What happens where the probationer is going to be supervised in another state? Few lawyers (and not all judges) realize that when one’s client lives in another state the client may not leave Tennessee until the other state has “accepted” (which is a term of art) the client for probation supervision in the other state. Do you mean my California client has to stay in Tennessee while the paperwork is being processed? You bet. How long does that take? Read on.
Starting the Process
Defense lawyers are always thrilled when their clients are granted probation. Yet there is much to do after a client has been placed on probation. Unfortunately, lawyers just simply walk out of the courtroom and let the client fend for themselves with no preparation as to what might happen next.
When client’s home is in the same county as the courthouse, the client only has to deal with a single layer of probation-officer bureaucracy. What happens when the client lives in another state? Most lawyers think that the client can just go back home and the paperwork will catch up with them later. This, of course, could be fatal and, in extreme instances, require the client to return back to court unable to leave for the other state for months or perhaps never.
When a client is placed on probation (Tennessee is typical of most states) the probation officer will probably have the client fill out a number of forms there in the courtroom or in an adjacent building. These are standard rules of probation which the client must observe. If the client is a sex offender then there are additional conditions.
The person who “signs up” the client in the courtroom is frequently not the client’s supervising probation officer. In larger counties there is one officer assigned to the courtroom and multiple supervising officers “back” at the probation office.
The client is given a card in the courtroom and is instructed to contact a specific person in the probation office within a few days to set up an appointment. This is where things often fall apart. The assigned person may be in another court or out supervising other offenders and will seldom be available on the first try. It frequently takes days for the offender to get that first appointment. The lawyer should prepare the client for this eventuality to minimize client frustration with his or her first contact with the world of probation supervision.
Client “Acceptance” in the Supervising State
Tennessee, like all other jurisdictions, is a party to the interstate compact for supervision of adult offenders found in T.C.A. § 40-28-401. This compact provides a uniform method for transferring supervision from one jurisdiction to another. While similar in name, this is not the same thing as the interstate agreement on detainers which deals with bringing offenders to trial between jurisdictions.
The compact is administered by the interstate commission for adult offender supervision. If the state fails to abide by the rules of the commission then its offenders might not be permitted to enter other states.
The commission has a website that may be found HERE and is extremely helpful in answering common questions.
Essentially, the jurisdictions are denominated as the “sending state,” which is defined as the jurisdiction where the offender has been convicted, and the “receiving state,” which is where the offender wishes to dwell. The sending state must compile a significant amount of data and transmit the data to the compact administrator in the sending jurisdiction who then sends it to his or her counterpart in the receiving jurisdiction. Then, the receiving jurisdiction must analyze the request and determine if it is appropriate for the offender to be under supervision in the receiving state.
By no means is this an automatic thing. There must be a reason to go to the other state, such as a residence or for those transferring after they are on probation, a valid job and a place to live as well.
How long does this take?
The various rules which you can find on the website contain time limits for various actions. What is important here is that the receiving state has forty-five calendar days following the receipt of the transfer request to complete the investigation and respond to sending state’s request for transfer.
When the receiving state accepts the transfer then the receiving state advises the sending state and includes reporting instructions which are to be given to the offender. The sending state then issues a travel permit to the offender who then makes his or her way to the probation officer in the receiving state. The offender has five business days to get over to the other state and report to the assigned officer in the receiving jurisdiction.
There are some practice pointers here. The sending state may submit a completed request for a transfer no earlier than one hundred-twenty calendar days prior to the planned release from the correctional facility. In my experience, even if the offender is not in custody, it may be possible to request that a pre-transfer application be assembled and transmitted once the offender is actually granted probation. That is like moving a mountain, however, because probation officers may usually decline to do anything until the person is actually placed on probation and is under their jurisdiction. This is also a function of the individual needing a Tennessee Department of Correction identifying number.
The sending state may request that the receiving state agree to an expedited reporting instruction if the sending state believes that an emergency exists and the receiving state agrees with that determination. In my experience the quickest way to get a transfer approved is to have all the documentation ready at the front end. The transfer request requires a significant amount of information so that the receiving state can make an informed decision.
