardons and paroles was immune from suit by
virtue of the Eleventh Amendment and the doctrine of official immunity. Court held
that individual parole officers should be granted same immunity accorded judges
notwithstanding allegations of misfeasance, nonfeasance and malfeasance in the
conduct of their supervision of parolee.

• McCleaf v. State, 945 P.2d 1298 (Ariz. Ct. App. Div. 1 1997): Probation officer did
not act with “actual malice” in connection with allegedly negligent supervision of
probationer. Because manner of supervision was a discretionary act, officer was
immune from liability for pedestrian struck and killed by probationer who was
driving while intoxicated and without driver's license. Probationer had told the
officer that he was not using alcohol or drugs and officer saw no signs of such use.

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 Nothing in the record indicated that officer in any way encouraged or condoned
probationer's drinking or drunken driving.

• Department of Corrections v. Lamaine, 502 S.E.2d 766 (Ga. 1998): Conduct of

parole officer in supervising parolee, who was on conditional release after 10 years in
prison for aggravated rape and sodomy convictions and while out raped and killed
fellow restaurant employee, was not reckless. There was no proof that the officer was
aware of a risk so great that it was highly probable that the injuries would follow or
that he acted with conscious disregard of a known danger.

• Anthony v. State, 374 N.W.2d 662 (Iowa 1985): Plaintiffs filed action against the
state for injuries caused by a sex offender whom the state released to work in the
community without imposing any conditions on his release. The court found that the
state had breached no duty to plaintiffs because the decision to adopt a work release
plan for a prisoner was a discretionary function. State law barred negligence claims
against the state for the failure to exercise or perform a discretionary function.
Furthermore, the state had not breached a duty of care under a negligent supervision
theory for the same reason. Additionally, the evidence concerning implementation
was not so strong as to compel a finding of negligence as a matter of law. Finally,
there was no duty to warn because there was no threat to an identifiable person.

• Schmidt v. HTG Inc., 961 P.2d 677 (Kan. 1998), cert. denied, 525 U.S. 964 (U.S.
1998): Probation officer’s failure to report violations by probationer who injured
child while driving under influence of alcohol was not liable for damages. Officer
did not take custody of probationer sufficiently to create a duty to protect the public.
Statutory duty to report probation violations was owed to court and not to general
public.

• Lamb v Hopkins, 492 A.2d 1297 (Md. 1985): Probation officer who had probationer
arrested on warrant for violating terms of probation did not have actual ability to
control probationer by preventing his release which resulted in additional crimes.
Even assuming that officer had provided available information about other pending
charges against probationer to the court at revocation hearing, decision whether to
revoke probation was within control of court, not probation officer.

• Johnson v. State, 553 N.W.2d 40 (Minn. 1996): The trustees of victim, who was
raped and murdered by parolee who had failed to report to a halfway house, initiated
a wrongful death action against the state and halfway house. The court held that
statutory immunity and official immunity barred the trustees’ claim because the
decision to release the prisoner was a protected discretionary function. The court
further found that the immunities protected the state and county for the alleged failure
of its agents to determine whether the parolee had arrived at the halfway house
because imposing this liability would undermine public policy clearly manifested by
the legislature to provide for the release of parolees into the community. The court
found that the halfway house was not negligent in that it had no legal duty to control

111
 the parolee; the halfway house neither had custody of the parolee nor had it entered
into a special relationship with him due to his failure to arrive at the halfway house.

• Hurst v. State Dep’t of Rehabilitation & Correction, 650 N.E.2d 104 (Ohio 1995):
Parolee was declared absent without leave. Pursuant to the policy of the Department
of Rehabilitation and Correction, parole officer waited 30 days before drafting a
parole violator-at-large (PVAL) report, which was never entered into the computer
networks. Parolee was arrested for his participation in the beating death of decedent.
The executor of decedent’s estate brought an action against state alleging wrongful
death, negligence, and negligence per se. The court held that the only affirmative
duty imposed upon state officials was to report the status of a PVAL and to enter this
fact into the official minutes of the Adult Parole Authority. There was no statute or
rule that imposed a specific, affirmative duty to enter the offender’s name on any
computer network. Therefore, the plaintiffs failed to establish the existence of a
special duty owed the decedent by the state and the public duty rule applied to bar
liability on the part of the Adult Parole Authority.

• Kim v. Multnomah County, 909 P.2d 886 (Ore. 1996): Action brought against
probation officer alleging gross negligent supervision with reckless disregard for
safety of others. Plaintiff alleged officer’s unreasonably heavy caseload, failure to
make home visit, and failure to recognize mental condition of perpetrator was
worsening. Court held that probation officer did not create dangerous condition or
cause death of son and that the officer was immune from liability for damages
resulting from negligence or unintentional fault in performance of discretionary
duties.

• Zavalas v. State, 809 P.2d 1329 (Ore. App. 1991): Parole officer enjoyed judicial
immunity in action by mother of eight-year-old child, despite allegations that the
officer was negligent in failing to supervise sex offender who was subject to a
condition that he refrain from knowingly associating with victims or any other minor
except with written permission of the court or officer. Plaintiffs could not establish
evidence that the officer knew the parolee was violating probation nor did terms of
probation prohibit parolee from living next to families or children's playground.
Officer was carrying out the court’s direction to supervise parolee and level of
supervision exercised by him was within authority granted by court.

