INTERSTATE COMPACT FOR ADULT OFFENDER SUPERVISION

Currently, probationers, parolees, and others placed under community supervision while under the jurisdiction of the legal system are allowed, under certain circumstances, to travel between states or relocate to a state other than the one in which they were sentenced. The statutory authority for the movement and management of these probationers and parolees has, since 1937, been provided by the Interstate Compact for the Supervision of Parolees and Probationers (ISC). To replace the ISC, at least 35 states must adopt identical legislation enacting a new compact.

House Bill 4690 would replace the ISC by adopting the Interstate Compact for Adult Offender Supervision, which, among other things, would establish uniform procedures to manage the transfer of supervision across state boundaries of persons who have been released to the community while on probation, parole, or otherwise under the jurisdiction of courts, paroling authorities, or corrections or other criminal justice agencies. The interstate compact would include provisions for the establishment of an independent compact authority to administer ongoing compact activity (including a provision for staff support); rule making authority; required collection of standardized information; and a mandatory funding mechanism to support essential compact operations such as staffing, data collection, and training and education. The compact would take effect upon ratification by at least 35 states. The bill would specify that the compact would be enacted into law and entered into with all jurisdictions legally joining in the compact, in a form substantially as follows.

Article I: Purpose. The bill would specify that states which enter into this compact recognize that each state is responsible for the supervision of adult offenders in the community who, according to the bylaws and rules of the compact, are authorized to travel across state lines. Supervision would be provided in a manner as to track the location of offenders, transfer supervision authority in an orderly and efficient manner, and when necessary, return offenders to the originating jurisdictions. [The Crime Control Act, 4 U.S.C. Section 112 (1965), authorizes and encourages compacts for cooperative efforts and mutual assistance in the prevention of crime.]

The stated purpose of the compact is to provide a framework for the promotion of public safety and to protect the rights of victims through the control and regulation of the interstate movement of offenders in the community; to provide for the effective tracking, supervision, and rehabilitation of these offenders by the sending and receiving states; and to equitably distribute the costs, benefits, and obligations of the compact among the participating states. The states would also have to recognize that offenders do not have the "right" to live in another state, and therefore duly accredited officers of a sending state could at all times enter a receiving state and apprehend and retake any offender under supervision subject to the provisions of the compact, bylaws, or rules promulgated under the compact.

Article II: Definitions. The bill would define many terms, including the following:

· "Adult" would mean both individuals legally classified as adults and those juveniles treated as adults by court order, statute, or operation of law.

· "Offender" would be defined as an adult placed under, or subject to, supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies.

· "Rules" would refer to acts of the interstate commission which were promulgated under Article VIII of the compact. Rules would have the force and effect of law in the participating states.

· "State" would mean any of the 50 states, the District of Columbia, and any other territorial possession of the United States. A "compacting state" would be a state which had enacted the enabling legislation for this compact and a "noncompacting state" would be any state which had not enacted the enabling legislation.

Article III: The Compact Commission. The compacting states would be required to create the "Interstate Commission for Adult Offender Supervision", which would be a body corporate and joint agency of the compacting states. The compact would imbue the commission with responsibilities, powers, and duties, including the power to sue and be sued. The interstate commission would consist of commissioners selected and appointed by resident members of a state council for interstate adult offender supervision for each state. In addition to these commissioners (each of whom would be the voting representative of his or her state), the interstate commission would have to include members of interested organizations (including a member of the national organizations of governors, legislators, state chief justices, attorneys general, and crime victims) who would act as ex officio (nonvoting) members.

Each compacting state represented at a meeting of the interstate commission would be entitled to one vote, and at least one meeting a calendar year would have to be held. Meetings would be open to the public and would have to be noticed. An executive committee would have to be established by the interstate commission. The executive committee would have the power to act on behalf of the interstate commission during periods when the commission was not in session, and would be empowered to oversee the day-to-day activities managed by the executive director and interstate commission staff; administer enforcement and compliance with the compact's provisions and bylaws; and perform other duties as directed by the interstate commission or set forth in the bylaws.