Under no circumstances should an offender go to the receiving state until he or she has actually received reporting instructions. There are some exceptions for going to the other state to work during the day and return and there is an exception for a seven day permit but there is so much paperwork in getting that, it is just as easy to wait for final approval.
Unquestionably, states which allow eligible offenders to transfer prior to the receiving state having an opportunity to investigate are in violation of the Compact. In such circumstances the receiving state can properly reject the request for transfer of such an offender, until the offender is returned to the sending state, due to the prior failure of the sending state to comply with the requirements of the compact.
In my experience the receiving state seldom waits the forty-five days. But here is the take-away: if the offender goes to the receiving state before there is approval by the receiving state then the receiving state can deny the offender approval and keep him or her out of that jurisdiction forever. There are sanctions which may be imposed against the sending state if this occurs.
Please be aware that being an interstate compact – federal laws govern and the state court judges have no authority to deviate from the procedure. Doe v. Pennsylvania Bd. of Prob. & Parole, 513 F.3d 95, 106 (3d Cir. 2008)( “Absent a federal statute making state statutory or common law applicable, federal law controls, and absent federal statutory guidance, the governing rule of decision must be fashioned by the federal court in the mode of the common law.”).
Nuts and Bolts and Practice Pointers
Is the transfer process free? There is a $150.00 fee that must be paid to an online collection service JPay, which transfers the funds to the TDOC.
The probation officer will accept a cashier’s check made payable to JPay but then you have to bring a stamp to send it to the JPay office! It is usually better to just run this through a credit card even though there is an additional fee for the credit card expense.
If everything goes as it should, from the date the transfer request is made, the complete transfer process usually takes five to ten days and the individual can be given clearance to go to the other state. This raises the immediate question as to what does your client do in Tennessee while the other state is reviewing the transfer request.
The first thing the lawyer should do while the transfer request is pending is to advise the client that he or she is not going to leave Tennessee for about a week or two, and plans must be made to live in the jurisdiction or at least within Tennessee while the transfer process is occurring. The client should be armed with sufficient funds to live in a hotel or some other place. The indigent usually end up in a mission somewhere. Many clients curse their lawyers for not telling them about this enforced sojourn in the county where they have been convicted.
Of course living unattended in a strange and new county is just a recipe for a new criminal offense and a probation violation before the paperwork has even been processed. Best practices dictate that the lawyer read the client the “riot act” about all this and be certain that the client understands that he or she is under supervision from the moment they walk out of the courtroom.
Sex offenders have an even more complex transfer procedure which is beyond the scope of this article. Suffice it to say that the sex offender transfers are far more rigorous and there is often a significant delay in the process.
In Nashville I always anticipate the problems with the clients who live in other jurisdictions and contact the in-court probation officer well before the plea. This is because the probation officer may not always have the appropriate out-of-state forms with them which slows down the process even more. Typically the judge will sign an order permitting supervision in another state and that has to be done on the spot before the transfer process even commences on a computer “back” at the probation office.
Making sure that the proper paperwork is in the courtroom at the proper time is the responsibility of the lawyer who should advise the in-court probation officer that out of state supervision will be sought for this offender. This promotes assignment to a more senior probation officer back at the probation office, who, hopefully, has some experience in this process and can begin the transfer process.
In Nashville you may find that the probation officers “back at the office” will tell the offender to show up sometime “next week” for their first appointment. This is absurd because the client is just sitting around waiting in some motel and nothing is accomplished for days or sometimes even a week before the transfer process is even initiated. It is here that I find most of the delay occurs. There is no excuse for this delay. Pre-planning will cut off an enormous amount of time and promote a smoother transfer.
Again, this is all the responsibility of the lawyer who needs to alert the probation officer that out-of-state supervision is being requested. While all of this is going on the offender should be advised about court costs and probation supervision fees. The client certainly has no idea about any of this and will simply wander from office to office cursing his or her lawyer for not telling them about these new wrinkles.
Ours is a mobile society and more people are being convicted of crimes distant from their domicile. Lawyers should spend a little time looking at the compact to learn about the procedure. It would also be helpful to spend a little time at the probation offices and look at some of the forms to become familiar with the transfer process for those clients who will be supervised in another state.