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All Advisory Opinions At-A-Glance
Any state may submit an informal written request to the Executive Director for assistance in interpreting

the rules of this compact. The Executive Director may seek the assistance of legal counsel, the Executive

Committee, or both, in interpreting the rules. The Executive Committee may authorize its standing

committees to assist in interpreting the rules. Interpretations of the rules shall be issued in writing by the

Executive Director or the Executive Committee and shall be circulated to all of the states. / Advisory

Opinion Policy

2012 Details At Issue Finding

Rule(s): 5.108(d) Whether ICAOS Rule 5.108(d) Based upon the referenced guidance in
Opinion #: 5-2012 permits the use of 2-way video these U.S. Supreme Court decisions, it
Issued: 10.11.12 closed circuit television during seems clear that if the Sixth
Requester: Colorado probable cause hearings where Amendment’s confrontation clause
determined by the hearing officer allows the use of 2-way video closed
to be necessary to protect a circuit television in the actual trial of a
witness from harm which might criminal defendant in order to prevent
result from testifying in person. harm to a witness which might result
from testifying in person, such a
procedure is also permissible, if
determined by the hearing officer to be
necessary, during the informal inquiry
required at the preliminary hearing to
determine probable cause under ICAOS
Rule 5.108(d). In summary, based
upon the terms of the compact, the
referenced rules and the legal
authorities cited herein, ICAOS Rule
5.108(d) permits the use of 2-way video
closed circuit television during probable
cause hearings where determined by the
hearing officer to be necessary to
protect a witness from harm which
might result from testifying in person.

.
Rule(s): 2.110 Whether or not the definition of While such a practice may be subject to
Opinion #: 4-2012 the term ‘Relocate’ in ICAOS Rule criticism based on public safety
Issued: 10.11.12 1.101 and as applicable in ICAOS concerns, the current definition of
Requester: Minnesota Rule 2.110, should be interpreted ‘Relocate’ does not appear to limit the
to mean that an offender may not cumulative number of days within which
proceed and remain in another an offender may be permitted to remain
state for a cumulative period in another state to a total of 45
exceeding 45 days in any 12 cumulative days during the same 12
month period without being in month period.
violation of ICAOS Rule 2.110?

Rule(s): 2.110 Whether an offender whose Where jurisdiction over a parolee or

Opinion #: 3-2012 supervision was never transferred probationer is vested in the compact
Issued: 05.14.12 under the Compact and who transfer process, as provided under the
Requester: California subsequently absconds Compact and ICAOS Rules, the
supervision is subject to the terms Constitutional provisions concerning
of the Compact and ICAOS rules extradition need not apply. If the
and may the State from which the offender was transferred into the state
offender absconded return the under the provisions of the interstate
offender under the Compact or is compact, then the return of the

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 the Extradition Clause of the U.S. offender, even in the case of an
Constitution the only means by absconder, is properly accomplished
which such an absconder may be pursuant to the provisions of the
returned? Compact and its duly authorized rules
and regulations.

However, when the offender’s

supervision was never transferred to a
receiving state under the Compact and
no application for transfer or waiver of
extradition ever occurred, neither the
Compact nor the ICAOS rules apply to
this offender who, as a ‘fugitive from
justice’ having absconded from
probation in California, must be
apprehended and returned under the
extradition clause of the U.S.
Constitution.

.
Rule(s): 3.105(a) Can a receiving state’s acceptance In summary, based upon the terms of
Opinion #: 2-2012 of an application for transfer of the compact, the referenced rules and
Issued: 04.20.12 supervision under ICAOS Rule the legal authorities cited herein, under
Requester: Arizona 3.105(a) or approval of reporting ICAOS Rule 3.105(a) neither the
instructions be the cause of a acceptance of a request for transfer by a
release of an offender from a receiving state nor approval of reporting
correctional facility which would instructions can be the basis for either
otherwise keep the offender the determination of whether the
incarcerated? sending state will release an offender
from a correctional facility or the
planned release date.

.
Rule(s): 3.101 Are persons ‘acquitted’ by reason Based on the facts as set out in the
Opinion #: 1-2012 of insanity under the New Jersey request and considering the provisions
Issued: 01.30.12 ‘Carter-Krol’ statute eligible for of the New Jersey statute, the literal
Requester: New Jersey interstate transfer of supervision language and plain meaning the
under the Compact? applicable definitions and provisions of
both the Interstate Compact and ICAOS
Rules, and other applicable legal
authorities, it is our opinion that persons
‘acquitted’ by reason of insanity under
the New Jersey ‘Carter-Krol’ statute are
not eligible for interstate transfer of
supervision under the Compact.

2011 Details At Issue Finding

Rule(s): 5.103-2 Whether ICAOS Rule 5.103-2 The current language of ICAOS Rule
Opinion #: 2-2011 requires the sending state to 5.103-2(b) does not mandate that the
Issued: 01.24.11 determine an offender’s status as a sending state make a determination that
Requester: Colorado ‘violent offender’ as defined in an offender is a ‘violent offender’ at the
ICAOS Rule 1.101 at the time of time of transfer of supervision to the
the transfer of supervision to the receiving state under the terms of the
receiving state. compact.

