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Bench Book - 4.4 Arrest and Detention of Offenders in the Receiving State

The courts have defined the relationship between sending state and receiving state officials as an agency relationship. Courts recognize that in supervising out-of-state offenders the receiving state acts on behalf of and as an agent of the sending state. See State v. Hill, 334 N.W.2d 746, 748 (Iowa 1983) (trial court committed an error in admitting an out-of-state offender to bail as the status of the offender was not controlled by the domestic law of Iowa, but rather by the Interstate Compact for Probation and Parole and the determinations of sending state authorities); State ex rel.Ohio Adult Parole Authority v. Coniglio, 610 N.E.2d 1196, 1198 (Ohio Ct. App. 1993) (“For purposes of determining appellee’s status in the present case, we believe that the Ohio authorities should be considered as agents of Pennsylvania, the sending state. As such, the Ohio authorities are bound by the decision of Pennsylvania with respect to whether the apprehended probationer should be considered for release on bond and the courts of Ohio should recognize that fact.”); See also New York v. Orsino, 27 Misc.3d 1218(A), 2010 WL 1797026 (N.Y.Sup., April 26, 2010)(“In several cases both appellate and lower courts have held that the power of the receiving state, in this case Connecticut, to conduct a hearing is delegated to it pursuant to the Compact for Adult Supervision.”); People ex rel Ortiz v. Johnson, 122 Misc.2d 816, Sup. Ct.1984).

In supervising out-of-state offenders, authorities in a receiving state do not act exclusively as authorities under the domestic law of that state, but also act as agents of the sending state and, to a certain degree, are controlled by the lawful decisions of sending state officials. Under the terms of the Compact, the receiving state “will assume the duties of visitation and supervision over probationers or parolees of any sending state.” While the receiving state assumes the obligation to monitor probationers, the sending state does not abdicate its responsibility. See Johnson v. State, 957 N.E.2d 660 (Ind. App. 2011); Keeney v. Caruthers, 861 N.E.2d 25 (Ind. App. 2007); Scott v. Virginia, 676 S.E.2d 343, 348 (Va. App. 2009).

The arrest of an out-of-state offender may occur under one of three broad categories. First, an out-of-state offender is clearly subject to arrest and detention for committing a new offense in the receiving state. Rules 5.101, 5.101-1 and 5.102 recognize that an offender may be held in a receiving state for the commission of a crime and is not subject to retaking unless the receiving state consents, the term of incarceration on the new crime is completed, or the offender has been placed on probation. The authority to actually incarcerate an offender necessarily carries the implied authority to arrest an offender for committing an offense.

Second, an out-of-state offender is subject to arrest and detention upon request of the sending state based on its intent to retake the offender. Such a retaking can occur based on a demand by the receiving state or because the sending state intends to revoke probation. Under this circumstance, and notification to retake the offender, the sending state must issue a warrant and file a detainer with the holding facility when the offender is in custody. Courts have routinely recognized the right of a receiving state to arrest and detain an offender based on such a request from a sending state. See e.g., State ex rel. Ohio Adult Parole Authority v. Coniglio, 610 N.E.2d 1196 (Ohio Ct. App. 1993) (offender cannot be admitted to bail pending retaking); Crady v. Cranfill, 371 S.W.2d 640 (Ky. Ct. App. 1963) (detention of offenders is proper as only courts in the sending state can determine the status of their jurisdiction over the offender).

PRACTICE NOTE: An offender arrested and detained for violating the conditions of supervision may have certain due process rights. If the sending state intends to use the offender’s violations in the receiving state as the basis for possibly revoking the offender’s conditioned release, both U.S. Supreme Court decisions and rules of the Commission require that the sending and receiving states comply with various hearing requirements. See discussion, beginning at Section 4.7.

The third circumstance in which officials in the receiving state can arrest an out-of-state offender is for violations that occur physically in the receiving state. This third circumstance may prove to be the most confusing and difficult, given the offender may or may not face charges for a new offense in the receiving state, and the sending state may or may not initiate retaking proceedings. Nevertheless, courts have recognized that out-of-state offenders are subject to arrest for violations that occur in the receiving state. See, e.g., Kaczmarek v. Longsworth, 107 F.3d 870 (Table), 1997 WL 76190 (6th Cir. 1997) (out-of-state probationer could not show that he was entitled to be released from detention under the standards set by Ohio for its own probationers and parolees) (Emphasis added); in accord, Perry v. Pennsylvania, 2008 WL 2543119 (W.D. Pa. 2008)

The ICAOS rules clarify the arrest powers of state officials supervising an out-of-state offender. Rule 4.109-1 provides that, “An offender in violation of the conditions of supervision may be taken into custody or continued in custody in the receiving state.” This rule acts as statutory authorization in the receiving state notwithstanding domestic laws to the contrary. See, Art. V (Commission to adopt rules that “shall have the effect of statutory law” and are binding on the states). Rule 4.109-1 effectively adopts and codifies the Commission’s prior stance on arrest powers as set out in ICAOS Advisory Opinion 2-2005. See also Perry v. Pennsylvania, supra. (giving ‘deference’ to this advisory opinion and holding that the term “supervision” as defined by ICAOS “as a matter of statutory construction . . . included the ability to arrest and to detain Plaintiff.”)

PRACTICE NOTE: Notwithstanding Rule 4.109-1, state officials should determine whether their state laws authorize the arrest of a Compact offender who is not already in custody, including the need for a warrant. Rule 4.109-1 gives receiving state officials the right to arrest out-of-state offenders to the extent permitted by the laws of the receiving state.

In addition to specific rule authorization, public policy justifies the arrest of an out-of-state offender, notwithstanding the domestic law of the receiving state. The purpose of the ICAOS is not simply to regulate the movement of adult offenders for the sake of regulation. Rather, regulating the movement of adult offenders fulfills the critical purposes of promoting public safety and protecting the rights of crime victims. See INTERSTATE COMPACT FOR ADULT OFFENDER SUPERVISION, ART. I. All activities of the Commission and the member states endeavor to promote these two overriding purposes. Member states, their courts and criminal justice agencies must take all necessary action to “effectuate the Compact’s purposes and intent.” See INTERSTATE COMPACT FOR ADULT OFFENDER SUPERVISION, art. IX, § A.

References

Definitions

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.

By-Laws – means those by-laws established by the Interstate Commission for Adult Offender Supervision for its governance, or for directing or controlling the Interstate Commission’s actions or conduct.

Detainer – means an order to hold an offender in custody.

Advisory Opinions