Article IV: The State Council. Each compacting state would have to create a state council for interstate adult offender supervision. The state council would be responsible for the appointment of the commissioner who would serve on the interstate commission for that state; however, according to the compact, a state council would have to appoint its compact administrator as its commissioner. The compact administrator would be responsible for the administration and management of a state's supervision and transfer of offenders under the provisions of the compact, rules adopted by the interstate commission, and policies adopted by the state council. Each compacting state would retain the right to determine the qualifications of the compact administrator. The compact administrator could be appointed by the state council or by the governor with input from the legislature or judiciary.

Each state could determine the membership of its own state council, but its membership would have to include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and its compact administrator. In addition to appointing a commissioner to the national interstate commission, each state council would have to exercise oversight and advocacy concerning its participation in interstate commission activities as well as other duties such as the development of policy concerning operations and procedures of the compact within that state.

Article V: Powers and Duties of the Interstate Commission. Among many specified powers and duties, the interstate commission would have to do the following:

· Adopt suitable bylaws governing the management and operation of the interstate commission.

· Promulgate rules which would have the force and effect of statutory law and would be binding in the compacting states.

· Oversee, supervise, and coordinate the terms of the compact, bylaws, and rules.

· Enforce compliance with compact provisions, interstate commission rules, and bylaws.

· Establish and appoint committees and hire staff necessary for the carrying out of its functions, including an executive committee as specified in Article III.

· Accept donations and grants of money, equipment, and services; and lease, sell, or purchase property.

· Establish a budget, make expenditures, and levy duties as provided in Article X.

· Provide for dispute resolution among compacting states.

· Report annually to the legislatures, governors, judiciary, and state councils of the compacting states with regard to the activities of the interstate commission; the reports would have to include any recommendations adopted by the interstate commission.

· Establish uniform standards for the reporting, collecting, and exchanging of data.

Article VI: Organization and Operation of the Interstate Commission. Within 12 months of the first interstate commission meeting, the commission would have to adopt bylaws to govern its conduct, including, but not limited to, establishing the commission's fiscal year and establishing standards and procedures for compliance and technical assistance in carrying out the compact. (See the bill for a complete list of required bylaws.)

In addition, the bill would provide for the election of a chairperson and vice chairperson by the interstate commission who would serve according to the bylaws. These positions would be uncompensated except for reimbursement, subject to the availability of budgeted funds, for actual costs incurred in the performance of their duties. An executive director, who would serve as secretary to the interstate commission and be in charge of staff hiring and supervision, would have to be appointed or retained.

Members, officers, the executive director, and employees of the interstate commission would be granted immunity from civil liability - either personally or in their official capacity - for damages or other civil liability arising from acts, errors, or omissions occurring within the scope of their employment, duties, or responsibilities. However, persons could be liable for damages, losses, injuries, or liability caused by intentional or willful and wanton misconduct. Providing that the act did not result from intentional wrongdoing on the part of such a person, the interstate commission would have to defend the person in any civil action arising from acts that occurred within the person's scope of employment, duties, or responsibilities. Further, unless the act arose from gross negligence or intentional wrongdoing, the interstate commission would have to indemnify and hold any member, officer, executive director, or employee harmless in the amount of any settlement or judgment obtained against such them.

Article VII: Activities of the Interstate Commission. The interstate commission would have to meet at least once each calendar year (but could meet more often at the call of the chair or if requested by a majority of the members). Actions taken by the interstate commission would have to be consistent with provisions of the compact. Each member state (a state that has ratified the compact) would have one vote. Members could participate in commission meetings and vote via telecommunication or electronic communication.

Meetings of the interstate commission would have to be open to the public and public notice would have to be given, but the compact would allow, under certain specified conditions, meetings to be closed. If a meeting were closed to the public, certain procedures would have to be followed, and minutes of the closed meeting would have to be kept. In like manner, the bylaws would have to establish conditions and procedures to make information and records available to the public, but could exempt certain information from disclosure. Any information exempted from public disclosure could be released to law enforcement agencies.