.
Rule(s): 2.105 Whether ICAOS Rule 2.105 applies ICAOS Rule 2.105 applies to all
Opinion #: 1-2011 to misdemeanor violations misdemeanor violations, including those
Issued: 01.24.11 pertaining to hunting which involve pertaining to hunting, which involve the
Requester: Washington the use of a firearm and whether use of a firearm and offenders convicted
offenders convicted and sentenced and sentenced to supervision for such
to supervision for such violations violations are thus subject to transfer
are thus subject to transfer under under the compact.
the compact.

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2010 Details At Issue Finding
Rule(s): - What is the effect of a Washington While the Washington law clearly
Opinion #: 4-2010 statute providing that the provides that the DOC is not authorized
Issued: 07.15.10 Department of Corrections is not to supervise any offender “sentenced
Requester: West Region authorized to supervise certain to a term of community custody,
offenders who are sentenced to a community placement, or
term of community custody, community supervision or any
community placement, or probationer unless the offender or
community supervision on probationer is one for whom
supervision cases under the supervision is required (under this
compact. act),” no provision of the statute
prohibits a sentencing Court from
imposing upon an offender reporting
requirements directly to the Court in lieu
of the DOC.

This is attributable to a Constitutional

concern on the part of the legislature
about the ‘separation of powers’ among
the executive, legislative and judicial
branches of government. However, this
discrepancy could result in anomalous
cases in which a Court in Washington
orders some type of ‘reporting’ to the
Court or completion of some behavioral
modification or treatment program and
that the results are to be submitted
directly to the Court rather than the
Washington DOC.

Should this occur, such a case would

qualify as being ‘supervised’ under the
terms of the compact and the rules
notwithstanding the fact that the
Washington law does not permit the DOC
to supervise the offender. See ICAOS
Rule 1.101 “Supervision,” also
ICAOS Advisory Opinion 3-2005, 9-
2004, and 8-2004.

Rule(s): 1.101 Whether a California statute It is still possible that a California Court
Opinion #: 3-2010 effective in 2010 which classifies could order some type of ‘reporting’
Issued: 07.22.10 certain eligible California offenders directly to the Court or completion of
Requester: Missouri as not subject to active supervision some behavioral modification or
or revocation of parole has the treatment program and that the results
effect of removing such offenders are to be submitted directly to the Court
from the jurisdiction of the ICAOS. in lieu of the California Department of
Corrections and Rehabilitation.

Should this occur with regard to an

offender who moves to another State,
such a case would qualify as being
‘supervised’ under the terms of the
compact and the rules notwithstanding
the fact that the California law does not
permit the offender to be supervised by
the DOCR. See ICAOS Rule 1.101
“Supervision,” also ICAOS Advisory
Opinion 3-2005, 9-2004, and 8-
2004.

Rule(s): 4.112 (a)(1) Does ICAOS Rule 4.112 permit a Whether the sending state refers to its
Opinion #: 2-2010 sending state to advise a receiving determination to modify the terms of the
Issued: 07.15.10 state to close interest in a sentence as a discharge or not, by
Requester: Arizona supervision case upon modification operation of law, once supervision has
of the sentencing order so that the ceased in the sending state there is no

115
 status of the offender no longer further basis upon which the receiving
qualifies as “supervision” under state can continue to act as an agent for
ICAOS Rule 1.101 but the sending the sending state to perform supervision
state does not terminate the case. on its behalf when no such authority
over the offender continues to exist in
the sending state. This is consistent with
the previous position taken in Advisory
Opinion 11-2006 that discharge of
the offender under Rule 4.112 (a)(1) is
determinative of eligibility for supervision
under the compact.

Rule(s): 3.101 Whether a receiving state may Based upon the terms of the compact,
Opinion #: 1-2010 require all documents concerning the above referenced rules and the legal
Issued: 03.08.10 the offender which it considers authorities cited herein, neither the State
Requester: Arkansas relevant and the authority to of Washington nor any other ICAOS
return an offender whom it member state may refuse otherwise
determines can no longer be safely valid mandatory transfers of supervision
supervised in that state as under the compact on the basis that
conditions precedent to accepting additional information concerning the
a transfer of supervision of an criminal history of these offenders, not
offender under the compact. required by Rule 3.107 to be furnished,
has not been provided or that the State
of Washington will be vested with the
authority to unilaterally decide when any
of these offenders transferred can no
longer be safely supervised in the
community and that the offender needs
to be returned to the sending state in
contravention of Rule 5. 103 (a), which
requires a showing of a minimum of
three (3) significant violations
establishing a pattern of non-compliance
before retaking by the sending state is
required.

2009 Details At Issue Finding

Rule(s): 3.105 Transfer request for Based on the foregoing analysis and
Opinion #: 1-2009 offenders incarcerated at consistent with the clear intent of
Issued: 12.22.09 the time the request is the compact and the ICAOS rules as
Requester: East Region submitted well as the language and design of
Whether a sending state may the compact and the rules, a sending
request that a receiving state state may request that a receiving
investigate a request to state investigate a request to
transfer supervision under the transfer supervision under the
compact prior to the compact prior to the offender’s
offender’s release from release from incarceration when the
incarceration when the offender is subject to a “split
offender is subject to a “split sentence” of jail or prison time and
sentence” of jail or prison release to probation supervision.
time and release to probation
supervision, or must wait until
the offender is released to
supervision in order to make
such a request.

