114.2Interstate Compact and Detainers

The extradition process (found at G.S. 15A-721 through 15A-750, and described in the preceding section on Extradition) generally applies to fugitives who commit a crime in one state and flee to another state, or who are on probation or other supervision in one state and leave the state without permission.

Probationers or parolees convicted in one state who commit a violation while being lawfully supervised in a different state, as well as persons already serving a sentence in another state who face additional prosecution in North Carolina, are subject to detention and transfer back to the requesting state under two different statutory schemes described below.

Interstate Compact for Adult Offender Supervision

North Carolina is a party to the Interstate Compact for Adult Offender Supervision (“the Compact”), which regulates the supervision of probationers and parolees from other states who are residing in North Carolina. See G.S. 148-65.4 through G.S. 148-65.9; Interstate Commission for Adult Offender Supervision (ICAOS) Rules 2018. Under the Compact and various rules promulgated by the Compact’s governing commission, a parolee, probationer, or post-release supervisee may request a transfer of his supervision to another state if he is placed on supervision after being convicted of or released from custody on: (i) a felony, or (ii) a misdemeanor for which he is subject to at least one year of supervision, and the offense involved: (a) actual or threatened harm, (b) a firearm, (c) a second or subsequent DWI conviction, or (d) required registration as a sex offender. With limited exceptions, such as military members or persons transferred for employment, the offender usually has no automatic right to a transfer – the decision to grant the request is up to the discretion of the sending state. See ICAOS Rule 3.101-1. Receiving states must accept supervisees who have more than 90 days of supervision remaining and who are residents of the receiving state, or have family members and a job or means of support there. ICAOS Rule 3.101. A receiving state may accept other supervisees in its discretion. ICAOS Rule 3.101-2.

As noted above, a supervisee subject to the compact who is charged with committing a violation does not go through formal extradition proceedings. Instead, the compact has its own procedures, primarily found in G.S. 148-65.8, for “retaking” and returning a person to the originating state, referred to as the “sending state.” The receiving state is authorized to hold a hearing to determine whether “consideration should be given to retaking or reincarceration” of the supervisee by the sending state. Under current practice, the supervisee is committed to jail to await the hearing, unless waived, before an administrative officer of the Division of Community Correction, at which the administrative officer makes a determination whether the probationer should be returned to the originating state. The hearing must take place within 15 days of arrest. See G.S. 148-65.8(a). The probationer does not receive release conditions pending the hearing, does not appear before a judge, and does not receive appointed counsel to assist him at the hearing. If the receiving state determines that the supervisee should be returned to the sending state, the supervisee is detained and the sending state is notified. If the sending state gives notice that it does intend to retake the supervisee, then he is detained “for such reasonable period after the hearing or waiver as may be necessary” for the sending state to arrange retaking. G.S. 148-65.8(c1).

A receiving state may, in its discretion, elect to hold a hearing on the alleged violation itself, and transmit a record of the hearing to the sending state. See G.S. 148-65.8(d). Upon receipt, that record shall have “the same standing and effect” as if the hearing had been held back in the sending state, and shall be “fully considered by the appropriate officers of this State in making disposition of the matter.” Id. This provision may be helpful when proof of the violation can be more easily accomplished in the receiving state, due to availability of witnesses or other considerations.

Interstate Agreement on Detainers

When a defendant is already imprisoned or serving a sentence in another state, North Carolina can place a “detainer” on the defendant to prevent his or her release from prison without notice to the prosecutor, and may also extradite him or her to North Carolina for trial. See Interstate Agreement on Detainers (“the Agreement”), codified at G.S. 15A-761 through G.S. 15A-767. Similar statutes govern obtaining defendants from federal prison (G.S. 15A-771) or outside the United States (G.S. 15A-772). Because it has been approved by the United States Congress, the Interstate Detainer Agreement is treated as a federal law. See Cuyler v. Adams, 449 U.S. 433 (1981). Thus, North Carolina courts are bound by federal law interpreting the agreement as well as by state case law. As a matter of federal law, the demanding state’s failure to comply with the provisions of the agreement requires dismissal of the prosecution with prejudice. See Alabama v. Bozeman, 533 U.S. 146 (2001).

If the state lodges a detainer for untried offenses against a defendant already serving a term of imprisonment in another state, the defendant may request prompt disposition of the North Carolina charges.  A defendant who so requests is entitled to trial on the charges within 180 days. See G.S. 15A-761 (Article III(a)); see also State v. Prentice, 170 N.C. App. 593 (2005) (time begins to run only when “detainer” is lodged; case discusses meaning of “detainer”); State v. Dunlap, 57 N.C. App. 175 (1982) (Interstate Agreement on Detainers did not apply to defendant who was released from prison in New York after requesting disposition of North Carolina charges but before 180 day period expired). A prisoner seeking disposition of his or her charges must notify both the prosecutor and the court in the district where the charges are pending of: (i) his or her place of imprisonment; and (ii) his or her request for final disposition of the charges. See G.S. 15A-761 (Article III(a)); State v. Schirmer, 104 N.C. App. 472 (1991). The statutory period begins to run on the date the prosecutor receives the demand. See State v. Treece, 129 N.C. App. 93 (1998). If the defendant is not tried within the prescribed time period, the charges against him or her must be dismissed with prejudice. G.S. 15A-761 (Article III). The trial court may, however, grant continuances where reasonable or necessary, thereby extending the 180-day period. G.S. 15A-761 (Article III(a)); State. v. Capps, 61 N.C. App. 225 (1983).

Alternatively, a prosecutor may request temporary custody of an out-of-state inmate for purposes of trial on outstanding charges. In this circumstance, the inmate must be tried within 120 days of arriving in North Carolina. See G.S. 15A-761 (Article IV(c)). If the defendant is not tried within the prescribed time period, the charges against him or her must be dismissed with prejudice. G.S. 15A-761 (Article IV). But again, the court may grant continuances but “for good cause shown in open court, the prisoner or his counsel being present,” the may grant any continuance that is “necessary or reasonable,” thereby extending the 120 day period. G.S. 15A-761 (Article IV(c)).

The specific procedures to be used for lodging a detainer or demanding an inmate’s transfer to North Carolina vary somewhat by state, and some detainers may be lodged automatically by the prison staff upon proper notice of a pending charge. Typically, however, the process requires a detainer (see, e.g., AOC-CR-211) and a writ of habeas corpus (see, e.g., AOC-CR-223). See G.S. 15A-711; see also State of North Carolina Department of Public Safety: Prisons – Policy and Procedure, “Outstanding Charges/Detainers,” Chapter G, Section .0100, October 20, 2014.

Anti-Shuttling Provision

Once North Carolina obtains custody of an out-of-state prisoner pursuant to the Agreement, the prisoner may not be returned to his or her original place of imprisonment without having been tried. If a state violates this requirement, known as the “anti-shuttling” provision, the case must be dismissed with prejudice. See G.S. 15A-761 (Article III(d), Article IV(e)); Alabama v. Bozeman, 533 U.S. 146 (2001) (charges were properly dismissed where the defendant, who was serving time in a Florida federal prison, was taken to Alabama for one day to address pre-trial matters on his pending state charges and was returned to Florida without having been tried by Alabama); see also United States v. Peterson, 945 F.3d 144 (4th Cir. 2019) ("Ordinarily, a violation of the anti-shuttling provision visits strict consequences—a dismissal of the indictment with prejudice").