26 February 2014

Detainers - Inside and Outside the Interstate Agreement

Some of you out there are lucky enough that you are safely ensconced in the center of a State and you never have to deal with the Interstate Agreement on Detainers. Unfortunately, we around here are not so lucky. With three other States in shouting distance, it's not too surprising when someone gets caught in the other State first and we have to wait our turn.  A detainer goes out to whichever prison that State has lodged the person in and then the games begin.

Every single prisoner out there seems to know the magic number 180. They hear from the guy in the cell next door, or a helpful counselor, or Uncle Bob (the family legal expert who's been to prison three times) that if they just notify Virginia that they want their trial then Virginia must come get them and try the case within 180 days or it goes away forever. They may get a lot of details about how everything works garbled, but they always remember that 180 days - and they constantly tell their attorney about it once they are shipped to Virginia.

So, what are the actual rules? Is the 180 day limit a rock solid, irrefutable speedy trial rule??

Of course not. Nothing's ever that simple in the law.

§ 53.1-210 is the statute in Virginia which contains the Agreement on Detainers. In Kentucky it's 440.450.  In Tennessee it's 40-31-101.  In West Virginia it's §62-14-1.  In North Carolina it's § 15A-761.  In Maryland it's § 8-405 (and the statutes around it).  That should cover most of the ones an attorney from Virginia should need. If you need  the version from Wyoming or Alaska you are on your own.

There are two events which actuate this interstate compact. First, Virginia must have lodged a detainer against someone serving a sentence in another State. The warden of the institution where the defendant is being held is required to notify the defendant that a detainer has been lodged against him. Second, the person must "cause" both the prosecutor and the court in the jurisdiction which issued the detainer to get a letter stating he wants to exercise his rights under the compact.

The mistake a lot of prisoners seem to make at this point is to send a letter themselves directly to the prosecutor and/or the trial court. Often, they even fail to send both letters. However, that error is not the primary reason that their effort fails.  It usually fails because of continuances once they are in Virgnia.

How the Interstate Agreement is Triggered

Under Article IV, the prisoner must write a letter, informing its recipients of her place of imprisonment and requesting a final disposition of the charges involved in the detainer. She then has to give it to the warden, who will then send it to the courts and prosecutors in all the jurisdictions from that particular State which have issued detainers. The warden also has to send a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Once all this arrives at the office of the prosecutor and the court the prisoner has caused it to be delivered.

Causing the letter to be delivered operates as a waiver of the prisoner's extradition rights and as an agreement that the prisoner will agree to serve any time given by the Virginia after she finishes serving her time in the original sentencing State.

Virginia also has the option to ask the original State for temporary custody of the prisoner. If this is done there is a delay of 30 days within which the governor of the original State may deny Virginia temporary custody either on the governor's own motion or the motion of the prisoner herself. Art IV.

What Causes Dismissals With Prejudice

After that, the prisoner is shipped to Virginia to face trial in the Commonwealth. There are two timelines within which the prisoner must be tried. The first is the 180 day timeline. This timeline starts from the moment the court and prosecutor receive the letter stating the defendant wants to be brought to Virginia for trial.  The second timeline is 120 days.1  This timeline starts from the day the prisoner is brought to Virginia by request of the Commonwealth without the prisoner so requesting.  Both of these timelines can be extended by continuances not objected to by the defendant.  However, if either timeline is reached the charges must be dismissed with prejudice.   Art. V(c).  The defendant has an affirmative duty to prove the court and prosecutor received the letters and appropriate certificates from the warden of the prisoner's original State more than 180 days prior.    See Eckard v. Commonwealth, 20 Va. App. 619 (1995).  If the sending State did not send the appropriate certifications with the letter the 180 limit is not held against Virginia. Id.

There's also an anti-shuttling provision in the compact. If a defendant is delivered to Virginia to face trial all of the charges which led to the detainer must be dealt with before the prisoner is shipped back to the original State. If they are not they are dismissed with prejudice. Art. III(d) and Art. IV(e).


There's one major limitation to this compact. It only applies to indictments, informations, and complaints.  For this compact to apply the case must be procedurally ready for trial upon the charging instrument linked to the detainer.  If there are procedures which are required other than trial - preliminary hearing, grand jury - then the Interstate Agreement on Detainers does not apply. In other words, if the detainer is based on a warrant neither the timelines nor the anti-shuttling provisions apply. See Locklear v. Commonwealth, 7 Va. App. 659 (1989), and Smith v. Commonwealth (U), DEC10, VaApp No. 2170-09-2.  Additionally, this compact does not apply to probation violations. Commonwealth v. Brown, 85 Va. Cir. 159 (2012); See Also Bolden v. Murray, 841 F. Supp. 742 (1975)(applying the same rule to the parole system probation supplanted). And it does not apply to a capias. Chu v. Commonwealth, 61 Va. Cir. 338 (2003)(court refers to capias as "bench warrant").

In other words, if a detainer is issued on a warrant, capias, or probation violation the prisoner can file all the letters he wants, but the compact does not apply and he cannot be shifted from the other State to Virginia under the Agreement. If he is shipped to Virginia anyway it is an extradition outside the compact and none of its protections apply. Instead the Commonwealth would be subject to the regular speedy trial constraints and nothing further.  This leads to an interesting question.  If the prisoner is in a jail in Virginia, but not under the terms of the compact, what authority allows the prisoner to be shipped back to the originating jurisdiction?

1 The 180 day limit is under Article III and the 120 day limit is under Article IV. Although Article IV read initially to me like the way Virginia is supposed to get the prisoner from the State currently holding him, Article V speaks of bringing someone to Virginia under either III or IV and case law indicates that III is from a prisoner's request while IV is from Virginia's request.  See Yiaadey v. Commonwealth, 29 Va. App. 534 (1999).

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