2008 Details At Issue Finding

Guidance Concerning Out- Since ICAOS Rule 4.101 requires
Rule(s): 4.101
of-State Travel for Sex that a receiving state shall supervise
Opinion #: 3-2008 Offenders a compact offender “consistent with
Issued: 11.19.08 Whether a receiving state’s the supervision of similar offenders
compact administrator may sentenced in the receiving state”
Requester: Massachusetts prohibit an offender, whose then compact offenders should be
supervision was transferred to subject to the same exception as
the receiving state pursuant offenders sentenced in the state.
to ICAOS, from traveling

116
 outside of the receiving state The sentencing court in the sending
while under supervision in the state does not surrender its’
receiving state? Whether the jurisdiction over an offender whose
sentencing court in the supervision is transferred to another
sending state retains the state. The sending state court
authority, in light of ICAOS continues to exercise some authority
and its attendant rules and over a compact offender for the
regulations, to authorize an duration of the period of supervision.
offender’s out-of-state travel
for work purposes once his or
her supervision has been
transferred to another state
pursuant to ICAOS?

.
Rule(s): 2.105 & 2.110 (b) Authority to Issue Travel Offenders not subject to ICAOS may,
2-2008 Permits depending on the terms and
Opinion #: 07.07.08 Authority of judges and conditions of their sentences, be
Issued: Texas probation or parole officers to permitted to move across state lines
Requester: permit certain offenders to without prior approval from the
travel outside of Texas who, receiving state and neither judges
by reason of the type of crime nor probation officers are prohibited
committed or the duration of by ICAOS from allowing such
the travel, are not eligible for offenders to travel.
transfer of supervision under
the provisions of the An offender who is not relocating but
Interstate Compact for Adult simply leaving the state (for a period
Offender Supervision not exceeding 45 consecutive days)
(“ICAOS”) or ICAOS for routine business travel,
administrative rules. Whether vacations, visits to family, medical
offenders whose offenses appointments, and other such out-
otherwise qualify for transfer of-state travel normally undertaken
of supervision under the in the activities of everyday life is
provisions of ICAOS rules may not subject to the ICAOS rules
be permitted to travel out of concerning a transfer of supervision,
state for a period of forty-five other than notification requirements
(45) days or less? in victim sensitive cases, even if
otherwise eligible to transfer
supervision under the Compact.

.
Rule(s): 3.101-3(c)(1) & 4.109 Clarification of Rule 3.101- The provisions of Rule 3.103 (e) (1)
1-2008 3(c)(1) regarding sex and (2) (governing offenders in the
Opinion #: 03.17.08 offenders living in the receiving state at time of
Issued: Massachusetts receiving state at the time of sentencing) are premised on the
Requester: sentencing and of Rule 4.103 proposition that the offender’s
regarding imposition and continued lawful presence in the
enforcement of special receiving state under the compact
conditions. ultimately depends upon the
determination of the offender’s
1. Whether a sending state is eligibility for transfer.
required to provide details of
the sex offense in a request Under ICAOS Rule 4.103, the
for reporting instructions for addition of a special condition which
sex offenders living in the the receiving state is unable to
receiving state at the time of enforce only requires that the
sentencing, pursuant to Rule receiving state notify the sending
3.101-3 (c)(1). state of its inability to enforce a
special condition at the time the
2. Whether a receiving state transfer request is made [ICAOS
can deny a transfer request of Rule 4.103 (d)].
an offender where the
sending state has imposed a It is unquestionably the case that
condition on the offender that the provisions of the Compact and
the receiving state is unable its rules, by virtue of congressional
to enforce. consent under Article I, Section 10,
Clause 3 of the federal Constitution
3. Whether the provisions of have been ‘transformed into federal
the Compact and its rules law’ and supersede conflicting state

117
 supersede conflicting state laws.
laws.

2007 Details At Issue Finding

Rule(s): 5.103 Whether All Violations Must Although the rule does not explicitly state that such violations
Opinion #: 4-2007 Occur in the Receiving must occur in the receiving state, it is unreasonable to
Issued: 11.14.07 State assume that Rule 5.103 (a) intends that significant violations
Requester: Massachusetts occurring in the sending state prior to transfer are also to be
& New York considered by the receiving state to satisfy the requirements
of the rule. The provisions of ICAOS Rule 3.101 are
unequivocal in requiring that to be eligible for mandatory
transfer an offender must be “in substantial compliance with
the terms of supervision in the sending state,” in addition to
the other requirements set forth in that rule.

In order to qualify for a subsequent ‘mandatory transfer’

under Rule 3.101 an offender would have to demonstrate
‘substantial compliance’ with the terms of supervision in the
sending state without which such offender would be
disqualified. If the receiving state has accepted the
subsequent transfer and by such act has in effect agreed that
the offender is in substantial compliance with the terms of
supervision, then it is unreasonable to assume the subsequent
application of Rule 5.103 (a) to include those prior violations
as a basis to require retaking.

.
Rule(s): 3.103 (a)(2) Denial of Reporting Where an investigation by the
Opinion #: 3-2007 Instructions receiving state reveals that a
Issued: 09.17.07 transfer request for an offender
Requester: Pennsylvania living in the receiving state at the
time of sentencing does not comply
with the provisions of Rule 3.101(b)
which requires a valid plan of
supervision, a receiving state may
properly deny the transfer request.
If this determination is made prior to
the expiration of the time frames set
forth in Rule 3.103(a) the issuance
of reporting instructions to such an
offender has become moot. If the
investigation has not been
completed, reporting instructions are
required to be issued as provided in
Rule 3.103(a). Upon completion of
investigation, if the receiving state
subsequently denies the transfer on
the same basis or upon failure to
satisfy any of the other requirements
of Rule 3.101, the provisions of Rule
3.103(e)(1) and (2) clearly require
the offender to return to the sending
state or be retaken upon issuance of
a warrant.

