The retaking of an offender by a sending state based on alleged violations of the conditions of supervision in a receiving state or other state present particularly complex issues. As noted, the ICAOS provides that states may enter another state and retake an offender at any time. Where the sending state intends to use the alleged violations as grounds for revoking supervised release and/or supervision in the community, officials in the receiving state must be particularly cautious to ensure that a proper record is developed and that the offender’s due process rights have been protected. Offenders have a right under Morrissey and Gagnon not to have their liberty interests – however limited – revoked arbitrarily. State officials must establish some grounds for revocation. Therefore, if violations that occur in a state other than the sending state will form the basis of revocation, the offender is entitled to a more robust due process hearing that may be very similar to the revocation proceeding itself. However, even this statement must be qualified.

Considerations of geography may dictate the type of hearing to which the offender is entitled. For example, if great geographical distances separate the sending state from the receiving state, the offender may be entitled to a robust due process hearing. In such a case, it may be nearly impossible for the offender to present a meaningful defense in future revocation proceedings because distances will prevent the adequate presentation of favorable witnesses and exculpatory evidence. By contrast, where geographical distances are not a significant consideration and will not interfere with the ability of the offender to present witnesses and exculpatory evidence in a revocation proceeding, the hearing to which the offender is entitled may be significantly simpler. At least one court has held that the failure to grant an offender a probable cause hearing in the receiving state based on violations occurring in that state may preclude 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). However, where an offender admits to the violations during revocation proceedings in the sending state, the failure to provide an on-site probable cause hearing in the receiving state may be deemed harmless error. Cf., Montana v. Hardy, 926 P.2d 700 (Mont. 1996).

What constitutes “great geographical distance” for purposes of determining the elements of the hearing has not been defined by the courts. However, it is reasonable to conclude that distances that interfere with the offender’s ability to compel the attendance of witnesses or presentation of evidence would offend fundamental principles of due process. For example, an on-site probable cause hearing may not be required where the geographical consideration is the distance between New York City and Newark, New Jersey, or between Cincinnati, Ohio and Covington, Kentucky. By contrast, such a hearing may be warranted where the distance is between Los Angeles, CA and New York City, NY. Therefore, where violations in a receiving state will form the foundation for revocation proceedings in the sending state and geography may present problems in such future proceedings, the hearing officer in the receiving state should err on the side of caution by providing the offender a Morrissey/Gagnon type probable cause hearing. See, California v. Crump, supra.

Again, the actual decision to revoke an offender’s community supervision does not rest with officials in the receiving state but rather with officials in the sending state. The purpose of the hearing in the receiving state is to ascertain the facts and circumstances upon which the alleged violations occurred. The hearing is generally a fact finding hearing and not an adjudication of the merits of the alleged violations as grounds for revocation of community supervision. Allegations of due process violations in the actual revocation of community supervision are matters properly addressed during proceedings in the sending state after the offender’s return. See, People ex rel. Crawford v. State, 329 N.Y.S.2d 739 (N.Y. 1972); State ex rel. Nagy v. Alvis, 90 N.E.2d 582 (Ohio 1950); State ex rel. Reddin v. Meekma, 306 N.W.2d 664 (Wis. 1981); Bills v. Shulsen, 700 P.2d 317 (Utah 1985).