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THE INTERSTATE AGREEMENT ON DETAINERS:

NARROWING ITS AVAILABILITY AND APPLICATION

LESLIE W. ABRAMSON*

I. INTRODUCTION

In a mobile society, prosecutors frequently bring additional charg-es against convicted felons who are serving sentences in anotherjurisdiction. After the prosecutor notifies the inmate's penal institutionabout the additional charge, a "detainer"' is placed in the inmate'sfile. The existence of such unresolved charges may create problemsfor the inmate. Correctional officials may assume that an inmate witha detainer is a greater escape risk.' Accordingly, they may assign theinmate a higher security classification, which may frustrate treatmentopportunities because more desirable and helpful programs are usuallyoffered in minimum security institutions

* Professor of Law, University of Louisville School of Law; B.A., Cornell; J.D. and

LL.M., Michigan; S.J.D., Wisconsin. The author gratefully acknowledges the able assistanceof Cheryl Gentry Cooper in the preparation of this Article.

1. The United States Supreme Court has defined a detainer as "a request filed by acriminal justice agency with the institution in which a prisoner is incarcerated asking theinstitution either to hold the prisoner for the agency or to notify the agency when release ofthe prisoner is imminent." Carchman v. Nash. 473 U.S. 716, 719 (1985).

2. Cf. Peele v. Sigler, 392 F. Supp. 325, 327 (E.D. Wash. 1974). "It is ridiculous toassume that the possibility of thirty days in jail will lead a man presently serving a fifteenyear term to escape."' Donald E. Shelton, Unconstitutional Uncertainty: A Study of the Useof Detainers, 1 PROSPECTUS 119, 122 (1968).

Individual analysis is preferable to an automatic increase in security classification. Cf.Holt v. Moore, 357 F. Supp. 1102 (W.D.N.C. 1973). remanded on other grounds, 541 F.2d460 (4th Cir. 1976). Relevant considerations include the type of crime for which a sentenceis being served, the length of the current sentence, the time remaining on the sentence, theconduct of the inmate in prison, the nature of the new charge and its penalties, when theconduct occurred, whether a probable cause determination has been made, whether the chargeis based upon a warrant, indictment or letter, and the intentions of the prosecuting authoritiesto prosecute immediately or in the future.

3. See Smith v. Hooey, 393 U.S. 374, 379 (1969); United States v. Ford, 550 F.2d 732,

CRIMINAL AND CIVIL CONFINEMENT [Vol. 21:1

In Smith v. Hooey,4 the United States Supreme Court held thatan inmate in one jurisdiction has a Sixth Amendment right to aspeedy trial on charges pending in another jurisdiction.' A prosecutormust make a good faith and diligent effort to speedily prosecuteinmates confined in other jurisdictions.' Within a few years of theHooey decision, Congress and most state legislatures attempted toaddress the new charge detainer problem by becoming signatories tothe Interstate Agreement on Detainers.'

The purpose of the Interstate Agreement on Detainers (hereinafterIAD) is to provide a comprehensive and coherent solution to theproblems that beset the criminal justice system under the old detainersystem.' Under the IAD, an inmate "can force the expeditious dispo-

737 (2d Cir. 1977), affd, 436 U.S. 340 (1978); Shepard v. United States Bd. of Parole, 541F.2d 322, 325-26 (2d Cir. 1976), vacated and remanded, 429 U.S. 1057 (1977); S. REP. No.1356. 91st Cong., 2d Sess. (1970). reprinted in 1970 U.S.C.A.A.N. 4864, 4865-66; TiiECOUNCIL OF STATE GOVERNMENTS, HANDBOOK ON INTERSTATE CRIME 91 (rev. ed. 1966).An inmate with a detainer simply "exists" in a prison system. Cooper v. Lockhart, 489 F.2d308, 313-14 (8th Cir. 1973). Prison wardens "would be more human if they were not influ-enced by formal accusations of additional crimes and they would be negligent if they disre-garded the notice of the additional custodial risk." State v. Milner, 149 N.E.2d 189, 190(Ohio 1958). If a detained inmate escapes, the corrections department is embarrassed forlosing an inmate wanted elsewhere, and the relationship between the corrections departmentand the other jurisdiction or agency might be impaired. In addition, the detainer may affectan inmate's chances for parole. Sometimes, a parole board may parole an inmate "to thedetainer" earlier than normal to face an additional charge, or the parole board may delayparole because of the uncertainty about what will happen to the inmate when released.

4. 393 U.S. 374 (1969).5. Hooey, 393 U.S. at 383.6. See id. The Court also recognized the harmful psychological effects of detainer; on

inmates, citing the Director of the Federal Burea of Prisons on detainers' "corrosive" ef-fects. Id. at 379. The strain of having to serve a sentence with the uncertain prospect ofbeing taken into the custody of another state interferes with the prisoner's ability to takemaximum advantage of his institutional opportunities. His anxiety and depression may leavehim with little inclination toward self-improvement. Id. (citing James V. Bennett, The LastFull Ounce, 23 FED. PROBATION 20, 21 (1959)).