.
Rule(s): 3.101 (b) Offenders in Federal Housing A receiving state is not authorized to
Opinion #: 2-2007 deny a transfer of an offender based
Issued: 05.10.07 solely on the fact that the offender
Requester: New Jersey intends to reside in Section 8
housing. Denial of transfer on this
basis, with the exception of sex
offenders and those convicted of the
manufacture or production of
methamphetamine, is tantamount to
adding a special condition or
requirement prior to the acceptance
of transfer in violation of ICAOS Rule
3.101.

118
.
Rule(s): 4.101 Clarification that a receiving Under the Compact an offender
Opinion #: 1-2007 state “shall supervise an whose sentence includes provisions
Issued: 05.10.07 offender... consistent with the which, for example, require
Requester: Idaho supervision of other similar completion of other terms and
offenders sentenced in the conditions such as a court ordered
receiving state” treatment or behavioral modification
program or periodic reports filed
with the court in addition to merely
requiring compliance with all laws, is
not in actuality an “unsupervised
offender.” As such the relocation of
offenders under such sentences is
subject to the jurisdiction of the
ICAOS and applications for transfer
should continue to be submitted and
investigated as required under the
Compact. During the term of the
conditions imposed by the sending
state such an offender is subject to
the rules of the Compact governing
supervision of offenders generally as
provided in Chapters 4 and 5 of the
Compact rules.

2006 Details At Issue Finding

Rule(s): 5.108 & Clarification of Rules 5.108 Each state should determine the extent to which
4.109-1 and 4.109-1. authority is vested in parole and probation officers as
Opinion #: well as other law enforcement and peace officers to
Issued:
17-2006 effect such an arrest, including the need for a warrant.
Requester: 03.15.07 If application for issuance of an arrest warrant must be
Rules Committee made to a judge, it may be helpful to point out that
Article V, subsection (b) of the state statute enacting
ICAOS provides that ICAOS rules have the force and
effect of statutory law and are binding in the
compacting states. Article IX further provides that the
courts of each compacting state shall enforce the
Compact and take all actions necessary and appropriate
to effectuate the Compact’s purposes and intent.

.
Rule(s): 2.105(a)(1) Interpretation of “physical In summary, a person charged and adjudicated on a
Opinion #: 16-2006 harm”. misdemeanor offense of assault would be subject to the
Issued: 03.06.07 compact pursuant to Rule 2.105(a)(1), assuming all
Requester: Colorado other provisions of the compact and rules apply. The
fact that the instrumentality of the harm was an
automobile has no bearing on the determination of
eligibility under Rule 2.105(a)(1). Each state
establishes the elements of its own criminal laws. Rule
2.105(a)(1) addresses only the nature of the offense
committed (“an offense in which a person has incurred
direct or threatened physical or psychological harm”),
not the particular instrumentality used in the
commission of the offense. If the law of the sending
state recognizes the use of an automobile as an
element in an assault offense and the offender is so
adjudicated, Rule 2.105(a)(1) applies.

.
Rule(s): 3.101 Obligation of the sending Under the current rules there is no such retaking
Opinion #: 15-2006 state when the offender no requirement which is provided either explicitly or by
Issued: 08.30.06 longer meets requirements implication or reasonable inference. In fact, under Rules
Requester: Massachusetts of Rule 3.101. 5.101, 5.102, and 5.103 retaking by the sending state
is “at its sole discretion” except for situations in which
the offender has been charged with a subsequent
criminal offense and completion of a term of
incarceration for that conviction, or placement on
probation; or upon a showing that the offender has

119
 committed three of more “significant violations” which
establish a pattern of “noncompliance of the conditions
of supervision.”

.
Rule(s): 4.107(b)(2) Clarification on Offenders The fee imposed annually under Wisconsin law does not
Opinion #: 14-2006 being charged fee by appear to be for the purpose of the supervision of such
Issued: 08.15.06 sending state after offenders by parole or probation officers and instead is
Requester: Michigan transferred to receiving for the purpose of defraying the cost of sex offender
state. registration and victim notification, it does not appear
to fit the criteria of a “supervision fee” and may be
collected on Compact offenders. However, under ICAOS
Rule 4.108 (a) Wisconsin is solely responsible for the
collection of such an annual assessment. While there is
no requirement that Michigan undertake to require
payment of this fee by an offender, under Rule 4.108
(b), upon notice from Wisconsin that the offender is not
complying with this financial obligation, Michigan must
notify the offender that this is a violation of the
conditions of supervision and must comply as well as
providing the offender with the address to which
payments are to be sent.

.
Rule(s): 3.101 Clarification on offenders 1. An undocumented immigrant who meets the
Opinion #: 13-2006 who are undocumented definition of “offender” and seeks to transfer under the
Issued: 08.01.07 immigrants. Compact is subject to the jurisdiction of the Compact
Requester: Washington and the immigrant’s status as “undocumented” would
not be a per se disqualification as long as the immigrant
establishes that the prerequisites of Rule 3.101 have
been satisfied. This includes the requirement that the
immigrant be in ‘substantial compliance’ with the terms
and conditions of supervision in the sending state.

