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Bench Book - 4.8 Bail Pending Return

An offender subject to retaking proceedings has no right to bail. Rule 5.111 specifically prohibits any court or paroling authority in any state to admit an offender to bail pending completion of the retaking process, individual state law to the contrary notwithstanding. Since the ICAOS mandates that the rules of the Commission must be afforded standing as statutory law in every member state, the “no bail” provision of Rule 5.111 has the same standing as if the rule were a statutory law promulgated by that state’s legislature. See Article V.

The “no bail” provision in Rule 5.111 is not novel; states have previously recognized that under the ICPP officials in a receiving state were bound by no bail determinations made by officials in a sending state. See, e.g., State ex rel. Ohio Adult Parole Authority v. Coniglio, 610 N.E.2d 1196 (Ohio Ct. App. 1993) (probationer transferred from Pennsylvania could not be released on personal recognizance as Ohio authorities were bound under the ICPP by Pennsylvania decision as to consideration of probationer for release). States have recognized the propriety of the “no bail” requirements associated with ICPP, even where there was no expressed prohibition. In State v. Hill, 334 N.W.2d 746 (Iowa 1981), the state supreme court held that Iowa authorities were agents of Nevada, the sending state, and that they could hold the parolee in their custody pending his return to Nevada. The trial court’s decision to admit the offender to bail was reversed notwithstanding a prohibition against such action. In Ex parte Womack, 455 S.W.2d 288 (Tex. Crim. App. 1970), the court found no error in denying bail to an offender subject to retaking as the Compact made no provision for bail. And in Ogden v. Klundt, 550 P.2d 36, 39 (Wash. Ct. App. 1976), the court held that:

Absent express statutory authorization, the courts of Washington are without power to release on bail or bond a parolee arrested and held in custody for violating his parole. The Uniform Act for Out-of-State Supervision provides that a parole violator shall be held, and makes no provision for bail or bond. The person on parole remains in constructive custody until his sentence expires. Restated, his liberty is an extension of his confinement under final judgment and sentence. Whether the convicted person is in actual custody within the prison walls or in constructive custody within the prison of his parole, the rule is unchanging; there is simply no right to release on bail or bond from prison.

See also, Aguilera v. California Department of Corrections, 247 Cal.App.2d 150 (1966); People ex rel. Tucker v. Kotsos, 368 N.E.2d 903 (Ill. 1977); People ex rel. Calloway v. Skinner, 300 N.E.2d 716 (N.Y. 1973); Hardy v. Warden of Queens House of Detention for Men, 288 N.Y.S.2d 541 (N.Y. Sup. 1968); January v. Porter, 453 P.2d 876 (Wash. 1969); Gaertner v. State, 150 N.W.2d 370 (Wis. 1967). However, an offender cannot be held indefinitely. See Windsor v. Turner, 428 P.2d 740 (Okla. Crim. App. 1967) (offender on parole from New Mexico who committed new offenses in Oklahoma could not be held indefinitely under Compact and was therefore entitled to writ of habeas corpus when trial in Oklahoma would not take place for a year and New Mexico authorities failed to issue a warrant for his return).

PRACTICE NOTE: The ICAOS and its rules impose upon the member states and its courts an absolute prohibition against admitting an offender to bail pending retaking.



Click terms below to reveal definitions used in this rule.

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.

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