Interstate Agreement on Detainers
- General Overview: By virtue of the Interstate
Agreement on Detainers Act, Pub.L. No. 91-538, 84 Stat. 1397 (1970)
referred to as "the Act"), the United States (and the District of Columbia)
entered into the Interstate Agreement on Detainers, 18 U.S.C. App. III
(hereinafter, "the Agreement").
- The Agreement applies to transfers of sentenced prisoners for
trials between two States, and to transfers from the Federal Government to
States, and from the States to the Federal Government. It does not apply to
transfers of Federal prisoners between the several judicial districts for
on Federal charges. See United States v. Stoner, 799 F.2d
(9th Cir.), cert. denied, 479 U.S. 1021 (1986).
- Article III of the Agreement permits a prisoner to initiate final
disposition of any untried indictment, information, or complaint against
in another State on the basis of which a detainer has been lodged against
him/her. Article IV permits the prosecuting authority of a State in which
untried indictment, information, or complaint is pending to obtain temporary
custody of a prisoner against whom it has lodged a detainer by filing a
request" for custody with the incarcerating State. Article V provides a
procedure for obtaining temporary custody.
- The Agreement also provides that when a prisoner requests
of one matter upon which a detainer has been filed, it constitutes a request
disposition of all matters on which detainers have been filed by the same
"[S]tate." Article III(d). The several Federal districts have been held to
constitute separate "[S]tates" in this context. See United
Bryant, 612 F.2d 806 (4th Cir. 1979), cert. denied, 446 U.S. 920
(1980). Prosecution on other charges upon which detainers have not been
is not authorized by the Agreement unless they arise from the same
(Article V(d)) Whether trial of the latter is compulsory is not clear.
- When the U.S. Attorney initiates the request under Article IV, the
charge upon which the request is based must be completely disposed of
any trial and sentencing, according to some courts) prior to returning the
prisoner. If not, unless notice and opportunity for a hearing is provided
Section 9(2) of the Agreement, the charge will be dismissed with prejudice.
(Article IV(e)) The several Federal districts have been treated as separate
States in this context. See United States v. Woods, 621 F.2d
(6th Cir.), cert. denied, 449 U.S. 877 (1980). Other charges may not
prosecuted at the same time unless they arise from the same transaction.
(Article V(d)) Again, whether trial of the latter is compulsory or only
permissible is not clear.
- Applicability of the Agreement: The Agreement applies only to
"a person (who) has entered upon a term of imprisonment in a penal or
correctional institution" (Articles III(a) and IV(a)), and is therefore
inapplicable to one incarcerated awaiting trial. See United
Reed, 620 F.2d 709, 711-12 (9th Cir.), cert. denied, 449 U.S. 880
(1980); United States v. Evans, 423 F. Supp. 528, 531 (S.D.N.Y.
aff'd, 556 F.2d 561 (2d Cir. 1977). Because the Agreement applies
to a detainer based upon a pending "indictment, information, or complaint"
requires a "trial" (Articles III(a) and IV(a)), the Agreement does not apply
a detainer based upon a parole violator warrant. See Reed,
supra. The procedure for disposition of parole violation detainers
out in 18 U.S.C. 4214(b). The Agreement is likewise inapplicable to
violation detainers. See Carchman v. Nash, 473 U.S. 716
- Standing alone, a writ of habeas corpus ad prosequendum authorized
28 U.S.C. 2241(c)(5) is not a "detainer" for purposes of the Act and does
trigger application of the Agreement. However, if a detainer has been
of a writ of habeas corpus ad prosequendum to obtain custody does constitute
"written request" within the meaning of the Agreement, activating its
See United States v. Mauro, 436 U.S. 340 (1978). Nor is
application of the Agreement triggered by a writ of habeas corpus ad
testificandum, at least where no charges are then pending against the
in the issuing jurisdiction. See Carmona v. Warden, 549 F.
621 (S.D.N.Y. 1982).
- Transfer of Prisoners: Anti-Shuttling Provisions: Article
and Article IV(e) contain similar provisions that require "If trial is not
on any indictment, information, or complaint contemplated hereby prior to
return of the prisoner to the original place of imprisonment, such
information or complaint shall not be of any further force or effect, and
court shall enter an order dismissing the same with prejudice" unless the
States is the receiving jurisdiction and there has been notice and an
for a hearing under Section 9 of the Agreement. (Article IV(e)) It has
held that "trial" in this context includes sentencing. See Walker
King, 448 F. Supp. 580 (S.D.N.Y. 1978). The Department has not accepted
decision as a correct interpretation of the Act. Nevertheless, in order to
litigation and the risk of invalidating prosecutions, the return of
should be deferred until after the imposition of sentence or a Section 9
Where, however, dismissal of an indictment is sought on the basis of a
return prior to sentencing, it should be resisted.
- Courts are divided on whether the anti-shuttling provisions of the
Agreement are violated by a short duration removal from custody of less than
day which does not interrupt the prisoner's rehabilitation program.
States v. Roy, 830 F.2d 628, 635-636 (7th Cir. 1987); Sassoon v.
Stynchcombe, 654 F.2d 371 (5th Cir. 1981). Also, the return of a
defendant to a State facility where he/she is to be held under contract as a
Federal prisoner may not violate the "anti-shuttling" provisions.
