This guide outlines due process procedures for retaking under the Interstate Compact for Adult Offender Supervision (ICAOS). This guide is not an exhaustive legal review given the unique nature of violation cases. Each state may have procedural variations requiring consultation with local legal counsel to ensure compliance with state laws and fair application of due process. However, this guide will assist hearing officers with the complex issues that may arise and the critical steps that must be followed to ensure a supervised individual is afforded appropriate due process.

Hearing officers, legal counsel, and supervised individuals must understand the differences between "retaking" and "revocation." Retaking is the act of a sending state physically removing a supervised individual from a receiving state while revocation terminates community supervision.  The term "probable cause hearing" suggests supervised individuals subject to retaking must be granted the same comprehensive scope of probable cause determinations as mandated by the U.S. Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972) (due process requires a hearing before parole revoked) and Gagnon v. Scarpelli, 411 U.S. 778 (1973) (due process requires a hearing before probation revoked). 

Courts do not universally agree on the appropriate process, with some arguing that a “probable cause hearing” in the retaking process is not remarkably distinguishable from the revocation process. Hence, this guide addresses several considerations to assist states in understanding the intent behind Rule 5.108.  See the following applicable case law:

• When distance and geography inhibit a supervised individual’s ability to present witnesses and exculpatory evidence. See e.g., California v. Crump, 433 A.2d 791 (N.J. Super. Ct. App. Div. 1981).
• Whether the officers from the sending state are acting within the scope of their authority and whether the supervised individual is the proper person to be retaken. See e.g., Ogden v. Klundt, 550 P.2d 36, 39 (Wash. Ct. App. 1976).  
• Supervised individuals who are not detained may not require preliminary hearings under Morrissey and Gagnon because no liberty interest is at stake. See Smith v. Snodgrass, et al. 112 Fed. Appx. 695 (10th Cir. 2004).
• Failure to conduct a probable cause hearing in the receiving state may prevent the use of those violations as grounds for revocation upon return to the sending state. See Fisher v. Crist, 594 P.2d 1140 (Mont. 1979). 

Despite the differences between jurisdictions, fundamental due process considerations do apply to the ICAOS retaking process. Courts have recognized that conditions can be attached to supervision transfers under the compact. Violations of these conditions can serve as grounds for the supervised individual’s return and ultimate revocation of their community supervision. Therefore, a hearing near the time and location where the violations occurred is required to ensure due process is upheld. While numerous courts have ruled that convicted individuals do not inherently possess the right to relocate from one state to another, they have also acknowledged that once relocation is granted, states should not lightly or arbitrarily revoke it.