7. Interstate Agreement on Detainers Act, Pub. L. No. 91-538, 84 Stat. 1397 (1970)(codified at 18 U.S.C.A. app. 2 (1985)). The Interstate Agreement on Detainers (IAD) is acongressionally sanctioned compact which has been enacted in 48 states, Puerto Rico, theUnited States Virgin Islands, Washington, D.C. and the United States. Birdwell v. Skeen, 983F.2d 1332. 1335 (5th Cir. 1993) (citing Carchman v. Nash. 473 U.S. 716, 719 (1985)).Louisiana and Mississippi are the only states which have not enacted the lAD. Id. at 1335n.4. Several states, including Connecticut, Massachusetts, Michigan, and Pennsylvania, hadadopted the lAD prior to the Supreme Court's opinion in Hooey.

8. "Prior to the passage of the [lAD], a jurisdiction could file a detainer on a prisonerand refuse to prosecute its case until the prisoner's release from incarceration in the firstjurisdiction." Birdwell, 983 F.2d at 1335.

INTERSTATE AGREEMENT ON DETAINERS

sition of outstanding detainers and their underlying charges. Similarly,prosecutors can more easily obtain prisoners for trial; judges andprison and parole authorities can more rationally administer punish-ment and rehabilitation."9 The IAD not only provides the inmatewith a method of resolving the charges underlying detainers fromanother jurisdiction, but also provides prosecutors with a method forsecuring inmates incarcerated in other jurisdictions for trial before theexpiration of their sentences. This Article will address both the opera-tion of the new charge detainer system and the strict constructionwhich judicial decisions have placed on the IAD.

I. NARROWING THE AVAILABILITY OF THE IAD

There is a significant difference between the language of the IADand the way in which courts have defined its coverage. Courts'0 andlegislatures" have restricted the IAD to situations in which "a notifi-cation [is] filed with the institution in which a prisoner is serving asentence, advising that he is wanted to face pending criminal chargesin another jurisdiction."'' 2 This definition differs from the apparentscope stated in Article I of the LAD, which declares that the LADapplies to all situations in which an inmate faces pending charges inanother jurisdiction:

9. United States v. Ford, 550 F.2d 732, 741 (2d Cir. 1977), aff'd sub non. UnitedStates v. Mauro, 436 U.S. 340 (1978); see also United States v. Hall, 974 F.2d 1201 (9thCir. 1992); United States v. Roy, 830 F.2d 628 (7th Cir. 1987), cert. denied, 484 U.S. 1068(1988); Kerr v. Finkbeiner, 757 F.2d 604 (4th Cir. 1985), cert. denied, 474 U.S. 929 (1985);United States v. Bryant, 612 F.2d 806 (4th Cir. 1979), cert. denied, 446 U.S. 920 (1980);United States v. Black. 609 F.2d 1330 (9th Cir. 1979). cert. denied, 449 U.S. 847 (1980);Camp v. United States, 587 F.2d 397 (8th Cir. 1978); United States v. Wilson. 737 F. Supp.599 (D. Nev. 1990); State v. Chapman, 565 A.2d 259 (Conn. Ct. App. 1989).

10. See, e.g., State v. Wood, 241 N.W.2d 8 (Iowa 1976).11. S. REP. No. 1356, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.A.A.N.

4864, 4865; see also H.R. REP. No. 1018. 91st Cong.. 2d Sess. (1970).12. United States v. Evans, 423 F. Supp. 528, 531 (S.D.N.Y. 1976), aft'd, 556 F.2d 561

(2d Cir. 1977). There is no agreement as to what constitutes a detainer. Undoubtedly, a cer-tified copy of a charging document would be regarded as a detainer by a court. A detainermay be nothing more than a letter from a court clerk to prison officials advising that aninmate is wanted to face specific charges and instructing the officials to contact the propercourt for further information. People v. Beamon, 268 N.W.2d 310 (Mich. Ct. App. 1978).The United States Supreme Court has defined a detainer as "a request filed by a criminaljustice agency with the institution in which a prisoner is incarcerated asking the institutioneither to hold the prisoner for the agency or to notify the agency when release of the pris-oner is imminent." Carchman v. Nash, 473 U.S. 716. 719 (1985).

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CRIMINAL AND CIVIL CONFINEMENT

The party States find that charges outstanding against a prison-er, detainers based on untried indictments, information[], or com-plaints and difficulties in securing speedy trial of persons alreadyincarcerated in other jurisdictions, produce uncertainties whichobstruct programs of prisoner treatment and rehabilitation. Ac-cordingly, it is the policy of the party States and the purpose ofthis agreement to encourage the expeditious and orderly disposi-tion of such charges and determination of the proper status ofany and all detainers based on untried indictments, information[],or complaints."

According to the letter and spirit of Article I, the IAD covers anyfiled or unfiled charge in one party state that is pending against anincarcerated person in another party state. Moreover, Article IX ofthe IAD states that the agreement "shall be liberally construed so asto effectuate its purposes,"' 4 which are recited in Article I'

The general language of Article I, concerning the correctionalproblems created by outstanding charges, is restricted by Articles IIIand IV to those charges that are filed at the inmate's place of con-finement. The implication is that an inmate suffers no restraints priorto the filing. 6 As long as the institution is officially unaware of thecharges, the assumption is that the prison will not respond with ahigher custody classification or a denial of eligibility for vocationaland other correctional programs. Thus, before a detainer is filed, theother jurisdiction arguably can assume temporary custody of an in-mate on countless occasions. This view ignores the fact that aninmate's psychological outlook may be impaired upon learning that acriminal charge has been placed or soon may be placed against theinmate by another jurisdiction, although it has not been filed at theprison.