United States v. Sorrell, 562 F.2d 227, 229 n. 3 (en banc), cert.
denied, 436 U.S. 949 (1978); United States v. Thompson, 562 F.2d
234 (3rd Cir. 1977) (en banc), cert. denied, 436 U.S. 949 (1978).
However, in view of the severe sanction imposed for violation of the
anti-shuttling provisions, extreme caution should be exercised before
in any way whatsoever from the strict dictates of Article IV(e) and Section
- The protection of the Agreement's "anti-shuttling" provisions may
waived by the defendant's request for a retransfer prior to disposition of
outstanding charges. Articles III(d) and IV(e). See Webb v.
Keohane, 804 F.2d 413 (7th Cir. 1986); United States v. Scallion,
F.2d 1168, 1170 (5th Cir.), cert. denied, 436 U.S. 943 (1978). As
rights are not guaranteed by the Constitution to preserve a fair criminal
there is no requirement that such a waiver be "knowingly and intelligently
See United States v. Black, 609 F.2d 1330, 1334 (9th Cir.
cert. denied, 449 U.S. 847 (1980); United States v. Eaddy, 595
341, 344 (6th Cir. 1979). Upon like reasoning, it is generally held that
rights will be waived or forfeited through "procedural default" by failure
make timely objection in the trial court so that violations cannot be
of for the first time on appeal, id. at 346, Scallion,
supra, at 1174, or in collateral proceedings under 28 U.S.C. 2255,
Greathouse v. United States, 655 F.2d 1032, 1034 (10th Cir. 1981),
cert. denied, 455 U.S. 926 (1982), or under 28 U.S.C. 2254, Fasano
Hall, 615 F.2d 555 (1st Cir.), cert. denied, 449 U.S. 867 (1980);
Bush v. Muncy, 659 F.2d 402 (4th Cir. 1981), cert. denied ,
U.S. 910 (1982). See, however, Cody v. Morris, 623 F.2d 101
Cir. 1980). Because violation of the Agreement is not a "jurisdictional"
an unconditional plea of guilty forecloses direct appeal and collateral
of alleged violations. See United States v. Palmer, 574 F.2d
(3rd Cir.), cert. denied, 437 U.S. 907 (1978); United States v.
Hach, 615 F.2d 1203, 1204 (8th Cir.), cert. denied, 446 U.S. 912
- Time Limitations: Article IV(c) provides that, subject to
continuances granted for good cause in open court in the presence of the
or his/her attorney, "trial shall be commenced within one hundred and twenty
of the arrival of the prisoner in the receiving [S]tate," otherwise the
indictment shall be dismissed with prejudice. (Article V(c)) "(D)elay that
lawful under the Speedy Trial Act generally will comply with the mandate of
Detainer Act." See United States v. Odom, 674 F.2d 228, 231
Cir.), cert. denied, 457 U.S. 1125 (1982). See also
III(a) (trial must commence within 180 days of receipt by prosecuting State
prisoner's request for final disposition of charges underlying detainer).
- In addition, the Speedy Trial Act of 1974, at 18 U.S.C. 3161(j),
requires that a U.S. Attorney who knows that a defendant is serving a
in a penal institution must promptly obtain the defendant's presence for
or cause a detainer to be lodged. If the prisoner demands trial and is made
available for prosecution, the time limits of the Speedy Trial Act apply,
not commence to run "until the defendant is actually present for purposes of
pleading." See H.R.Rep. No. 93-1508, 93rd Cong., 2d Sess. 36. In the event
conflict between the time limitation prescribed by the Agreement and the
Trial Act, the more stringent should be applied. United States v.
436 U.S. 340, 356-57 n. 24 (1978). See Odom, supra, at
("The Detainer Act and the Speedy Trial Act deal with the same subject
Whenever possible, the interpretation of the Acts should not be
- Extradition Rights Under State Law: In Cuyler v.
449 U.S. 433 (1981), the Supreme Court held that Article IV(d) preserved a
prisoner's extradition rights under the laws of the State of incarceration,
that he was entitled to a hearing before he could be transferred from the
of the State of Pennsylvania to the State of New Jersey. This ruling has no
application, however, to prisoners serving Federal sentences because the
States has neither adopted the Uniform Extradition Act nor enacted any other
statute providing the right of hearing. See Mann v. Warden,
F.2d 1453 (11th Cir. 1985) (per curiam), cert. denied, 475 U.S. 1017
(1986). It is the Criminal Division's position that State prisoners serving
sentences in Federal facilities under contracts pursuant to 18 U.S.C. 5003
also not entitled to pre-transfer hearings even if the State whose sentence
are serving provides for such hearings under its extradition laws.
- Section IV(a) allows a governor 30 days in which to disapprove a
request for transfer on his/her own motion or that of the prisoner. It has
held, however, that a State governor does not have the right to disapprove a
request issued in the form of a writ of habeas corpus ad prosequendum by a
Federal court even when a detainer has been previously lodged. See
United States v. Graham, 622 F.2d 57 (3rd Cir.), cert. denied,
U.S. 904 (1980). See, however, United States v. Scheer, 729
164, 170 (2d Cir. 1984). The Attorney General has delegated the authority
pass upon State requests under the Agreement to the Bureau of Prisons.
See 28 C.F.R. Sec. 0.96(n); see also, 28 C.F.R. Sec.
[cited in USAM 9-14.000]