2. If a Court knowingly releases an undocumented

immigrant to supervision under the compact, the
language of the current rules requires that the
supervision of such an offender must be transferred if
the mandatory criteria of Rule 3.101 are met and the
sending state does not revoke parole or probation
based upon an offender’s status as an undocumented
immigrant.

3. Under Rule 5.101 retaking of an undocumented

immigrant is at the sole discretion of the sending state
unless the offender comes within the exceptions
provided in Rule 5.102 (upon conviction for a new
felony offense and completion of incarceration or
placement on probation) or as provided in Rule 5.103
(upon a showing that the offender has committed three
or more significant violations arising from separate
incidents which establish a pattern of non-compliance
with the conditions of supervision). In the eventthat the
offender was transferred under the ‘discretionary
transfer’ provisions of Rule 3.101-2 and the receiving
state has added a special condition to the acceptance of
said discretionary transfer which would require retaking
of the offender upon determination that the offender is
undocumented, then such a special condition would
appear to be permitted under the Compact and the
rules as was previously concluded in Advisory Opinion
8-2006.

.
Rule(s): 5.101 Clarification on Retaking by Neither ICAOS Rule 5.101(b) nor any other current rule
Opinion #: 12-2006 the sending state. requires that a warrant be issued by the sending state
Issued: 08.11.06 when an offender absconds. While Rule 5.101 (a)
Requester: North Carolina provides that a sending state may retake any compact
offender at its sole discretion, except as required under

120
 Rule 5.102 and 5.103, neither the time frame nor the
means by which the retaking of the offender shall occur
are provided.

.
Rule(s): 4.112 Closing supervision by the A Receiving State Closing supervision interest under
Opinion #: 11-2006 - R receiving state. Rule 4.112, does not preclude the jurisdiction of the
Issued: 10.10.06 Compact except for cases where the original term of
Requester: North Carolina supervision has expired.

Article I of the Compact and Rule 5.107 specifically

authorize officers of a sending state to enter a state
where the offender is found and apprehend and retake
the offender notwithstanding case closure under Rule
4.112 with the exception of cases in which the original
term of supervision has expired.

.
Rule(s): 5.103 Offenders transferred under Offenders transferred prior to the adoption of ICAOS
Opinion #: 10-2006 the compact prior to August rules August 1, 2004 may be retaken under the current
Issued: 08.14.06 1, 2004. rules if one of the significant violations occurred after
Requester: Massachusetts August 1, 2004.

.
Rule(s): 2.110 An offender being in the States which allow eligible offenders to transfer prior to
Opinion #: 9-2006 receiving state prior to the receiving state having an opportunity to investigate
Issued: 08.14.06 investigation as a valid are in violation of the Compact under Rule 3.102 (b)
Requester: Minnesota reason for rejection. and Rule 2.110. In such circumstances the receiving
state can properly reject the request for transfer of
such an offender, until returned to the sending state,
due to the prior failure of the sending state to comply
with the requirements of the compact and the rules
referenced.

.
Rule(s): 3.101-2 Condition obligating A receiving state may impose a special condition on an
Opinion #: 8-2006 offender to complete offender transferred under Rule 3.101-2 to attend a
Issued: 06.19.06 residential program. treatment facility and may order the sending state to
Requester: Massachusetts return the offender if that offender has failed the
program if the offender has no other means of support
in the receiving state.

Under the compact and its rules the expectation of the

special condition imposed on a discretionary case would
be that the sending state would immediately initiate
retaking procedures by ordering the return of the
offender or issuing a warrant for his return.

.
Rule(s): 2.105 Determination of second or Rule 2.105 (a) (3) provides no such discretion but
Opinion #: 7-2006 subsequent misdemeanor unequivocally provides that if the “instant offense
Issued: 04.26.06 DUI offense. includes... a second or subsequent misdemeanor
Requester: Pennsylvania offense of driving while impaired by drugs or alcohol”
that such a misdemeanor offender “shall be eligible for
transfer.” The rule provides no exceptions to
applicability based on either the time period between
the first and subsequent offense(s) or the jurisdiction in
which the convictions occurred.

.
Rule(s): 3.101 Clarification of 90 day Rule 3.101 (a) should be determined at the time a
Opinion #: 6-2006 period of supervision is sending state submits a request for transfer of the
Issued: 04.26.06 determined. offender who at the time of said application must have
Requester: Massachusetts “more than 90 days or an indefinite period of
supervision remaining.”

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Rule(s): 3.104 & Time allowed for 45 Calendar days is the maximum time the receiving
4.101 investigation by receiving state has under the rules to respond to a sending
Opinion #: state, Rule 4.101 - Manner state’s request for transfer.
Issued: 5-2006 and degree of supervision.
Requester: 04.04.06 This rule does not permit a receiving state to impose
North Dakota the establishment of sex offender risk level or
community notification on offenders transferred under
the Compact if the receiving state does not impose
these same requirements on its own offenders.

Provisions of Rule 4.101 only apply to the manner in

which a receiving state supervises an offender who has
already been transferred in compliance with the
Compact and the Rules.