Article VIII: Rule-Making Functions of the Interstate Commission. Rules would have to be adopted according to criteria set forth in the compact and the bylaws, and would have to substantially conform to the principles of the federal Administrative Procedure Act (5 U.S.C.S. Section 551 et seq.) and the federal Advisory Committee Act (5 U.S.C.S. App. 2, Section 1 et seq.). Rules and amendments would become binding as of the date specified in each rule or amendment. The bill contains procedures to be followed when promulgating rules, such as publishing the proposed rule; allowing persons to have input on a proposed rule via written data, facts, and opinions; and providing an informal hearing. The bill also contains a procedure by which a person could petition for judicial review of a rule within 60 days of the rule's promulgation. A rule could be set aside if the court found the interstate commission's actions were not supported by substantial evidence as defined in the federal Advisory Committee Act.

Further, within 12 months after the first meeting of the interstate commission, the commission would have to address, at a minimum, offender registration and compliance; violations and returns; transfer procedures and forms; eligibility for transfer; the level of supervision to be provided by the receiving state; mediation, arbitration, and dispute resolution; and the level of supervision to be provided by the receiving state, among other listed subjects. The compact also contains a provision regarding the implementation of emergency rules. In addition, the bill would nullify the existing rules promulgated under the Interstate Compact for the Supervision of Parolees and Probationers (the current compact which would be replaced by the Interstate Compact for Adult Offender Supervision) within 12 months after the first meeting of the interstate commission.

Article IX: Oversight, Enforcement, and Dispute Resolution by the Interstate Commission. The interstate commission would be charged with overseeing the interstate movement of adult offenders in the compacting states and would also have to monitor those activities being administered in noncompacting states which could significantly affect the compacting states. The courts and executive agencies in each compacting state would have to enforce the compact within that state. (The interstate commission is also charged with enforcing the provisions of the compact pursuant to Article XII, Section B, of the compact.) If a judicial or administrative proceeding pertaining to the compact affected the powers, responsibilities, or actions of the interstate commission, the commission would be entitled to receive all service of process, and would have standing to intervene in the proceeding.

The interstate commission would also be charged with resolving any disputes arising among compacting states and noncompacting states, and would have to enact a bylaw or promulgate a rule to provide for both mediation and binding dispute resolution for disputes among compacting states.

Article X: Finance. The bill would authorize the interstate commission to levy and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the commission and staff. This amount would have to be sufficient to cover the annual budget as approved each year. The aggregate annual assessment would have to be allocated based on a formula to be determined by the interstate commission, but would have to take into consideration the population of a state and the volume of interstate movement of offenders. Accurate accounts of all receipts and disbursements would have to be kept, and would be subject to the audit and accounting procedures established under commission bylaws. All funds handled by the interstate commission would have to audited yearly by a certified or licensed public accountant, and the audit report would have to be included in the commission's annual report.

Article XI: Compacting States, Effective Date, and Amendment. Any state, as defined in the bill, would be eligible to become a compacting state. The compact would become effective and binding - on compacting states - upon legislative enactment by at least 35 states. The governors or their designees of noncompacting states would be invited to participate in interstate commission activities on a nonvoting basis prior to adoption of the compact by all states and territories. The compact could be amended, but only by unanimous consent of the compacting states.

Article XII: Withdrawal, Default, Termination, and Judicial Enforcement. A compacting state could withdraw from the compact by repealing the compact's enabling legislation. A withdrawing state would have to provide written notice to the chairperson of the interstate commission upon introduction of the legislation to repeal membership in the commission, and would be responsible for all assessments, obligations, and liabilities incurred through the effective date of the withdrawal (including the performance of any obligations which would extend beyond the effective date of the withdrawal).

Penalties, including fines and the suspension or termination of commission membership, could be levied if the interstate commission determined that a state defaulted in its performance of obligations or responsibilities under the compact, bylaws, or rules. The interstate commission could also initiate legal action in federal district court (either in the District of Columbia or the federal district where the interstate commission has its offices) to enforce compliance with the provisions of the compact, bylaws, or rules against any compacting state in default. The prevailing party would be awarded all costs of such litigation including reasonable attorney fees.

The Interstate Compact for Adult Offender Supervision would be dissolved, and would become null and void, on the date that only one state was left retaining its membership in the interstate commission.

