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
All Advisory Opinions At-A-Glance
Guidance Concerning Out-of-State Travel for Sex Offenders
Whether a receiving state’s compact administrator may prohibit an offender, whose supervision was transferred to the receiving state pursuant to ICAOS, from traveling outside of the receiving state while under supervision in the receiving state? Whether the sentencing court in the sending state retains the authority, in light of ICAOS and its attendant rules and regulations, to authorize an offender’s out-of-state travel for work purposes once his or her supervision has been transferred to another state pursuant to ICAOS?
Since ICAOS Rule 4.101 requires that a receiving state shall supervise a compact offender “consistent with the supervision of similar offenders sentenced in the receiving state” then compact offenders should be subject to the same exception as offenders sentenced in the state.
The sentencing court in the sending state does not surrender its’ jurisdiction over an offender whose supervision is transferred to another state. The sending state court continues to exercise some authority over a compact offender for the duration of the period of supervision.
Authority to Issue Travel Permits
Authority of judges and probation or parole officers to permit certain offenders to travel outside of Texas who, by reason of the type of crime committed or the duration of the travel, are not eligible for transfer of supervision under the provisions of the Interstate Compact for Adult Offender Supervision (“ICAOS”) or ICAOS administrative rules. Whether offenders whose offenses otherwise qualify for transfer of supervision under the provisions of ICAOS rules may be permitted to travel out of state for a period of forty-five (45) days or less?
Offenders not subject to ICAOS may, depending on the terms and conditions of their sentences, be permitted to move across state lines without prior approval from the receiving state and neither judges nor probation officers are prohibited by ICAOS from allowing such offenders to travel.
An offender who is not relocating but simply leaving the state (for a period not exceeding 45 consecutive days) for routine business travel, vacations, visits to family, medical appointments, and other such out-of-state travel normally undertaken in the activities of everyday life is not subject to the ICAOS rules concerning a transfer of supervision, other than notification requirements in victim sensitive cases, even if otherwise eligible to transfer supervision under the Compact.
1. Whether a sending state is required to provide details of the sex offense in a request for reporting instructions for sex offenders living in the receiving state at the time of sentencing, pursuant to Rule 3.101-3 (c)(1).
2. Whether a receiving state can deny a transfer request of an offender where the sending state has imposed a condition on the offender that the receiving state is unable to enforce.
3. Whether the provisions of the Compact and its rules supersede conflicting state laws.
The provisions of Rule 3.103(e) (1) and (2) (governing offenders in the receiving state at time of sentencing) are premised on the proposition that the offender’s continued lawful presence in the receiving state under the compact ultimately depends upon the determination of the offender’s eligibility for transfer.
Under ICAOS Rule 4.103, the addition of a special condition which the receiving state is unable to enforce only requires that the receiving state notify the sending state of its inability to enforce a special condition at the time the transfer request is made [ICAOS Rule 4.103 (d)].
It is unquestionably the case that the provisions of the Compact and its rules, by virtue of congressional consent under Article I, Section 10, Clause 3 of the federal Constitution have been ‘transformed into federal law’ and supersede conflicting state laws.
Denial of Reporting Instructions
Where an investigation by the receiving state reveals that a transfer request for an offender 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.
Offenders in Federal Housing
A receiving state is not authorized to deny a transfer of an offender based solely on the fact that the offender 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.
Interpretation of “physical harm”.
In summary, a person charged and adjudicated on a misdemeanor offense of assault would be subject to the compact pursuant to Rule 2.105(a)(1), assuming all 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.
Clarification on Offenders being charged fee by sending state after transferred to receiving state.
The fee imposed annually under Wisconsin law does not appear to be for the purpose of the supervision of such offenders by parole or probation officers and instead is for the purpose of defraying the cost of sex offender 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.
Clarification on offenders who are undocumented immigrants.
1. 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.
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 event that 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.