A. Interjurisdictional Transfers

The IAD applies only to interjurisdictional transfers. Transferswithin a jurisdiction are often governed by statutes such as the Uni-

13. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2, art. 1 (1985) (em-phasis added).

14. Id. § 2, art. IX.15. See supra text accompanying note 13.16. State v. Wood, 241 N.W.2d 8 (Iowa 1976); State v. Newman, 367 A.2d 200 (R.I.

1976).

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form Mandatory Disposition of Detainers Act. 7 The issue ofmultijurisdictional transfers has surfaced only since Congress adoptedthe IAD in 1970 and made the United States a party state. Sincethen, the question of whether the United States is one or ninety-fourjurisdictions (the number of judicial districts in the United States) forpurposes of the IAD has been raised. The uniform judicial responseis that the United States is one jurisdiction" under the IAD. Be-cause the IAD does not apply to outstanding charges of the samejurisdiction in which an inmate is incarcerated, it has no effect on thetransfer of defendants from one federal district to another for trial.'9

B. Status of the IAD as an Interstate Compact

In Cuyler v. Adams,0 the United States Supreme Court ad-dressed whether the IAD is an interstate compact approved by Con-gress and therefore a federal law subject to federal rather than stateconstruction.2' "Because Congressional consent transforms an inter-state compact-within this clause into a law of the United States, wehave held that the construction of an interstate agreement sanctionedby Congress under the Compact Clause presents a federal ques-tion." 2- Congressional consent to an interstate compact may occur bythe authorization of joint state action in advance or by an express orimplied approval to an agreement the states have already joined.23

"In the case of the [IAD], Congress gave its consent in advance by

17. The Mandatory Disposition of Detainers Act has been adopted in the following states:Arizona, ARIz. R. CRIM. P. 8.3(b) (1973); Colorado. COLO. REV. STAT. §§ 16-14-101 to -108 (1974); Kansas, KAN. STAT. ANN. §§ 22-4301 to -4308 (1974); Minnesota, MINN. STAT.ANN. § 629.292 (Supp. 1978); Missouri, Mo. REv. STAT. §§ 222.080-.150 (1962); NorthDakota, N.D. CENT. CODE §§ 29-33-01 to -08 (1974); Utah. UTAH CODE ANN. §§ 77-65-1to -3 (1978).

18. See, e.g., United States v. Krohn, 558 F.2d 390. 392 (8th Cir. 1977), cert. denied,434 U.S. 868 (1977); United States v. Cappucci, 342 F. Supp. 790, 793 (E.D. Pa. 1972);State v. Wiggins, 425 So. 2d 621 (Fla. Dist. Ct. App. 1983).

19. See. e.g., Hunter v. Samples. 15 F.3d 1011. 1012 (1 1th Cir. 1994); United States v.Walling. 974 F.2d 140, 141 (10th Cir. 1992); United States v. Stoner, 799 F.2d 1253, 1255-56 (9th Cir. 1986). cert. denied, 479 U.S. 1021 (1986); United States v. Woods. 621 F.2d844. 845 n.1 (6th Cir. 1980). cert. denied, 449 U.S. 877 (1980); United States v. Krohn,558 F.2d 390, 392 (8th Cir. 1977).

20. 449 U.S. 433 (1981).21. Ciyler, 449 U.S. at 438. The Compact Clause of the United States Constitution pro-

vides that: "No State shall, without the Consent of Congress . . . enter into any Agreementor Compact with another State .... " U.S. CONST. art. 1, § 10. cl. 3.

22. Cuvler, 449 U.S. at 438.23. Id. at 441.

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enacting the Crime Control Consent Act of 1934. "24The Court's resolution of this issue has a profound effect on the

precedential value of all federal and Supreme Court decisions con-cerning state to state transfers under the IAD. If the Court had heldthat the IAD was not a sanctioned compact, then application of anySupreme Court decision concerning the IAD would not be deemed toapply by law to state courts interpreting state to state transfers. Sucha rule would allow multiple judicial interpretations of the IAD. Byholding that the IAD is a sanctioned compact, the Court establishedthe IAD as a federal law subject to federal construction.-

C. Technical Violations of the lAD

A split exists among the circuits on the propriety of a dismissal

24. Id. The Crime Control Consent Act of 1934. sought to remove obstruction imposedby the Federal Constitution, thus allowing states to work out problems in law enforcementby mutual agreement. Id. at 441 n.9.

Because this Act was intended to be a grant of consent under the CompactClause, and because the subject matter of the Act is an appropriate subject forcongressional legislation, we conclude that the Detainer Agreement is a con-gressionally sanctioned interstate compact the interpretation of which presents aquestion of federal law.

Id. at 442. "Congressional power to legislate in this area is derived from both the CommerceClause and the Extradition Clause." Id. at 442 n.10.

