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

Issued:
Requester:
At Issue:

Interpretation of “physical harm”.

Finding:

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.

Issued:
Requester:
At Issue:

Obligation of the sending state when the offender no longer meets requirements of Rule 3.101.

Finding:

Under the current rules there is no such retaking requirement which is provided either explicitly or by implication or reasonable inference. In fact, under Rules 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 committed three of more “significant violations” which establish a pattern of “noncompliance of the conditions of supervision.”

Issued:
Requester:
At Issue:

Clarification on Offenders being charged fee by sending state after transferred to receiving state.

Finding:

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.

Issued:
Requester:
At Issue:

Clarification on offenders who are undocumented immigrants.

Finding:

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.

Issued:
Requester:
At Issue:

Clarification on Retaking by the sending state.

Finding:

Neither ICAOS Rule 5.101(b) nor any other current rule requires that a warrant be issued by the sending state when an offender absconds. While Rule 5.101 (a) provides that a sending state may retake any compact offender at its sole discretion, except as required under Rule 5.102 and 5.103, neither the time frame nor the means by which the retaking of the offender shall occur are provided.

Issued:
Requester:
At Issue:

Closing supervision by the receiving state.

Finding:

A Receiving State Closing supervision interest under Rule 4.112, does not preclude the jurisdiction of the Compact except for cases where the original term of 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.

Issued:
Requester:
At Issue:

Offenders transferred under the compact prior to August 1, 2004.

Finding:

Offenders transferred prior to the adoption of ICAOS rules August 1, 2004 may be retaken under the current rules if one of the significant violations occurred after August 1, 2004.

Issued:
Requester:
At Issue:

An offender being in the receiving state prior to investigation as a valid reason for rejection.

Finding:

States which allow eligible offenders to transfer prior to the receiving state having an opportunity to investigate are in violation of the Compact under Rule 3.102 (b) 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.