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Bench Book - 4.2.1 Waiver of Extradition under the ICAOS

Principal among the provisions of the ICAOS are the waiver of formal extradition requirements for returning offenders who violate the terms and condition of their supervision. The ICAOS specifically provides that:

The Compacting states recognize that there is no “right” of any offender to live in another state and that duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any offender under supervision subject to the provisions of this Compact and By-laws and Rules promulgated hereunder.

See, Purposes, Art. I. Additionally, pursuant to Rule 3.109, an offender is required to waive extradition as a condition of transferring supervision. That rule provides:

(a) An offender applying for interstate supervision shall execute, at the time of application for transfer, a waiver of extradition from any state to which the offender may abscond while under supervision in the receiving state; and,

(b) States that are parties to this Compact waive all legal requirements to extradition of offenders who are fugitives from justice.

It is important to note that, subject to certain requirements, a sending state has authority at all times to enter a receiving state and retake an offender. See discussion, infra, at §4.4 concerning hearing requirements. The waiver of extradition outlined in Rule 3.109 applies to any member state where the offender might be located. Under Rule 3.109, authorities are not limited in their pursuit of fugitives or in returning a fugitive to the sending state. However, authorities may be required to present evidence that the fugitive is the person sought and that they are acting with lawful authority, e.g., they are lawful agent of the state enforcing a properly issued warrant. See Ogden v. Klundt, 550 P.2d 36, 39 (Wash. Ct. App. 1976).

Although neither Article I of the ICAOS or Rule 3.109 have been the subject of judicial interpretation, challenges to the constitutionality of similar waiver provisions contained in past Compacts have not been successful. Courts have held that an interstate Compact authorized by Congress relating to interstate apprehension and retaking of offenders without formalities and without compliance with extradition laws does not violate due process of law. See Gulley v. Apple, 210 S.W.2d 514 (Ark. 1948); Woods v. State, 87 So.2d 633 (Ala. 1956); Ex parte Tenner, 128 P.2d 338 (Cal. 1942); Louisiana v. Aronson, 252 A.2d 733 (N.J. Super. Ct. App. Div. 1969); People ex rel. Rankin v. Ruthazer, 107 N.E.2d 458 (N.Y.1952); Pierce v. Smith, 195 P.2d 112 (Wash. 1948), cert. denied, 335 U.S. 834. Even in the absence of a written waiver by the offender, extradition is not available, as the interstate Compact operates to waive any extradition rights. See People v. Bynul, 524 N.Y.S.2d 321 (N.Y. Crim. Ct.1987). Habeas corpus is generally unavailable to offenders being held pending return to the sending state under an interstate Compact. See Stone v. Robinson, 69 So. 2d 206 (Miss. 1954) (prisoner not in Mississippi as a matter of right but as a matter of grace under the clemency extended by the Louisiana parole board; prisoner subject to being retaken on further action by the parole board); State ex rel. Niederer v. Cady, 240 N.W.2d 626 (Wis. 1974) (constitutional rights of an offender with supervision transferred under the Compact are not violated by denial of an extradition hearing, as the offender is not an absconder but is in another state by permission and therefore subject to the retaking provisions of the Compact); Cook v. Kern, 330 F.2d 1003 (5th Cir. 1964) (whatever benefits the offender enjoys under the Texas Extradition Statute, he has not been deprived of a federally protected right and therefore a writ of habeas corpus is properly denied; even assuming that involvement of a constitutional right, the parole agreement constitutes a sufficient waiver.) However, a person seeking relief from incarceration imposed as the result of allegedly invalid proceedings under the ICPP may utilize the remedy of habeas corpus to challenge that incarceration. People v. Velarde, 739 P.2d 845 (Colo. 1987). Other jurisdictions have also recognized the availability of this remedy, albeit for limited issues, to offenders seeking to challenge the nature and result of proceedings conducted pursuant to provisions equivalent to those of the ICPP. See, e.g., United States ex rel. Simmons v. Lohman, 228 F.2d 824 (7th Cir. 1955); Petition of Mathews, 247 N.E.2d 791 (Ohio Ct. App. 1969); Ex Parte Cantrell, 362 S.W.2d 115 (Tex. 1962). The availability of habeas corpus to a detained offender may also be affected by recent changes to the ICAOS rules imposing time limits on probable cause determinations. See Rule 5.108(e) & (f).



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.

Extradition – means the return of a fugitive to a state in which the offender is accused, or has been convicted of, committing a criminal offense, by order of the governor of the state to which the fugitive has fled to evade justice or escape prosecution. 

Probable Cause Hearing – a hearing in compliance with the decisions of the U.S. Supreme Court, conducted on behalf of an offender accused of violating the terms or conditions of the offender‘s parole or probation.

Waiver – means the voluntary relinquishment, in writing, of a known constitutional right or other right, claim or privilege by an offender.