This guide is intended to provide hearing officers with basic guidance regarding the retaking procedures that may apply to offenders subject to the Interstate Compact for Adult Offender Supervision (ICAOS). Several cautionary notes should be understood in reading this guide. First, it is important to understand that this document is intended to provide guidance on due process retaking requirements. It is not intended to be an exhaustive legal opinion as each state may have procedural variations. Therefore, to the extent that a hearing officer is unclear on the application of due process procedures in a particular retaking proceeding, it is important to consult with local legal counsel to ensure compliance with state law.

Second, it is important that hearing officers, legal counsel and even offenders understand the distinction between “retaking” and “revocation.” “Retaking” is a process by which an offender is generally returned to the sending state. It is one of several mechanisms by which an offender can be returned to the sending state. Other mechanisms may include ordering the offender to return or seeking an offender’s voluntary return. By contrast, “revocation” is the process by which a sending state proceeds to terminate supervised release and/or supervision in the community and incarcerate the offender. While this distinction may seem elementary, it is important to differentiate these two concepts when considering the applicable due process standards. The use of the term “probable cause hearing” has led some to believe that an offender subject to retaking must be afforded the same full breadth of probable cause determinations mandated by the U.S. Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972) (fundamental due process requires a hearing before parole revoked) and Gagnon v. Scarpelli, 411 U.S. 778 (1973) (fundamental due process requires a hearing before probation revoked).¹ Both of these cases, however, applied to the revocation, not retaking, process.

Finally, while it is desirable to set bright line rule and clear tests in the retaking context, unfortunately not even the courts universally agree on the appropriate process. Some courts appear to hold that a “probable cause hearing” in the retaking process is not remarkably distinguishable from the revocation process, particularly where concerns for distance and geography may inhibit an offender’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). Other courts have held that the only matter for consideration in the receiving state is whether the officers from the sending state are acting within the scope of their authority and whether the offender is the proper person to be retaken. See e.g., Ogden v. Klundt, 550 P.2d 36, 39 (Wash. Ct. App. 1976). At least one federal court has held that an offender who is not incarcerated need not be afforded the preliminary hearings mandated by Morrissey and Gagnon because no liberty interest is at stake. See, Smith v. Snodgrass, et al. 112 Fed. Appx. 695 (10th Cir. 2004). Thus, the most that can be said is that the law applicable to retaking is evolving.

Notwithstanding the lack of bright line rules and firm clarity, fundamental considerations of due process do apply to some activities subject to retaking under ICAOS. The ICAOS recognizes that the transfer of supervision (and hence the relocation of an offender) is a matter of privilege subject to the absolute discretion of the sending state and, to a more limited extent, the discretion of the receiving state. Courts have also recognized that under an interstate compact, conditions can be attached to the transfer of supervision and if violated, can form the basis for the offender’s return and ultimate revocation of their supervised release and/or supervision in the community. Yet, while numerous courts have held that convicted persons do not have a right to relocate from one state to another, courts have also recognized that once relocation is granted states should not lightly or arbitrarily revoke the relocation.

This guide summarizes the general principles now applied across the nation to the retaking process. Again, it is not a full analysis and hearing officers are encouraged to consult local legal counsel should they have particular concerns. Individual state laws, practices and traditions may dictate different approaches to resolving due process questions. Nevertheless, this guide should enable a hearing officer at the very least to understand some of the complex issues that can arise and the critical steps that must be observed to ensure that an offender is afforded appropriate due process.

^{1 In Morrissey and Gagnon the Supreme Court set forth a two step process applicable to revocation proceedings. The first step involves a preliminary hearing is whether the detention of the offender is appropriate because she or he has in all likelihood violated the terms and conditions of supervised release. The second hearing is a proceeding on the merits of actual revocation of supervised release.}