A key objective of the ICAOS is to facilitate the effective transfer of supervised individuals between states and to manage their return to the sending state through mechanisms other than formal extradition. Consequently, a supervised individual’s status as a convicted person significantly impacts the process they are entitled to under both the ICAOS and constitutional due process principles.
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). 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 (Cal. 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). A supervised individual 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).
Probation, parole, and conditional pardon are privileges granted subject to specified conditions. Accordingly, when a supervised individual fails to comply with those conditions, revocation does not imply an inherent right to continued release but instead reflects the withdrawal of a conditional liberty interest and returns the individual to the status held prior to the grant of release. E.g., 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 N.W.2d 753 (Minn. 1943); Johnson v. United States, 529 U.S. 694 (2000). Some courts have ruled that probation, parole, or conditional pardon functions like a contract between the supervised individual and the state. The individual can choose to accept these conditions or reject them and serve the full sentence. By choosing to accept probation, parole, or conditional pardon, the individual agrees to abide by its terms. E.g., Gulley v. Apple, 210 S.W.2d 514 (Ark 1948); Ex parte Tenner, 128 P.2d 338 (Cal. 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 (1948). Regardless of the underlying theory – grace, contract, or both – the general argument is that probation is a privilege so that if the supervised individual refuses to comply with the conditions, a state can deny or revoke it. E.g., 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. E.g., People v. Gordon, 672 N.Y.S.2d 631 (N.Y. Sup. Ct. 1998). Importantly, although a supervised individual is not entitled to supervised release, the individual 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). Morrissey and Gagnon are discussed below in the sections on probable cause hearings.
Over time, courts found that the uniform application of procedures prescribed by the 1937 ICPP did not constitute a violation of equal protection under the Fourteenth Amendment. People ex rel. Rankin v Ruthazer, 107 N.E.2d 458, 460-61 (N.Y. 1952); Ex parte Tenner, 128 P.2d 338 (Cal. 1942) (because the ICPP 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); Williams v. Wisconsin, 336 F.3d 576 (7th Cir. 2003) (while supervised individuals 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, 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, 848 (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.” The Court further reasoned 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.
However, a person’s status as an out-of-state supervised individual does not mean that person possesses no constitutional rights. Supervised individuals 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 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 State v. Eldert, 125 A.3d 139 (Vt. 2015), the sending state’s court found that even though the Vermont probation officer received documents from the receiving state through the Interstate Compact Offender Tracking System (ICOTS) related to a new crime in the receiving state, the documents 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.