Article XIII: Severability and Construction. The bill would specify that the provisions of the compact would be liberally constructed to effectuate its purposes. The provisions contained in the compact would be severable so that if any phrase, clause, sentence, or provision were deemed unenforceable, the remaining provisions of the compact would remain enforceable.

Article XIV: Binding Effect of Compact and Other Laws. All lawful actions of the interstate commission, including rules and bylaws, would be binding upon the compacting states. The compact would supercede any law of a compacting state that was inconsistent with the compact. However, if a compact provision exceeded the constitutional limits imposed on the legislature of a compacting state, then any obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the interstate commission would be ineffective; the obligations, duties, powers, or jurisdiction would have to remain in the compacting state and be exercised by the agency in that state to which such obligations, duties, powers, or jurisdiction had been delegated by law in effect at the time the compact became effective. If a conflict arose over the meaning or interpretation of interstate commission actions, the interstate commission could issue an advisory opinion upon request by a party to the conflict and upon a majority vote of the compacting states.

BACKGROUND INFORMATION:

Parole. Parole is a release from prison -- after the minimum term of sentence has been served -- while a prisoner continues to serve his or her sentence. Though released to the community, a parolee remains under the legal control and custody of the Department of Corrections. According to information available on the DOC web site (www.state.mi.us/mdoc), a felon may be placed on parole by a vote of the Parole Board. Typically, a person is released on parole for a period of two years. Parolees must first go through a screening process, and are subject to many conditions while on parole, such as restrictions on movements, maintaining employment, a ban on possession of firearms and association with known criminals, and regular reporting to a parole agent. Failure to comply with parole conditions can result in the return to prison, placement in a Technical Rule Violation Center, increased supervision, community service, or substance abuse treatment. In Michigan, victims and the appropriate prosecutor's office, sheriff's department, and state police post in the sentencing county must be notified of the impending parole.

Probation. Probation is the primary alternative to prison for those convicted of felony offenses, although probation can be combined with time spent in jail. A person may be placed on probation for any misdemeanor or felony offense (other than murder, treason, armed robbery, criminal sexual conduct in the first or third degree, certain controlled substance violations, and felonies in which a firearm is used). Unless statute dictates otherwise, a judge has the discretion whether or not to place an offender on probation. A sentencing decision is based in part on a pre-sentence investigation (PSI) report prepared by department staff, which includes recommendations for sentencing. A term of probation is generally up to five years for a felony offense and up to two years for a misdemeanor, though probation for life can be imposed for certain drug offenses. Probation terms can include up to one year in jail. Like parole, probation carries conditions that must be adhered to. Failure to comply with court-ordered probation conditions can result in a sentence to jail or prison. Conditions can include payment of restitution, fines, court costs, and supervision fees. In addition, probationers must not commit any other crimes, must report regularly to probation agents, and may be ordered to do community service, attend substance abuse treatment, and find employment.

Special Alternative Incarceration Program (SAI). Also known as "boot camp", the SAI program was created in 1988 as an alternative to prison for selected male probationers. It was expanded in 1992 to include women and prisoners. The first 90 days of the program is structured similarly to a military boot camp. The next phase consists of intensive supervision in a community, which can include residential placement or electronic monitoring. For prisoners, the SAI program includes an 18-month parole or balance of the prisoner's minimum sentence, whichever is longer. This "post-release" phase of the program includes a requirement to work or attend school at least 30 a week, submit to random drug tests, and participate in any counseling, treatment programming, or training as directed by a probation or parole agent. The stated goal of the SAI program is "to keep selected, lower-risk probationers from going to prison and to take qualified prisoners out of the traditional prison setting and place them in a more economical setting." Indeed, the average cost for SAI participants is significantly lower than if the person spent the same time in jail or prison. Further, the program boasts a commendable success rate, with only about 12 percent of SAI graduates returning to prison for a new conviction.

