Bench Book - 3.2.1.1 Offenders Covered by the ICAOS

According the Commission’s definition of “offender,” the Commission can regulate the full range of adult offenders. An adult offender does not have to be on a traditionally applied formal “probation” or “parole” status to qualify for transfer and supervision under the ICAOS. 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.

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 conviction of driving while impaired by drugs or alcohol; or (See ICAOS Advisory Opinion 7-2006 for clarification);
  • A sex offense requiring the offender to register as a sex offender under the laws of the sending state. (See Rule 2.105); and,
• 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.

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, 884-85 (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.