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Interstate Commission for Adult Offender Supervision | Ensuring Public Safety for the 21st Century

Bench Book - 4.1 Status of Offenders Subject to ICAOS

One of the principal purposes of the ICAOS is to ensure the effective transfer of offenders to other states and to oversee the return of offenders 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.

The U.S. Supreme Court has held that the granting of probation or parole is a privilege, not a right guaranteed by the Constitution. Probation or parole 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).

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, 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. Regardless of the underlying theory – grace, contract, or both – the general argument is that probation is a privilege so that if the offender refuses to comply with 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). Importantly, although an offender is not entitled to supervised release, the 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).

Over time, courts found that the uniform application of procedures prescribed by the interstate Compact did not constitute a violation of Fourteenth Amendment equal protection. 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. If the convict was a nonresident and the law would not permit his parole outside of the state, these reasons would become impotent. The court concluded that the statutory distinction between resident and nonresident convicts did not deprive anyone of advantage. Cf., Williams v. Wisconsin, 336 F.3d 576 (7th Cir. 2003) (while offenders have a right to marry, a state can impose reasonable travel restrictions, which have the effect of incidental interference with the right to marry; such restrictions did not give rise to a constitutional claim if there was justification for the interference).

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).

A person’s status as an out-of-state offender does not mean that 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 has determined that equal protection rights would be violated if a “dead time” statute is interpreted in such a way that a person paroled out-of-state is not credited with 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 the Browning 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 part of the time to be served. However, the court also concluded that a prisoner who was paroled out of state and subsequently violated parole by committing an offense in another state, did not have his dead time end until declared available by the other state for return to Michigan. The court stated that the “dead time” statute, if interpreted to operate in this manner, not only violated the requirement that consecutive sentences be based upon express statutory provisions, but also invidiously sub-classified an outof- state parolee solely on the basis of geography and constituted a violation of equal protection guaranties.

In State v. Eldert, 125 A.3d 139, (Vt. 2015) the sending state’s court found that even though the Vermont probation officer received documents related to the commission of a new crime in the receiving state from the Delaware probation officer, they did not have sufficient indicia of reliability to establish “good cause” to justify denying defendant his right to confront his Delaware probation officer. The documents were unsigned, unsworn and undated and did not contain adequate information or detail regarding the circumstances of the defendant’s admissions to violations, specifically to whom and when they were made, and when the offending behavior took place.