Electronic Monitoring. The DOC estimates that, in 1999, an average of 2,800 offenders were on the state's electronic monitoring system (electronic tether program) each day. Of that number, more than 1,000 were prisoners, 1,400 were probationers, and almost 200 were parolees. In addition, approximately 200 offenders were monitored by the Family Independence Agency and various district and probate courts and sheriff's departments. Though the electronic tether does not track a parolee's or probationer's whereabouts like a homing device, it does allow the department to monitor and enforce curfews and other conditions of community supervision. At about $7.30 a day, this program is extremely cost effective, especially so since the offender must pay the daily costs. Of the more than 12,000 offenders placed on electronic monitoring in 1999, less than three percent were rearrested for a new felony and less than eight percent escaped or absconded.

Technical Rule Violation Centers. A very cost effective program meant to reduce the number of parolees returned to prison for parole violations, the Technical Rule Violation (TRV) program is a 90-day confinement program. During the confinement period, participants go through substance abuse treatment, complete their education, and perform jobs either in the facility or on public work crews. An offender who successfully completes the TRV program is returned to a community setting but is subject to intensive supervision. Refusal to participate or failure to complete the program results in a return to prison.

Community Residential Programs (CRP). Placement in a CRP is reserved for selected prisoners nearing parole release, and generally involves being housed in a center with round-the-clock security coverage or being placed on electronic monitoring. In 1999, more than 5,000 prisoners participated in a CRP. The intent of the program is to ensure that prisoners maintain employment and are financially and socially self-sufficient prior to being released. Most prisoners stay in the program for about six months, and offenders must pay the cost of room and board if in a center or the cost of a tether if on electronic monitoring. Fifty percent of those leaving the program in 1999 were released on parole, and less than one percent returned to prison for a new conviction. The DOC reports that due to recently enacted Truth in Sentencing legislation, the CRP will be phased out over the next few years.

FISCAL IMPLICATIONS:

The interstate commission created by the compact would oversee the interstate movement of adult offenders. The budget for the commission would be funded through annual assessments collected from participating states. The aggregate annual assessment would be based upon a formula that considered the population of the state and the volume of interstate movement of offenders in each compacting state. The Council of State Governments estimates that Michigan's assessment would be $32,000, assuming participation from all 50 states, five territories, and the District of Columbia. According to the House Fiscal Agency, this figure would be an increase of $30,000 over the $2,000 annual cost of participation in the current compact. (10-1-01)

ARGUMENTS:

For:

There are many compelling reasons for adoption of the Interstate Compact for Adult Offender Supervision, such as the following:

· Being one of the first 35 states to adopt the compact would mean that Michigan would be one of the states shaping and formulating policy for the administration and scope of the compact.

· The current compact is seriously outdated. Designed at a time when only several thousand offenders were placed on probation or released on parole, it, and the patchwork of rules promulgated since 1937, can no longer properly address the concerns and issues rising from supervision of several million offenders. With over a quarter of a million offenders now living in a state other than the one they were sentenced in, it is imperative that the compact be rewritten and new rules promulgated that will encompass the intricacies involved in providing accurate tracking and supervision.

· According to information supplied by the Council of State Governments and the National Institute of Corrections, there are "frequent violations of compact rules, no ability to enforce compliance, and difficulty in creating new rules". In addition, the exchange of information between states can be slow, unreliable, and inconsistent from state to state. Unlike the current compact, compliance and enforcement of the new compact could be accomplished by technical assistance, mediation, arbitration, suspension or termination of membership in the compact, and legal action in federal court. This should diminish the failure of states to properly notify a receiving state before sending an offender, and provide timely resolution for incidents like the one involving the offender from Maryland who was sent to Colorado without notification to authorities in that state. Had the new compact been in force, information regarding notify requirements, as well as eligibility criteria for transferal of supervision, could have been more easily accessible and the offender would have been less likely to fall through cracks in the system.

· In recent years, many states have enacted legislation pertaining to victim notification and other issues, such as sex offender registration, that are not addressed in the current compact. Enactment of a new compact and the rules that would be promulgated under it by the interstate commission could encompass the various state requirements to ensure the smooth transfer of offenders across state lines.

· Funding costs would be manageable. A state's fee for participation in the compact would be based on a formula that included the state's population and volume of interstate movement of offenders. Therefore, smaller states with a lower volume of offender movement could expect to pay less than a larger state with a high volume of offenders relocating across state lines.

