Transfers fall into one of two categories, (1) mandatory acceptance and (2) discretionary acceptance. The authority to place an offender outside the state rests exclusively with the sending state. See Rule 3.101. The offender has no constitutional right to transfer their supervision to another state, even if the offender is otherwise eligible. Therefore, Rule 3.101 should not be interpreted as creating any constitutionally protected interest to relocate on behalf of an offender. Rather, Rule 3.101 creates an obligation on a receiving state to accept an offender for supervision once the sending state has made a determination to transfer supervision. The sending state’s denial of the transfer of supervision appears absolute and is entitled to deference by courts. See Com. v. Mowry, 921 N.E.2d 565 (Mass. App. 2010); also Strong v. Kansas Parole Bd., 115 P.3d 794 (Kan. Ct. App. 2005).

If a sending state decides to transfer supervision, and the offender has three months or more or an indefinite period of supervision remaining, the receiving state must accept the transfer if the offender:

• Is in substantial compliance with a valid plan of supervision; and,
• Is a resident of the receiving state; or,
• Has resident family in the receiving state who has indicated (1) a willingness to assist in satisfying the plan of supervision, and (2) the offender can obtain employment or has a means of support.

The sending state is responsible for verifying that the offender has a valid plan of supervision, means of support and is in substantial compliance with their supervision. If these obligations are not met, the sending state may refuse to allow an offender to transfer even if they meet the residency requirements.

The intent of adding “substantial compliance” to the eligibility criteria was to prevent the transfer offenders who are not in compliance with the terms and conditions of their supervision in the sending state. However, pending charges in the receiving state are irrelevant to the transfer decision when the issuing authority takes no action. Accordingly, if the sending state does not take any action on these warrants or determines that the pending charges are not a basis for revocation proceedings, the transfer application should not be rejected on this basis alone. Rejecting transfers solely on this basis unjustifiably prohibits offenders, who are residents of the receiving state, from transferring supervision. See ICAOS Advisory Opinion 7-2004.

A receiving state can accept supervision of an offender who does not meet the mandatory acceptance criteria. However, acceptance of supervision is discretionary with the receiving state under circumstances other than those listed above. For example, an offender who is ineligible for mandatory transfer due to the nature of the offense or the offender’s failure to meet residency and employment requirements may be transferred under the discretionary provisions of the rules. See ICAOS Advisory Opinion 4-2005. Under such circumstances, transfer may be warranted when in the opinion of both the sending and receiving states such a transfer is in the interests of justice and rehabilitation. It must be emphasized, however, that a discretionary transfer requires the consent of both the sending and receiving states. The failure to obtain such consent prohibits the transfer of supervision.

The sending state must submit a transfer request along with all relevant information necessary for the receiving state to investigate and accept the transfer. Rule 3.107 sets out the information that must be provided to a receiving state prior to the offender’s transfer.

With limited exceptions, a sending state shall not allow an offender to relocate without a receiving state’s explicit acceptance. See Rule 2.110. Allowing the offender to relocate prior to acceptance may trigger two events:

(1) the sending state shall order the offender to return to the sending state, and

(2) the receiving state can reject the placement, requiring a new transfer request.

See ICAOS Advisory Opinion 9-2006. Practically, this means that no court or paroling authority may authorize an offender to relocate before acceptance by the receiving state, unless the transfer of supervision is accomplished pursuant to expedited reporting instructions under Rule 3.106 or Rules 3.101-1 and 3.103. See discussion infra § 3.3.1.1.