Those not eligible for transfer of supervision under the ICAOS and its rules include:
Supervised individuals on furlough or work release (Rule 2.107);
Misdemeanants not subject to the qualifications contained in Rule 2.105;
Non-criminals such as those convicted of infractions or subject to a civil penalty system, See Commonwealth v. Amerson, 706 S.E.2d 879, 884-85 (Va. 2011) (offenders convicted under Sexually Violent Predators Act (SVPA) ineligible for transfer under ICAOS because the act is civil, not criminal); and
Juveniles who are not deemed “adults” for purposes of prosecution.
A supervised individual not eligible to have their supervision transferred to another state is not restricted in their travel, except as otherwise ordered by the sentencing court or by a state’s statutory and administrative framework. See Sanchez v. N.J. State Parole Bd., 845 A.2d 687, 692 (N.J. Super. Ct. App. Div. 2004) (New York cannot have it both ways. If CSL defendants do not fall within the purview of ICAOS, then New Jersey has no obligation to prevent them from moving to New York. If New York is willing to permit the change of residency, assuming the other criteria of ICAOS are met, we expect that New Jersey will cooperate fully to the extent and in the manner allowed by the laws of this state and the rules of ICAOS.”)
Supervised individuals with three months or less of supervision and not subject to some form of community supervision are generally free to travel. This is in large measure because the duration of supervision does not warrant further consideration in the receiving state or because the nature of the offense is such that a court did not see continuing supervision as a necessary element of the sentence. For example, the Compact does not cover an individual convicted of a low-level misdemeanor offense and subject only to “bench probation” with no reporting requirements or conditions other than monetary conditions, the only requirement of which is to “go and commit no further offense.” However, a court should not attempt to circumvent the Compact by placing a supervised individual on “unsupervised” status, particularly an individual who poses a public safety risk. Such an action would undermine the purpose of the Compact and could encourage other states to adopt similar practices, compromising the Compact’s underlying principles. Placing a supervised individual on “bench probation” to circumvent the ICAOS poses a significant risk of additional harm to the community, especially if the individual is high risk.
PRACTICE NOTE