· With 861 separate agencies operating over 3,200 probation and parole offices nationwide, information dissemination is very difficult. The revised compact would mandate the establishment of a national database that would provide efficient communications between states. Utilizing current communications technology, critical offender information could be collected uniformly and shared in a timely, efficient manner.

· The new compact could be amended by unanimous consent of the compacting states, and a rule passed by the Interstate Commission could be rejected by a majority vote of the compacting states. This means that the new compact would not be static, but could be adjusted to meet the changing needs of supervising probationers and parolees.

For:

According to information supplied by the Council for State Governments, states are given four options in regarding the new compact:

1) Enact the new compact and repeal the old compact. Contractual relationships under the old compact would then end, and new ones would be established with the other states adopting the new compact (by mid-September, 24 states had enacted the new compact and several more had passed it by one chamber; several states had already ended their legislative session for the year before adoption of the compact).

2) Enact the new compact but maintain the existing language from the old compact. However, this would create two different structures of rules and policies with which a state would have to comply. Such an approach would be quite problematic.

3) Reject the new compact and continue with the old one. This approach would mean that a state would maintain a relationship only with other states that opted to continue with the old compact. (However, the Council of State Governments expects the block of states choosing this approach to be small and to shrink rapidly as states see the successes of the new compact.) Difficulties arise from the fact that parolees and probationers could only be sent to or received from other states continuing with the old compact. This would put Michigan offenders at a severe disadvantage, as opportunities to join family, secure employment, or attend college could be jeopardized. As these are factors that increase the likelihood of successful completion of a probation or parole program, opting out of the new compact may prove an unwise decision.

4) Repeal the existing compact but choose not to enact the new compact. Since a compact is an agreement between two or more states, opting out of a compact to supervise offenders would mean that the state would not have legal constraints on transferring offenders to other states. So, the state could send probationers and parolees to other states without first obtaining permission or transferring supervisory authority. However, the reverse would also be true. Other states could literally "dump" offenders in such a state without prior permission, notification, or rules.

Obviously, it would be prudent to remain in a compact that sets policy for adult offender supervision across state lines. The choice is then between the old compact with its failings and inadequacies, or the new compact, which has the potential to solve many, if not all, of the problems in the current system. It would seem that adoption of the new compact would be the easy choice since, among many things, membership in the new compact would increase public safety, increase rehabilitation rates, provide a comprehensive framework for the smooth transferal of offender supervision, provide better tracking of offenders, ensure better information collection and dissemination, and provide enforcement tools for compact compliance.

Against:

Adoption of the new compact could significantly increase costs beyond the projected annual state assessment of $32,000, especially if more parolees and probationers are added to already overburdened case loads of probation officers and parole officials. More employees may be needed to handle the increased caseloads.

Response:

Adoption of the new compact would not in and of itself increase from other states the number of probationer and parolees needing supervision. What could happen, though, is that probationers and parolees from other states who have failed to report for supervision could now be identified and properly integrated into the system. In addition, if compact members elected to allow those in alternative community supervision programs to relocate to other states, an increase in the number of persons needing supervision under the compact could occur. Either, or both, of these scenarios could increase the number of probation and parole agents needed to provide adequate supervision. Any increase from offenders placed in alternative community supervision programs relocating to Michigan would be offset if Michigan placed offenders in similar programs in other states. Further, it could be expected that better supervision would lower overall costs by increasing the success of probation and parole programs (thereby decreasing crimes committed by persons reoffending and the costs of adjudication and incarceration for the new crimes). No one can predict with any certainty the cost to each state. But, by providing tighter supervision, public safety should increase, as well as the numbers of probationers and parolees successfully completing their programs. Besides, the annual corrections budgets of most states are in the millions and billions - by comparison, the anticipated fee of compact membership for Michigan of $32,000 is minimal. Considering the potential savings in overall corrections-related costs that the compact could deliver, the updated compact should prove to be a real bargain.

POSITIONS:

The Department of Corrections supports the bill. (10-9-01)

Analyst: S. Stutzky

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This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.