25. Id. at 442. After concluding that the IAD presents a question of federal law. the Su-preme Court addressed the issue of whether a prisoner incarcerated in a jurisdiction that hasadopted the Uniform Criminal Extradition Act is entitled to the procedural protections of thatAct. ld. Both the lAD and the Extradition Act establish procedures whereby one jurisdictiontransfers a prisoner into the temporary custody of another jurisdiction. Id. at 443. Under theExtradition Act, a prisoner is granted a right to a pretransfer hearing at which he is in-formed of the receiving state's request for custody, his right to counsel, and his right toapply for a writ of habeas corpus challenging the custody request. Id. No similar provisionexists in the lAD. Id.

The Supreme Court analyzed the statutory language of the lAD, stating that substantialsupport existed in Articles III and IV for the procedural protection provided under the Extra-dition Act. Id. at 444-48. Under Article Ill(e) of the IAD, "[any request for final dispositionmade by a prisoner ... shall also be deemed to be a waiver of extradition with respect toany charge or proceeding contemplated thereby." I& at 445. The Supreme Court interpreted"waiver of extradition" to mean "waiver of those rights the sending state affords personsbeing extradited." Id. Further, Article IV(d) of the IAD states: "Nothing contained in thisarticle shall be construed to deprive any prisoner of any right which he may have to contestthe legality of his delivery as provided in paragraph (a) hereof ...." hi. The Court heldthat the language of Article IV(d) supports the contention that a prisoner's extradition rightsare meant to be preserved when the receiving state seeks disposition of an outstanding de-tainer. Id. at 446. Therefore. a prisoner is entitled to the procedural protection of the Extra-dition Act, providing for the right to a pretransfer hearing before being transferred to thereceiving state's custody.

1995] INTERSTATE AGREEMENT ON DETAINERS

of the untried criminal charge for technical violations of the IAD.26

The majority view is that technical violations of the IAD do notrequire dismissal.27 The Ninth Circuit, in United States v. John-son,28 examined the issue of "[w]hether one or more one-day trans-fers between a sending and receiving state without resolution of thereceiving state's pending charges violate the [IAD]."' 9 In agreeingwith the First, Second, Fifth and Seventh Circuits,3" the Ninth Cir-cuit Court of Appeals held that brief transfers of inmates are permis-sible where such transfers do not interfere with the inmate's rehabili-tative program or threaten the prisoner's interest.3 Both the Thirdand the Tenth Circuits have held that a violation of the IAD warrantsdismissal.32 In United States v. Thompson,33 the Third Circuit heldthat judicial legislation should not discard the IAD's prescribed man-datory sanctions.3 4 Thus, once an Act is applicable, the court mustfollow its commands precisely.35

D. Writ of Habeas Corpus Ad Prosequendum

A writ of habeas corpus ad prosequendum is a court order de-manding that an inmate be produced to face criminal charges. A

26. See Taylor v. United States, 112 S. Ct. 2982, 2982 (1992) (White, J., dissenting),denyiing cert. to 947 F.2d 1002 (lst Cir. 1991). Justice White stated that "Jolne of theCourt's duties is to do its best to see that the federal law is not being applied differently inthe various circuits around the country. The Court is surely not doing its best when it deniescertiorari in this case, which presents an issue on which the Courts of Appeals arerecurringly at odds." Id. (White, J., dissenting).

27. See, e.g., United States v. Johnson, 953 F.2d 1167, 1171 (9th Cir. 1992), cert. de-ied, 113 S. Ct. 226 (1992); United States v. Taylor, 947 F.2d 1002 (1st Cir. 1991), cert.

denied, 112 S. Ct. 2982 (1992) (White, J., dissenting): United States v. Roy, 830 F.2d 628.636 (7th Cir. 1987), cert. denied, 484 U.S. 1068 (1988): United States v. Roy, 771 F.2d 54,60 (2d Cir. 1985), cert. denied, 475 U.S. 1110 (1986); Sassoon v. Stynchombe, 654 F.2d371, 374-75 (5th Cir. 1981).

28. 953 F.2d 1167 (9th Cir. 1992), cert. denied. 113 S. Ct. 226 (1992).29. Id. at 1171.30. See supra note 27.31. United States v. Johnson, 953 F.2d at 1171; see also United States v. Taylor, 947

F.2d at 1003 (a single day interruption is so brief that it is no threat to the inmate's reha-bilitation).

32. United States v. Thompson, 562 F.2d 232, 234 (3d Cir. 1977), cert. denied, 436 U.S.949 (1978); United States v. Schrum, 638 F.2d 214 (10th Cir. 1981).

