One area for potential confusion centers on the issue of treatment in lieu of supervision or treatment as supervision. In such cases, courts may be inclined to defer sentence and require enrollment in a community based or in-house treatment program in another state. Successful completion of the treatment program is commonly a condition of the supervision program. Such treatment programs may include drug treatment, mental health treatment, or sex offender treatment, to name a few. The difficulties with these programs arise when an offender in one state is required to enroll in a treatment program only available in another state and whether such situations constitute circumstances that would trigger the ICAOS.

Offenders placed in an out-of-state treatment program may trigger the requirements of the Compact even if the offender is not subject to supervision by corrections officials. Imposing a treatment component as a condition of release with corresponding requirements for progress reports to be submitted to the court, together with the potential for probation revocation upon failure to comply, is sufficient to trigger the Compact and its rules.

Enrollment in out-of-state treatment programs is typically a “discretionary” transfer unless the offender meets the residency or family ties with means of support criteria of Rule 3.101. Consequently, courts should be cautious in sentencing offenders, particularly high-risk offenders, to treatment programs in other states, even if the treatment may be intended to be short-term (less than 30 days.) Such sentencing practices could create an impossible situation for the offender who is required to participate in a program, but unable to transfer to that program or continue treatment (should the short-term treatment be extended to 45 days or more) if the receiving state declines to accept the case.