.
Rule(s): 2.109(a)(3) Region Members Casting No provisions of the compact, bylaws, or rules
Opinion #: 3-2006 Votes: Does Rule contemplates that a proposed rule or rule amendment
Issued: 02.14.06 2.109(a)(3) require that a may be officially voted upon at any point in the
Requester: New York proposed rule or rule rulemaking process by anyone other than the duly
amendment which is voted appointed Commissioner of each state.
on by the member states of
a region for submission to
the Interstate Commission
office for referral to the
Rules Committee must be
adopted by a majority vote
of Commissioners from that
region and whether non-
commissioners, such as
deputy compact
administrators, may cast
votes for this purpose.

.
Rule(s): 4.107 May a sending state The sending state is prohibited under this rule from
Opinion #: 2-2006 continue to collect imposing a supervision fee once the offender has been
Issued: 01.27.06 supervision fees on a case transferred under the Compact.
Requester: Pennsylvania that is transferred to a
receiving state which has
no law authorizing the
collection of supervision
fees.

.
Rule(s): 3.103 Shock probation released This rule provides that the exception available to
Opinion #: (b)(1)(B) from prison. offenders under provisions of Rule 3.103 (a)(1)(A)
Issued: which allows a sending state to grant a travel permit to
Requester: 1-2006 an offender who was living in the receiving state at the
01.18.06 time of sentencing are not applicable to “offenders
Ohio released to supervision from prison.”

2005 Details At Issue Finding

Rule(s): 3.101 Can a receiving state The sending state determines if an offender is in
Opinion #: 8-2005 make a determination “Substantial Compliance”. If a sending state has
Issued: 11.21.05 that an offender is not taken no action on outstanding warrants or
Requester: Illinois in substantial pending charges the offender is considered to be
compliance in the in substantial compliance under the rule.
sending state, when
the offender commits a
crime in the receiving
state during the period
of investigation, or
when the offender has
an outstanding
warrant in the
receiving state?

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Rule(s): 3.101 (a) (2) Resident & Valid Plan Mandatory transfers require that the offender is
Opinion #: 7-2005 of Supervision: Under either a resident of the receiving or has resident
Issued: 09.29.05 Rule 3.101 (a) (2), family and employment in the receiving state. In
Requester: Arizona does the resident either situation under this rule all mandatory
criterion stand alone transfers are subject to the requirement that they
for purposes of be pursuant to a "valid plan of supervision".
acceptance? In other
words, can a receiving
state deny a transfer
request for an offender
who meets the
resident definition but
he is unemployed or
has no means of
support at the time of
the transfer request?

.
Rule(s): N/A Guidance from the HIPAA specifically authorizes disclosures of
Opinion #: HIPAA U.S. Department of protected health information to law enforcement
Issued: 08.26.05 Health & Human officials who need the information in order to
Requester: Pennsylvania Services, Office of Civil provide health care to the individual and for the
Rights as to the Health health and safety of the individual. [45 CFR
Insurance Portability 164.512 (k)(5)]. Under these provisions it
and Accountability Act appears that disclosures of health information
of 1996 (“HIPAA”) which are required to provide for treatment of
Coverage & adult offenders subject to the ICAOS would also
Exemptions for the be exempt from HIPAA requirements.
Interstate Compact for
Adult Offender
Supervision

.
Rule(s): 2.106 Opinion as to Even if a statute is labeled as deferred
Opinion #: 6-2005 Washington’s “deferred prosecution it may be the equivalent of a
Issued: 06.13.05 prosecution” statute. deferred sentence if a finding or plea of guilt has
Requester: Washington been entered and all that is left is for the Court to
impose sentence.

.
Rule(s): 3.105 & Interpretation of Pre A transfer request from a sending state must be
3.107 Parole Transfers provided up to 120 days in advance of the
Opinion #: requests in 3.105 offender’s planned prison release date. Rule
Issued: 5-2005 3.105 (b) requires the sending state to notify the
Requester: 06.13.05 receiving state of the offender’s date of release
Pennsylvania from prison. Section (b) of this rule is equally
clear that notification by the sending state must
be furnished to the receiving state if the date of
the offender’s release from prison is “withdrawn
or denied.”

.
Rule(s): 3.101 (c) & Are offenders who are An offender who is under supervision as that
3.101-2 not eligible to transfer term is defined by the Compact and the rules but
Opinion #: under the provisions of who is disqualified based on the nature of the
Issued: 4-2005 Rule 3.101 (a) or Rule offense or the failure to satisfy the eligibility
Requester: 05.05.05 2.105 of the Rules of criteria of Rule 3.101 (a) is nevertheless eligible
Oklahoma the Interstate Compact for transfer of supervision under Rule 3.101 (c)
for Adult Offender as a discretionary transfer.
Supervision permitted
to transfer under Rule
3.101 (c) as a
discretionary transfer?

.
Rule(s): All 1. Are the ICAOS 1. Interim rules for the administration of the new
Opinion #: 3-2005 rules, which became compact remained in effect until superseded by
Issued: 03.30.05 effective August 1, the new rules promulgated by the Commission.

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Requester: Maryland 2004, applicable to the
Final Probation Order 2. A subsequent order allowing the defendant
entered by the Court residing in Maryland to leave the state for a
on October 2, 2003? Florida program would trigger the new Rules of
ICAOS.
2. If the answer to the
first issue is “no,” and 3. If this subsequent order imposes a condition
the Court allows the or requirement, such as successful completion of
defendant, now a treatment program, and requires the facility to
present in Maryland, to monitor these conditions or any violations then
leave the State in this would constitute supervision as defined by
order to enroll in the the ICAOS rules.
Florida program, would
such action constitute
an order that would
trigger the new Rules
of the ICAOS?

