What Happens if a Detainer is Pending on Release Date?

Our office receives several phone calls every month asking what a prisoner can do about a detainer, also called a hold, on that prisoner.  The critical question is what happens when the inmate reaches his or her release date for parole. 

If an inmate incarcerated in California still has a detainer as his or her release date is approaching, prison staff will notify the charging authorities of the impending release, including the release date. The notification must take place no later than sixty days before the release date for an out-of-state agency and no later than ten days before the release date for an in-state agency. 15 C.C.R. § 3370.5(f); see also DOM § 72040.7 (directing staff to send such notices ninety days before release date).  Penal Code § 4755(a).

If the agency that placed the detainer responds that the warrant has been recalled, the California Department of Corrections and Rehabilitation (CDCR) will ask the prosecutor to issue a “hold release” so that the detainer can be removed. 

If the hold is not released, then at the end of the California term, the inmate will be turned over to either the authorities from the charging jurisdiction or the sheriff for the county where the inmate has been in prison.  Whether an inmate is turned over to the charging authorities or to the local sheriff depends on the type of detainer and on whether the charging authorities are able to take immediate physical custody.

If the detainer is based on a California criminal or probation violation case, the inmate can be taken into custody by the county authorities where the proceedings are pending.  No formal court action is necessary.  The CDCR may then transfer the inmate to the demanding agency five calendar days before the scheduled release date (or five court days if the agency is more than 400 miles from the prison), so long as the agency agrees to keep the inmate in custody until the CDCR release date. Penal Code § 4755(b).  The inmate should receive custody credits toward any new term for these extra days in custody. People v. Lathrop (1993) 13 Cal. App. 4th 1401, 16  Cal. Rptr. 2d 830.

The CDCR may also keep an inmate in custody for up to five calendar days (or five court days if the agency is more than 400 miles from the prison) after the scheduled release date to facilitate pickup by the demanding agency. Penal Code § 4755(b).

However, if the demanding agency fails to take custody within this time frame, then the CDCR. must release the inmate.  If an inmate is released to the streets, the detainer becomes void and the person cannot be arrested on the charges unless a court issues a new arrest warrant. Penal Code § 4755(b). 

An inmate with a detainer for an out-of-state criminal case generally cannot be transferred to the other state unless there are formal extradition proceedings or the inmate waives the right to such proceedings.  The local sheriff will usually take custody of a person facing out-of-state criminal charges while the extradition proceedings are being conducted. 

One should note that if the detainer is based on an unserved criminal sentence imposed after a request for trial under the Interstate Agreement on Detainers (IAD), then the request for trial constituted a waiver of extradition.  For more information on waivers of extradition, please click on the linked articles at the bottom of this article.

If an inmate has detainers from multiple agencies, the CDCR will give custody priority to either the agency that placed the first detainer on the inmate or the agency that has issued a detainer for a previously imposed, but unserved prison term. 15 C.C.R. § 3370.5(g).

This article would not have been possible without reference in large part to the excellent treatise, California Prison and Parole Law Handbook, produced by the Prison Law Group in Folsom, California.