In addition to traditional cases where an offender is formally adjudicated and placed on supervision, the ICAOS also applies in so-called “suspended sentencing,” “suspended adjudication,” and “deferred sentencing” contexts. Rule 2.106 provides that “Offenders subject to deferred sentences are eligible to transfer supervision under the same eligibility requirements, terms and conditions applicable to all offenders under this Compact. Persons subject to supervision pursuant to a pre-trial intervention program, bail, or similar program are not eligible for transfer under the terms and conditions of this Compact.” In interpreting this rule, the Commission has issued an opinion advising as follows:

In the case of a “deferred sentence,” Rule 2.106 would apply if the court lawfully entered a conviction on its records even if it suspended the imposition of a final sentence and subjected the offender to a program of conditional release. The rule would also apply if the defendant entered a plea of guilt or no contest to the charge(s) and the court accepted the plea but suspended entry of a final judgment of conviction in lieu of placing the offender in a program of conditional release, the successful completion of which may result in the sealing or expungement of any criminal record. Finally, the rule would apply if the court entered a conviction on the record and sentenced the offender but suspended execution of the sentence in lieu of a program of conditional release.

The operative consideration for purposes of Rule 2.106 is whether the court, as a condition precedent, made some finding that the offender did indeed commit the offense charged. This finding, by a court of competent jurisdiction, whether technically classified as a “conviction” under the terms of an individual state’s law, makes an individual an offender for purposes of the Compact. The offender is no longer in a pretrial, presumed-innocent status, but found to have committed the charged offense notwithstanding the decision of the court to withhold punitive sentencing in favor of an alternative program of corrections, such as deferment, probation in lieu of sentencing, suspended imposition of sentence, or suspended execution of sentence. (Emphasis added).

It must be emphasized, given the overall purposes of the Compact, and the status of the Compact as federal law, that an individual state’s statutory scheme can vary from state to state and is of limited benefit in determining whether an offender is subject to the Compact. Individual states can use terms that are significantly different from other states to describe the same legal action. In determining the eligibility of an offender and the application of the ICAOS, one must not look at the legal definitions, but rather the legal action taken by a court of competent jurisdiction or the paroling authorities. To find otherwise would lead to disruptions in the smooth movement of offenders, the equitable application of the ICAOS to the states, and the uniform application of the rules. See ICAOS Advisory Opinion 4-2004.

In addition to the nature of the adjudication, eligibility also turns on the nature of the supervision ordered. The Commission defines the term “supervision” as follows:

“Supervision” means the oversight exercised by authorities of a sending or receiving state over an offender for a period of time determined by a court or releasing authority, during which time the offender is required to report to or be monitored by supervising authorities, and to comply with regulations and conditions, other than monetary conditions, imposed on the offender at the time of the offender’s release to the community or during the period of supervision in the community. See Rule 1.101.