33. 562 F.2d 232 (3d Cir. 1977), cert. denied. 436 U.S. 949 (1978).34. Thompson, 562 F.2d at 234-35.35. United States v. Schrum, 504 F. Supp. at 25. qffLd. 638 F.2d 214 (10th Cir. 1981)

(interpreting United States v. Thompson, 562 F.2d 232 (3d Cir. 1977). cert. denied. 436 U.S.949 (1978)).


controversy during the late 1970s and still appearing in front of thecourts- 6 centers on whether a writ of habeas corpus ad prose-quendum is a detainer entitling a state inmate to the protections ofthe 1AD when taken into federal custody by a writ and returned tothe inmate's state institution before trial. Prior to the SupremeCourt's holding in United States v. Mauro37 that such a writ doesnot constitute a detainer," some courts had equated the writ with adetainer because otherwise the prosecution could circumvent the LADby using a writ.39 A similar number of courts held that a writ and adetainer are distinct methods for obtaining custody of inmates forprosecution because they are fundamentally different in purpose, legalbasis and historical context.4"

E. Pretrial Detainers

Both state and federal courts have addressed whether the IAD

36. Compare Stewart v. Bailey, 7 F.3d 384, 390 (4th Cir. 1993) (writ of habeas corpusad prosequendum requesting custody of state prisoner for trial on criminal charges. is not a"detainer" within the meaning of the IAD and the lAD's provisions are not triggered byexecution of the writ) and People v. Wilden, 496 N.W.2d 801. 803 (Mich. App. Ct. 1992)(writ of habeas corpus ad prosequendum is not considered a detainer, regardless of whetherissued by state or federal court), appeal denied. 505 N.W.2d 580 (Mich. 1993) with Runckv. State. 497 N.W.2d 74, 80 (N.D. 1993) (writ of habeas corpus ad prosequenduni issued bystate district court and attached affidavit and order constituted both a detainer and a writtenrequest for temporary custody within the meaning of Article IV of the lAD).

37. 436 U.S. 340 (1978).38. Mauro, 436 U.S. at 359-61.39. See, e.g., United States v. Sorrell, 562 F.2d 227 (3d Cir. 1977), cert. denied. 436

U.S. 949 (1978); United States v. Mauro, 544 F.2d 588 (2d Cir. 1976), rev'd, 436 U.S. 340(1978); United States ex rel. Esola v. Groomes. 520 F.2d 830 (3d Cir. 1975).

40. See, e.g., United States v. Harris. 566 F.2d 610 (8th Cir. 1977); Ridgeway v. UnitedStates, 558 F.2d 357 (6th Cir. 1977), cert. denied, 436 U.S. 946 (1978); United States v.Kenaan, 557 F.2d 912 (1st Cir. 1977), cert. denied, 436 U.S. 943 (1978); United States v.Scallion, 548 F.2d 1168 (5th Cir. 1977), cert. denied, 436 U.S. 943 (1978); Huff v. UnitedStates. 437 F. Supp. 564 (W.D. Mo. 1977); People v. Squitieri, 397 N.Y.S.2d 888 (N.Y.Sup. Ct. 1977); People v. Valenti. 396 N.Y.S.2d 321 (Monroe County Ct. 1977).

Since United States v. Mauro. 436 U.S. 340 (1978), courts have split on whether awrit of habeas corpus ad prosequendiun is a request which triggers the lAD. Compare Com-monwealth v. Wilson, 504 N.E.2d 1060 (Mass. 1987) (writ constitutes a request, however,executive agreements entered into by the Governors of two states under the Uniform Crimi-nal Extradition Act cannot be termed "request") with United States v. Castor, 937 F.2d 293(7th Cir. 1991) (writ not a detainer); Diggs v. Owens, 833 F.2d 439 (3d Cir. 1987). cert.denied, 485 U.S. 979 (1988) (writ of habeas corpus ad prosequendwn is neither a requestfor temporary custody nor a detainer which invokes speedy trial or anti-shuffling provision ofIAD) and People v. Carter, 549 N.E.2d 763 (I11. Ct. App. 1989) (writ of habeas corpus tidprosequenduni not a detainer), appeal denied, 553 N.E.2d 398 (II1. 1990).

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applies to incarcerated persons awaiting disposition of a pendingcharge. Because a term of imprisonment is a period of actual physi-cal confinement following a conviction,4 a prisoner cannot availhimself of the IAD because he has not been sentenced to a term ofimprisonment.42 In United States v. Reed,43 the Ninth Circuit, rely-ing upon the purpose of the IAD for its rationale, held that a pretrialdetainee is not serving a "term of imprisonment." The purpose of theIAD is "to minimize the adverse impact of a foreign prosecution onrehabilitative programs of the confining jurisdiction."' Therefore, a

