General Overview: By virtue of the Interstate Agreement on Detainers Act, Pub.L. No. 91-538, 84 Stat. 1397 (1970) (hereinafter 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 unrelated trials between two States, and to transfers from the Federal Government to the States, and from the States to the Federal Government. It does not apply to transfers of Federal prisoners between the several judicial districts for trial on Federal charges. See United States v. Stoner, 799 F.2d 1253
(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 him/her 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 an untried indictment, information, or complaint is pending to obtain temporary custody of a prisoner against whom it has lodged a detainer by filing a "written request" for custody with the incarcerating State. Article V provides a detailed procedure for obtaining temporary custody.
The Agreement also provides that when a prisoner requests disposition of one matter upon which a detainer has been filed, it constitutes a request for 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 States v. 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 lodged is not authorized by the Agreement unless they arise from the same transaction. (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 (including any trial and sentencing, according to some courts) prior to returning the prisoner. If not, unless notice and opportunity for a hearing is provided under 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 844 (6th Cir.), cert. denied, 449 U.S. 877 (1980). Other charges may not be 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 States v. 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. 1976), aff'd, 556 F.2d 561 (2d Cir. 1977). Because the Agreement applies only to a detainer based upon a pending "indictment, information, or complaint" which requires a "trial" (Articles III(a) and IV(a)), the Agreement does not apply to a detainer based upon a parole violator warrant. See Reed, supra. The procedure for disposition of parole violation detainers is set out in 18 U.S.C. 4214(b). The Agreement is likewise inapplicable to probation violation detainers. See Carchman v. Nash, 473 U.S. 716 (1985).
Standing alone, a writ of habeas corpus ad prosequendum authorized by 28 U.S.C. 2241(c)(5) is not a "detainer" for purposes of the Act and does not trigger application of the Agreement. However, if a detainer has been filed, use of a writ of habeas corpus ad prosequendum to obtain custody does constitute a "written request" within the meaning of the Agreement, activating its provisions. 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 prisoner in the issuing jurisdiction. See Carmona v. Warden, 549 F. Supp. 621 (S.D.N.Y. 1982).
Transfer of Prisoners: Anti-Shuttling Provisions: Article III(d) and Article IV(e) contain similar provisions that require "If trial is not had on any indictment, information, or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice" unless the United States is the receiving jurisdiction and there has been notice and an opportunity for a hearing under Section 9 of the Agreement. (Article IV(e)) It has been held that "trial" in this context includes sentencing. See Walker v. King, 448 F. Supp. 580 (S.D.N.Y. 1978). The Department has not accepted this decision as a correct interpretation of the Act. Nevertheless, in order to avoid litigation and the risk of invalidating prosecutions, the return of prisoners should be deferred until after the imposition of sentence or a Section 9 hearing. Where, however, dismissal of an indictment is sought on the basis of a prisoner's 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 one day which does not interrupt the prisoner's rehabilitation program. United 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 Federal 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. See 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 232, 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 deviating in any way whatsoever from the strict dictates of Article IV(e) and Section 9 of the Agreement.
The protection of the Agreement's "anti-shuttling" provisions may be waived by the defendant's request for a retransfer prior to disposition of the outstanding charges. Articles III(d) and IV(e). See Webb v. Keohane, 804 F.2d 413 (7th Cir. 1986); United States v. Scallion, 548 F.2d 1168, 1170 (5th Cir.), cert. denied, 436 U.S. 943 (1978). As these rights are not guaranteed by the Constitution to preserve a fair criminal trial, there is no requirement that such a waiver be "knowingly and intelligently made." See United States v. Black, 609 F.2d 1330, 1334 (9th Cir. 1979), cert. denied, 449 U.S. 847 (1980); United States v. Eaddy, 595 F.2d 341, 344 (6th Cir. 1979). Upon like reasoning, it is generally held that the rights will be waived or forfeited through "procedural default" by failure to make timely objection in the trial court so that violations cannot be complained 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 v. 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 , 455 U.S. 910 (1982). See, however, Cody v. Morris, 623 F.2d 101 (9th Cir. 1980). Because violation of the Agreement is not a "jurisdictional" defect, an unconditional plea of guilty forecloses direct appeal and collateral review of alleged violations. See United States v. Palmer, 574 F.2d 164 (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 (1980).
Time Limitations: Article IV(c) provides that, subject to continuances granted for good cause in open court in the presence of the prisoner or his/her attorney, "trial shall be commenced within one hundred and twenty days 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 is lawful under the Speedy Trial Act generally will comply with the mandate of the Detainer Act." See United States v. Odom, 674 F.2d 228, 231 (4th Cir.), cert. denied, 457 U.S. 1125 (1982). See also Article III(a) (trial must commence within 180 days of receipt by prosecuting State of 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 sentence in a penal institution must promptly obtain the defendant's presence for trial 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, but do 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 of conflict between the time limitation prescribed by the Agreement and the Speedy Trial Act, the more stringent should be applied. United States v. Mauro, 436 U.S. 340, 356-57 n. 24 (1978). See Odom, supra, at 231 ("The Detainer Act and the Speedy Trial Act deal with the same subject matter. Whenever possible, the interpretation of the Acts should not be discordant.").
Extradition Rights Under State Law: In Cuyler v. Adams, 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, so that he was entitled to a hearing before he could be transferred from the custody of the State of Pennsylvania to the State of New Jersey. This ruling has no application, however, to prisoners serving Federal sentences because the United States has neither adopted the Uniform Extradition Act nor enacted any other statute providing the right of hearing. See Mann v. Warden, 771 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 are also not entitled to pre-transfer hearings even if the State whose sentence they 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 been 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, 449 U.S. 904 (1980). See, however, United States v. Scheer, 729 F.2d 164, 170 (2d Cir. 1984). The Attorney General has delegated the authority to 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. 527.31(a).
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