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Bench Book - 4.3 Retaking

As previously noted, Article I of ICAOS authorizes officers of a sending state to enter a receiving state, or a state to which an offender has absconded, for purposes of retaking an offender. With limited exceptions, the decision to retake an offender rests solely in the discretion of the sending state. See Rule 5.101(a). However, if an offender incurs charges for a subsequent offense in the receiving state, the sending state may not retake the offender without prior consent from authorities in the receiving state, until dismissal of the criminal charges, satisfaction of the sentence occurs or the offender obtains release on supervision. See Rule 5.101-1.

Several exceptions limit the sending state’s discretion for retaking an offender. These exceptions, invoked by a receiving state, require retaking by the sending state when supervision is no longer feasible. First, a sending state must retake an offender upon request of the receiving state or subsequent receiving state and conviction for a felony offense or violent crime. See Rule 1.101 and Rule 5.102. The sending state can retake only after dismissal of charges, satisfaction of sentence occurs, the offender obtains a release to supervision for the subsequent offense, or unless the sending and receiving states mutually agree to the retaking. Id. Second, a sending state is required to retake an offender upon request of the receiving state and a showing that the offender has engaged in behavior requiring retaking. See Rule 1.101 and Rule 5.103. Furthermore, only the receiving state can invoke Rule 5.103, and the applicability of this rule assumes that the violating behavior occurred in the receiving state. It is important to note that the gravity of the violating act or pattern of non-compliance is measured by the standards of the receiving state. Therefore, a sending state is required to retake an offender even if the violating act or pattern of non-compliant behavior would not result in revocation under the standards of the sending state. So long as the receiving state documents the violation(s) showing the behavior could not be successfully addressed through corrective action or graduated responses, and it meets the revocation standards of the receiving state, the sending state is obligated to retake. This may have significant implications for the need to conduct a retaking or probable cause hearing in the receiving state as required by Rule 5.108.

PRACTICE NOTE: The gravity of a violating act or pattern of non-compliance is measured by the standards of the receiving state. A sending state may be required to retake an offender even if the violation(s) would not have been given the same weight by that state.

Under the Compact, officers of the sending state may enter the receiving state or any other state to which the offender has absconded, in order to retake the offender. As the Compact and Rule 3.109 waive formal extradition proceedings, officers need only establish their authority and the identity of the offender. See Rule 5.107(a) & (b). Due process requirements, such as the requirement for a probable cause hearing, may also apply if the violations are to form the basis for revocation proceedings in the sending state. See Rule 5.108(a). Once sending state officers establish authority and meet due process requirements, authorities in a receiving state may not prevent, interfere with or otherwise hinder the transportation of the offender back to the sending state. See Rule 5.109. Interference by court officials would constitute a violation of the ICAOS and its rules.

References

Definitions

Click terms below to reveal definitions used in this rule.

Abscond – means to be absent from the offender’s approved place of residence and employment; and failing to comply with reporting requirements;

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.

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.

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

Violent Crime – means any crime involving the unlawful exertion of physical force with the intent to cause injury or physical harm to a person; or an offense in which a person has incurred direct or threatened physical or psychological harm as defined by the criminal code of the state in which the crime occurred; or the use of a deadly weapon in the commission of a crime; or any sex offense requiring registration.