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Bench Book - 3.5.1 Post-Transfer Change of the Underlying Circumstances

As discussed, the transfer of supervision of an offender is mandatory in some circumstances. Receiving states are required to accept transfer if the offender is eligible under Rules 3.101 and 3.101-1. As discussed in Chapter 4 regarding return of offenders to a sending state, the sending state has sole discretion to retake unless conviction of the offender for a new felony or violent crime or the offender engages in behavior requiring retaking. See Rule 5.102 and 5.103. This presents a question: What happens if the offender neither commits a new felony or receives a new conviction for a violent crime and does not demonstrate a pattern of noncompliance, but the original circumstances leading to the transfer significantly change?

Under the ICAOS 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 the receiving state could demand the retaking of an offender based on a change of circumstances if such a condition was placed on the offender. For example, Rule 4.103 allows the receiving state to impose conditions post-transfer. Conceivably this could include a 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. However, any conditions imposed on an offender either at the time of acceptance or during the term of supervision must reasonably be related to the overall purposes of the Compact, which is to promote offender rehabilitation and public safety. The rule of “reasonableness” applies to mandatory and discretionary transfers without distinction.



Click terms below to reveal definitions used in this rule.

Behavior Requiring Retaking – means an act or pattern of non-compliance with conditions of supervision that could not be successfully addressed through the use of documented corrective action or graduated responses and would result in a request for revocation of supervision in the receiving state.

Retaking – means the act of a sending state in physically removing an offender, or causing to have an offender removed, from a receiving state.

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.