When Does the Interstate Agreement on Detainers Apply?

The Interstate Agreement on Detainers (IAD) sets forth a process for an inmate in jail or prison to be transported to another jail so that pending out-of-state or federal charges can be resolved, similar to extradition.

The process can be started at the inmate’s in prison’s request or at the request of the prosecutor where the charge is pending. Once a request for disposition is made, the charge must either be resolved promptly or must be dismissed.

It is smart to know four basic requirements for the IAD to apply:

First, the jurisdiction where the charges are pending must be a signatory to the IAD. Forty-eight states, the federal government, and the District of Columbia have signed on to the IAD. However, Mississippi and Louisiana are not parties to the IAD. In California, the IAD has been codified at Penal Code § 1389.

Second, the jurisdiction where the charges are pending must actually have filed a detainer and California prison officials must have received it.

A writ of habeas corpus ad prosequendum (an order stating a person must appear in a court) directing production of a person for trial on federal or out-of-state criminal charges is not a detainer under the IAD. United States v. Mauro (1978) 436 U.S. 340, 349, 98 S. Ct. 1834; 56 L. Ed. 2d 329. However, IAD protections are triggered if the government first files a detainer and then obtains custody by means of a writ of habeas corpus ad prosequendum. Id. Also, a district attorney’s letter to a warden inquiring whether and when a person could be released may be sufficient to activate the IAD. People v. Cella (1981) 114 Cal. App. 3d 905, 917-918, 170 Cal. Rptr. 915.

There is no way to force a prosecutor to file a detainer. However, if the prosecutor acts in bad faith or fails to exercise due diligence, some courts may dismiss the charges pursuant to speedy trial laws, especially if the delay in filing a detainer caused harm to the person in prison. State v. Welker (Wa. 2006) 157 Wash. 2d 557, 564-568, 141 P. 3d 8. Moreover, the reader should be aware that the IAD does not apply to charges that are not included in the detainer, such as unrelated new charges added after an IAD disposition request was made or after a person is transferred to the charging state. People v. Oiknine (1999) 79 Cal. App. 4th 21, 26-27, 93 Cal. Rptr. 2d 720 (listing cases in which other states and federal courts reached similar conclusions).

Third, the detainer must be for a pending new criminal charge. Penal Code § 1389, article III(a). Courts are divided about whether the IAD applies when there has been a conviction but no sentence has been entered. Gilbert v. State (Ind. App. 2013) 982 N.E. 2d 1087, 1091 (stating that most courts have held that the IAD does not apply to un-sentenced convictions); but see Tinghitella v. California (9th Cir. 1983) 718 F. 2d 308, 311-312 (the IAD applies to un-sentenced convictions).

It is well-established that the IAD does not apply when a detainer is based on a probation violation (Carchman v. Nash (1985) 473 U.S. 716, 726, 105 S. Ct. 3401; 87 L. Ed. 2d 516) or a parole violation (Hopper v. United States Parole Commission (9th Cir. 1983) 702 F. 2d 842, 846) The IAD also does not apply to ICE immigration detainers. Argiz v. United States Immigration (7th Cir. 1983) 704 F. 2d 384, 387.

Fourth, the inmate against whom the detainer has been placed must currently be serving “a term of imprisonment in a penal or correctional institution.” Penal Code § 1389, article III(a). It does not matter if the detainer was entered before the inmate began serving the term of imprisonment, so long as the inmate is serving a term when the request for disposition is made. People v. Swafford (Mich. 2009) 483 Mich. 176, 9-10, 2 N.W.2d 902.

It is undisputed that this requirement is met if an inmate is serving a criminal sentence in state prison, but at least one state has held that a criminal term in county jail does not qualify. Compare Dawes v. State (Fla. App. 2014) 135 So. 3d 420,422-423 (one-year jail sentence not term of imprisonment under IAD) with State v. Springer (Tenn. 2013) 406 S.W.3d 526, 538 (jail term covered by IAD) and People v. Walton (Col. App. 2007) 167 P. 3d 163, 166-167 (one-year jail sentence as condition of probation met requirement).

It is unclear whether a sentence for a probation or parole violation meets the requirement. The requirement is not met if the person is in jail awaiting disposition or sentencing on criminal or parole revocation charges. United States v. Dobson (3d Cir. 1978) 585 F.2d 55, 58-59 (IAD does not apply while a person is awaiting trial or incarcerated on unresolved parole violation charge); State v. Hargrove (Kan. 2002) 45 P. 3d 376, 383 [273 Kan. 314] (the IAD does not apply if person has been convicted, but not yet sentenced); People v. Garner (1990) 224 Cal. App. 3d 1363, 1369, 274 Cal. Rptr. 298 (detainer filed while person in jail awaiting trial did not trigger the IAD protections, where detainer did not follow the person to state prison after he was convicted); People v. Zetsche (1987) 188 Cal. App. 3d 917, 924-925, 233 Cal. Rptr.720; People v. Rhoden (1989) 216 Cal. App. 3d 1242, 1250, 265 Cal. Rptr. 355 (term of imprisonment did not start until resolution of a motion for new trial).

Lastly, IAD does not apply when a person is civilly committed in a mental hospital (Penal Code § 1389, article VI(b)) or is out on parole (United States v. Reed (9th Cir. 1980) 620 F. 2d 709, 711).

This article would not be possible without reference to the Prison Law Group’s California Prison and Parole Law Handbook, upon which this article is largely based.