41. See United States v. Roberts, 548 F.2d 665 (6th Cir. 1977), cert. denied, 431 U.S.920 (1977).

42. See, e.g., United States v. Muniz, I F.3d 1018, 1025 (10th Cir. 1993) (provisions ofthe IAD do not apply to pretrial detainees). cert. denied, 114 S. Ct. 575 (1993); UnitedStates v. Johnson, 953 F.2d 1167 (9th Cir. 1992), cert. denied, 113 S. Ct. 226 (1992); Unit-ed States v. Hart, 933 F.2d 80 (1st Cir. 1991); United States v. Muhammad, 948 F.2d 1449(6th Cir. 1991). cert. denied, 112 S. Ct. 1239 (1992); United States v. Castor. 937 F.2d 293(7th Cir. 1991); United States v. Bayless. 940 F.2d 300 (8th Cir. 1991); United States v.Currier, 836 F.2d 11 (Ist Cir. 1987); United States v. Roy, 771 F.2d 54, 58 (2d Cir. 1985),cert. denied, 475 U.S. 1110 (1986); United States v. Glasgow, 790 F.2d 446, 448 (6th Cir.1985). cert. denied. 475 U.S. 1124 (1986); United States v. Wilson, 719 F.2d 1491 (10thCir. 1983); United States v. Reed. 620 F.2d 709, 711 (9th Cir. 1980), cert. denied, 449 U.S.880 (1980); United States v. Milhollan, 599 F.2d 518. 528 (3d Cir. 1979), cert. denied. 444U.S. 909 (1979); United States v. Harris. 566 F.2d 610 (8th Cir. 1977); United States v.Roberts, 548 F.2d 665 (6th Cir. 1977), cert. denied, 431 U.S. 931 (1977); United States v.Maldonado, 601 F. Supp. 502 (D. W. Va. 1985); People v. Garner, 274 Cal. Rptr. 298 (Cal.Ct. App. 1990); State ex rel. Kindred v. Hamilton Superior Court, 525 N.E.2d 339 (Ind.1988); Daher v. State. 572 N.E.2d 1304 (Ind. Ct. App. 1991); People v. Wilden, -496N.W.2d 801. 804 (Mich. Ct. App. 1992) (lAD does not apply to pretrial detainees becausedetainee has not actually "entered upon a term of imprisonment"), appeal denied. 505N.W.2d 580 (Mich. 1993); Leisure v. State, 828 S.W.2d 872 (Mo. 1992), cert. denied, 113S. Ct. 343 (1992); State v. Smith, 858 P.2d 416, 418 (N.M. Ct. App. 1992) (IAD does notapply where person is in custody on accusation that he committed a crime), cert. denied,858 P.2d 1274 (N.M. 1993).

43. 620 F.2d 709 (9th Cir. 1980). cert. denied. 449 U.S. 880 (1980).44. Reed, 620 F.2d at 711 (quoting United States v. Milhollan. 599 F.2d 518. 528 (3d

Cir. 1979), cert. denied. 444 U.S. 909 (1979)). Similarly, the Nevada Supreme Court hasheld that a detainer lodged against a prisoner serving a term of imprisonment in a jail doesnot come within the meaning of "penal or correctional institution" and thus does not invokethe lAD. State v. Wade, 772 P.2d 1291, 1292-93 (Nev. 1989). The court reasoned that thepurpose of the IAD, to avoid uncertainty which obstructs treatment and rehabilitation pro-grams, is not advanced by application to a prisoner in jail because a jail does not offer suchprograms. Id.; see also Dorsey v. State. 490 N.E.2d 260 (Ind. 1986); State v. Breen, 882P.2d 472, 474 (Ind. Ct. App. 1994); People v. Reilly, 527 N.Y.S.2d 234 (N.Y. Sup. Ct.1988) (Metropolitan Correctional Center did not qualify). Cf. United States v. Browner, 937F.2d 165 (5th Cir. 1991) (declining to follow Dorsey v. State, 490 N.E.2d 260 (Ind. 1986)):Escalanto v. Superior Court. 799 P.2d 5 (Ariz. Ct. App. 1990) (county jail qualified as "pe-nal or correctional institution" within the meaning of the IAD).


detainee awaiting trial in a local jail does not have a sufficient inter-est in the confining institution's rehabilitative programs to justify in-vocation of the IAD.45

F. Sentencing Detainers

Is a prisoner subject to the IAD's Article III "any untried indict-ment, information, or complaint" language, following conviction butbefore sentencing?46 Courts have reached varying results.47 InTinghitella v. State of California," the Ninth Circuit extended theIAD to include a convicted prisoner's request for resolution of sen-tences.49 The court stated that a trial does not stop with the verdict,but is concluded upon sentencing." As a result, the court concludedthat "trial" and "final disposition" encompass sentencing.5 The courtcombined the Sixth Amendment's speedy trial protections which ex-

45. Id. The Seventh Circuit Court of Appeals stated that a pretrial detainee before thecourt trying to invoke the provisions of the lAD "could not avail himself of them as he wasnot incarcerated at the time he was summoned into federal court." United States v. Castor,937 F.2d 293, 296 (7th Cir. 1991). However, a person incarcerated after a conviction andsentencing is an inmate serving a "term of imprisonment" even though the judgments ofconviction and sentence are on appeal. Jones v. Wyrick, 557 S.W.2d 250 (Mo. 1977). ThelAD is also intended to apply to situations "where a person, during the term of his impris-onment escapes from the custody of the authorities and commits a crime in a foreign statefor which he is serving a sentence." Thomlinson v. Liburdi, 380 A.2d 105, 108 (Conn. Su-per. Ct. 1977).

In interpreting the scope of the phrase "terms of imprisonment," another issue thatappears is whether a parolee can invoke the provisions of the IAD. The Seventh Circuit hasheld that once a prisoner is released on parole. the relevant "term of imprisonment" endedeven though the prisoner was still under the supervision of the state. United States v. Roy,830 F.2d 628, 632-33 (7th Cir. 1987), cert. denied, 484 U.S. 1068 (1988); see also FreresLumber Co. v. Davis, 812 P.2d 441 (Or. Ct. App. 1991). In addition, if a prisoner is re-leased from prison in the sending state before being brought to trial, the benefits of the lADare lost. See, e.g., State v. Butler, 496 So. 2d 916 (Fla. Ct. App. 1986); State v. Tarango.734 P.2d 1275 (N.M. Ct. App. 1987). cert. denied. 734 P.2d 761 (N.M. 1987), overruled byZurla v. State, 789 P.2d 588 (N.M. 1990).

46. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993). "Detainers lodged to obtain custo-dy for the purpose of serving a sentence are not within the scope of the agreement at all."Johnson v. Williams, 508 F. Supp. 52, 55 (D.N.J. 1980), afid, 666 F.2d 842 (3d Cir. 1981);see also State v. Robbins, 590 A.2d 1133, 1139 (N.J. 1991) (detainers lodged to obtaincustody of prisoner for completion of a sentencing rather than to face pending criminalcharges does not invoke the IAD).

47. Moody v. Corsentino. 843 P.2d at 1369.48. 718 F.2d 308 (9th Cir. 1983).49. Tinghitella, 718 F.2d at 311.50. Id.51. Id.


tend to sentencing, and the IAD language that the IAD should be lib-erally construed to hold that sentencing detainers are within the1AD's coverage. 2

The Colorado Supreme Court's decision in Moody v.Corsentino 3 represents the majority view-a detainer placed againsta prisoner based on unresolved sentencing determinations in anotherjurisdiction does not trigger the provisions of the IAD 4 The courtexamined the policies behind the IAD and found that disposition of asentencing detainer is likely to have little effect on either the termsof the inmate's prison treatment or rehabilitation.5 As a result, "theuncertainty caused by the delay in sentencing is minimal when com-pared with the uncertainty resulting from untried charges."56 Themajority view fails to consider the impact on the prisoner's psycho-logical outlook, knowing that a conviction has been rendered withoutimposition of a sentence. In addition, a promptly imposed sentencemay run concurrently with the sentence the inmate is serving in thesending state.57

G. Revocation Detainers

Prior to 1985, the lower courts were split on whether the scopeof the IAD included revocation detainers. Article III of the IAD ap-

52. M.; see also Hall v. State. 678 F. Supp. 858. 862 (M.D. Fla. 1987) (holding that an"untried indictment, information, or complaint" encompasses sentencing).

53. 843 P.2d 1355 (Colo. 1993).54. Moody, 843 P.2d at 1373 (citing People v. Mahan, 168 Cal. Rptr. 428, 430-31 (Cal.

Ct. App. 1980)); see also Bacon v. Magnusson, 727 F. Supp. 694 (D. Me. 1990); People v.Zetsche. 233 Cal. Rptr. 720, 723 (Cal. Ct. App. 1987); People v. Castoe, 150 Cal. Rptr.237, 238-40 (Cal. Ct. App. 1978) (IAD inapplicable to request for sentencing); People v.Barnes, 287 N.W.2d 282 (Mich. Ct. App. 1979); State v. Sparks, 716 P.2d 253 (N.M. Ct.App. 1986), cert. denied, 715 P.2d 71 (N.M. 1986); People v. Randolph, 381 N.Y.S.2d 192(N.Y. Sup. Ct. 1976); State v. Barnes, 471 N.E.2d 514 (Ohio Ct. App. 1984); State v.Barefield, 756 P.2d 731 (Wash. 1988). Cf. Walker v. King, 448 F. Supp. 580 (S.D.N.Y.1978) (Article In1(d) requires a state to pronounce sentence prior to the return of the inmateto the original place of imprisonment). An "unknown sentence can create anxieties as severeas those caused by a pending indictment." Id. at 585. All matters pertaining to the chargemust be resolved before the inmate is returned to minimize interruptions in the inmate's cor-rectional program. "Failure to include the sentence as part of the trial process under the[IAD] will prevent the imposition of a concurrent sentence." Id. at 587.

55. Moody v. Corsentino, 843 P.2d at 1371.56. Id. (citing People v. Barnes, 287 N.W.2d 282, 283 (Mich. Ct. App. 1979)).57. In addition, in People v. Rhoden, 265 Cal. Rptr. 355 (Cal. Ct. App. 1989), the court

held that a prisoner was not serving a term of imprisonment until the court denied theprisoner's request for new trial. Id. at 358.

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plies to a person who "has entered upon a term of imprisonment in apenal or correctional institution" and Article IV refers to an inmate"who is serving a term of imprisonment." "Term of imprisonment"means a period of actual physical confinement following a convic-tion-that is, serving a sentence.58 Due to differing interpretations inlower courts,59 the United States Supreme Court resolved the con-flict in Carchman v. Nash.60

The Article III phrase "any untried indictment, information, orcomplaint" refers to criminal charges pending against a prisoner, notprobation violation charges.6t In Carchman, the Supreme Court heldthat "[a] probation violation charge, which does not accuse an indi-vidual with having committed a criminal offense in the sense of ini-tiating a prosecution . . . does not come within the terms of ArticleIII. "62 The Court found that the abuses and uncertainties associated

58. United States v. Roberts, 548 F.2d 665 (6th Cir. 1977), cert. denied sub nom. Wil-liams v. United States, 431 U.S. 920 (1977).

