Return of Juveniles After Failed Transfer
The fourth circumstance under which a juvenile may be returned under the compact arises when an ICJ transfer of supervision has failed. The rules of the Revised ICJ specifies that a transfer of supervision has failed when:
- a juvenile is no longer residing in the residence approved by the receiving state due to documented instances of violation of conditions of supervision; or
- An alternative residence is determined to be in the best interest of the juvenile due to documented instances of violation of conditions of supervision and no viable alternatives exist in the receiving state; or
- An immediate, serious threat to the health and safety of the juvenile and/or others in the residence or community is identified; and
- The receiving state has documented efforts or interventions to redirect the behavior.
Additionally, when a juvenile is not residing with a legal guardian and that person requests the juvenile be removed from his/her home, the sending state shall secure alternative living arrangements within five (5) business days or the juvenile shall be returned. See ICJ Rules 5-103(4) (Interstate Comm’n for Juveniles 2020). It is clear that under ICJ Rule 5-101(1) a receiving state can apply any standard which is applied to its own juveniles in the evaluation of a particular transfer, and under the provisions of ICJ Rule 4-102(2), both the sending and receiving states have the authority to enforce the terms of probation and parole including any appropriate sanctions to be imposed. It is also reasonable to assume that since a receiving state, under ICJ Rule 4-104, has the authority to deny the initial application for compact supervision when a home evaluation reveals that a proposed residence is unsuitable or that the juvenile is not in substantial compliance with the terms and conditions of supervision, such a request could be made to the sending state to retake the juvenile should such circumstances arise subsequent to acceptance of supervision. It is equally clear that under ICJ Rule 5-103, a sending state has conclusive authority to retake a delinquent juvenile on parole or probation; this decision to retake the juvenile is not reviewable in the receiving state.
If it is determined necessary to return a juvenile whose transfer of supervision has failed to the sending state, and the Form VI Application for Services and Waiver has the appropriate signatures, no further court procedures are required for the juvenile’s return. Upon notification to the receiving state’s ICJ Office, a duly accredited officer(s) of a sending state may enter the receiving state and apprehend and retake any such juvenile on probation or parole and shall be permitted to transport a delinquent juvenile being returned through any and all states party to this compact without interference. If not practical, a warrant may be issued, and the supervising state (receiving state) shall honor the warrant. The sending state is required to return the juvenile in such cases within five (5) business days upon receiving notice of the failed transfer of supervision, in a safe manner, pursuant to ICJ Rules 7-102 and 7-107. See ICJ Rules 5-103(3)(d). With limited exceptions, the decision to retake a delinquent juvenile rests solely in the discretion of the sending state. See ICJ Rules 5-103. However, if the juvenile is suspected of having committed a criminal offense or an act of juvenile delinquency in the receiving state, the sending state may not retake the juvenile without prior consent from authorities in the receiving state, until discharged from prosecution, or other form of proceeding, imprisonment, detention, or supervision. See ICJ Rules 5-103(3)(a).
As provided in ICJ Rule 5-103(3)(c), the sending state may issue a warrant for the juvenile and request that the receiving state arrest and detain the juvenile pending retaking. Courts have routinely recognized the right of a receiving state to arrest and detain a juvenile based on such a request from a sending state. See, e.g., State ex rel. Ohio Adult Parole Auth. v. Coniglio, 610 N.E.2d 1196 (Ohio Ct. App. 1993) (offender cannot be admitted to bail pending retaking); Crady v. Cranfill, 371 S.W.2d 640 (Ky. Ct. App. 1963) (detention of offenders proper as only courts in the sending state can determine the status of their jurisdiction over the offender).
A juvenile arrested and detained for violating the terms and conditions of supervision may have certain due process rights. If the sending state intends to use the juvenile’s violations in the receiving state as the basis for possibly revoking the juvenile’s conditional release, U.S. Supreme Court decisions, which may be applicable in the context of ICJ retakings, require that the sending and receiving states comply with various hearing requirements.
In addition to specific rule authorization cited above, public policy justifies the arrest of an out-of-state juvenile notwithstanding the domestic law of the receiving state. The purpose of the Revised ICJ is not to regulate the transfer and return of juveniles, including juvenile offenders simply for the sake of regulation. Rather, regulating the movement of juveniles fulfills the critical purposes of promoting public safety and protecting the rights of crime victims. See Revised Interstate Compact for Juveniles, art. I (2008). All activities of the Commission and the member states are directed at promoting these two overriding purposes. Member states, their courts and criminal justice agencies are required to take all necessary action to “effectuate the Compact’s purposes and intent.” See id. article VII, § A(2).