3. If the answer to
either the first or
second issues is “yes,”
under the new rules, is
the defendant’s
probation supervised
within the meaning of
ICAOS?

.
Rule(s): 5.103 & Arresting & Detaining Out of State offenders can be arrested and
5.108 Compact Probationers detained for committing new crimes in the
Opinion #: and Parolees. receiving state pursuant to State Law or upon the
Issued: 2-2005 Authority of officers to request of the sending state pending retaking.
Requester: 03.04.05 arrest an out-of-state Out of state offenders can be arrested and
Florida offender sent to Florida detained for failure to comply with conditions of
under the ICAOS on probation if such a failure would have resulted in
probation violations. an arrest of a similar situated in-state offender.

.
Rule(s): 3.107 (a)(12) Clarification regarding Criminal History information obtained from NCIC
Opinion #: 1-2005 Rule 3.107 (a)(12) can and should be attached pursuant to compact
Issued: 01.06.05 requiring that a rules with the transfer request application.
Requester: Oregon sending state include a
criminal history as part
of the transfer packet.
Oregon uses the
Oregon Law
Enforcement Data
System (LEDS) which
queries NCIC which
provides an automated
CCH report. LEDS and
NCIC rules restrict us
from forwarding
automated CCHs to
any other criminal
justice agency. NCIC
policy is that once you
receive a response to
the CCH inquiry, the
information becomes
outdated. Therefore,
any information that is
sent as part of the
transfer application
packet is no longer
valid.

2004 Details At Issue Finding

Rule(s): 1.101 (Offender), Offenders sentenced under the Considering the literal language and plain

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 1.101 (Substantial Violent Predator Incapacitation Act meaning of the rules of the Interstate
Compliance), & who seek transfer CSL supervision Compact for Adult Offender Supervision, as
Opinion #: 3.101 outside the state of New Jersey. referenced herein, it is our opinion that
Issued: CSL offenders are subject to supervision
Requester:
9-2004 under the Interstate Compact for Adult
12.06.04 Offender Supervision and upon proper
New Jersey application and documentation of a valid
plan of supervision and verification of the
residency and employment criteria as
required under those rules should be
permitted to transfer to other states for
supervision under the Compact.

.
Rule(s): 1.101 (Offender), Oklahoma sex offender court The Oklahoma offender was clearly placed
1.101 ordered under control of Oklahoma under the supervision of the Oklahoma
Opinion #: (Supervision) DOC. Department of Corrections and conditions
Issued: were imposed upon the offender as part of
Requester:
8-2004 the suspended sentence that require
12.20.04 payment of restitution in addition to other
Georgia requirements which are conditions of
probation.

Both of the above criteria for supervision

under the compact have been satisfied and
it appears that any transfer of the offender
to another state must be under the terms
of the Compact and its’ rules.

.
Rule(s): 3.101 Rejection of Transfers Based on
Intent of 3.101 is that while the sending
Opinion #: 7-2004 Outstanding Warrants. May a state
state controls the decision of whether or
Issued: reject a transfer request from an
11.24.04 not to transfer an offender under the
Requester: offender, who is a resident of that
Wisconsin Compact, the receiving state has no
state and has verified
discretion as to whether or not to accept
employment, when there are
the case as long as the offender satisfies
warrants or pending charges in the
the criteria provided in this rule.
receiving state?”
If the sending state has taken no action on
these warrants and has not specifically
determined these warrants or pending charges to be a
basis for revocation proceedings, then the transfer
application should not be rejected only on this basis.

.
Rule(s): N/A Consider adoption of an The Compact statute does not provide for
Opinion #: MA Proposal emergency rule under Section an alternative means of compact
Issued: 08.11.04 2.109 of the Rules pertaining to membership and the previous “transition
Requester: Massachusetts the supervision of offenders from period” for the applicability of the rules
the Commonwealth of under the predecessor compact are now
Massachusetts. “null and void” based on the explicit
provisions of the compact statutes of the
member states.

.
Rule(s): 2.106 Clarification as to the eligibility for In determining the eligibility of an offender
Opinion #: 4-2004 transfer of supervision of an and the application of the ICAOS, one must
Issued: offender subject to “deferred look not at the legal definitions but rather
06.30.04
Requester: sentences” pursuant to Section the legal action taken by a court of
Florida
2.106 of the amended rule competent jurisdiction or paroling
adopted March 12, 2004. authorities. To find otherwise would lead to
disruptions in the smooth movement of
offenders, the equitable application of the
ICAOS to the states, and the uniform
application of the rules.

125
Rule(s): 2.106 Clarification as to the eligibility for In determining the eligibility of an offender
Opinion #: Legal Opinion transfer of supervision of an and the application of the ICAOS, one must
Issued: offender subject to “deferred look not at the legal definitions but rather
06.30.04
Requester: sentences” pursuant to Section the legal action taken by a court of
Florida
2.106 of the amended rule competent jurisdiction or paroling
adopted by the ICAOS at its authorities.
special meeting for the
Commission on March 12, 2004.

.
Rule(s): 2.110, 3.102, & Issuing travel permits to the Once an application has been made under
4-106 (Note: Receiving state during the the Compact an offender may not travel to
Transition Rule) investigation period. the Receiving State without the Receiving
Opinion #: 3-2004 State’s permission.
Issued:
04.15.04
Requester:
Utah

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