59. See, e.g., United States v. Roach, 745 F.2d 1252 (9th Cir. 1984), cert. denied, 474U.S. 835 (1984) (charge of probation violation was not subject to speedy trial provision ofthe lAD); Padilla v. State, 648 S.W.2d 797 (Ark. 1983) (charge of violation of probationwas not an untried indictment, information, or complaint within the meaning of the IAD);Subervi v. Miller, 555 So. 2d 452 (Fla. Ct. App. 1990) (detainer based on probation viola-tion charge does not entitle prisoner to the benefit of the IAD); Suggs v. Hopper, 215S.E.2d 246 (Ga. 1975) (IAD provision does not apply to warrants for arrest for probationviolations); People v. Carter, 549 N.E.2d 763 (III. Ct. App. 1989) (detention on federal pa-role violation was not a "term of imprisonment" within the meaning of the IAD). appealdenied, 553 N.E.2d 398 (I11. 1990); Clipper v. State, 455 A.2d 973 (Md. 1983) (detainerlodged against prisoner for violation of probation was not untried indictment, information, orcomplaint so as to activate IAD); State v. Knowles, 270 S.E.2d 133 (S.C. 1980) (permanentbench warrant for return of defendant to custody after conditional revocation of probationhad been imposed did not constitute an "untried indictment, information, or complaint").

60. 473 U.S. 716 (1985).61. See, e.g., Rackley v. State, 814 P.2d 1048 (Okla. Ct. App. 1991); Bush v. Canary,

286 N.W.2d 536 (S.D. 1979). In Carchnan v. Nash, the Supreme Court interpreted thewords "indictment," "information," and "complaint." to refer to a document charging anindividual with having committed a criminal offense, and "untried" to refer to matters thatcould be brought to full trial. Carchnan, 473 U.S. at 724. However, under United States v.Roy. 771 F.2d 54 (2d Cir. 1985), cert. denied, 475 U.S. 1110 (1986), a defendant whoseparole for a prior conviction has been revoked and against whom additional charges arepending has an interest in rehabilitation and is serving a "term of imprisonment" per thelAD. Id. at 57-58; see also United States v. Saffeels, 982 F.2d 1199 (8th Cir. 1992). cert.granted and judgment vacated, 114 S. Ct. 41 (1993).

62. Carchmnan, 473 U.S. at 725. For recent discussion, see People v. Brown. 854 P.2d1332, 1336 (Colo. Ct. App. 1993) (time spent awaiting a revocation hearing is not a "termof imprisonment" and does not trigger application of the Act), cert. denied. 1993 Colo.LEXIS 625 (Colo. July 12, 1993): Swain v. State. 841 P.2d 448 (Idaho Ct. App. 1992):State ex rel. Kindred v. Hamilton Superior Court Room Two, 525 N.E.2d 339 (Ind. 1988);


with additional charge detainers, which motivated the adoption of theIAD, do not generally occur in the detainers for a probation viola-tion.63 Moreover, whether the "procedures of Article III are the mostappropriate means of disposing of probation-violation detainers arequestions of legislative judgment that we must leave to the parties tothe Agreement."'64

H. Detainers as a Habeas Corpus Issue

A current controversy focuses on whether violations of the IADare cognizable in federal habeas corpus proceedings. Federal habeascorpus is the proper remedy when an inmate challenges the fact,duration, or legality of an incarceration.65 Until the recent SupremeCourt decision of Reed v. Farley,' the majority of the circuits hadconcluded that a violation of the IAD, without more, did not state aclaim for relief.67

In Reed, the Supreme Court relied on its precedent in concludingthat for non-constitutional federal claims, such as a trial court's fail-ure to comply with the IAD, the allegation must qualify as a "'fun-damental defect which inherently results in a complete miscarriage ofjustice, [or] an omission inconsistent with the rudimentary demandsof fair procedure."' 68 Alleged violations of the IAD are not "funda-mental defects" indicating a "miscarriage of justice."'69

State v. McDonald, 825 P.2d 238 (N.M. Ct. App. 1991). cert. denied, 822 P.2d 1127 (N.M.1992); White v. State, 763 P.2d 718 (Okla. Ct. App. 1988); State v. Warren, 740 S.W.2d427 (Tenn. Ct. App. 1986); State v. Kahl, 814 P.2d 1151 (Utah Ct. App. 1991). cert. de-nied, 843 P.2d 516 (Utah 1992); Heffernan v. State, 824 P.2d 1271 (Wyo. 1992).

63. Carclnan, 473 U.S. at 731. The uncertainties in criminal charges such as the likeli-hood of a prisoner receiving an additional sentence and the length of the incarceration aregenerally reduced in the case of probation-violation detainers due to the fact that the prisonerwill often be sentenced to serve the full term of the suspended sentence. Id. at 732.

64. Id. at 734.65. Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973).66. 114 S. Ct. 2291 (1994).67. See Reilly v. Warden, 947 F.2d 43, 44 (2d Cir. 1991), cert. denied, 112 S. Ct. 1227

(1992); Metheny v. Hamby, 835 F.2d 672 (6th Cir. 1987), cert. denied, 488 U.S. 913 (1988)(White, J., dissenting).

68. Reed, 14 S. Ct. at 2297 (quoting Hill v. United States, 368 U.S. 424. 428 (1962)).69. See generally id.; see also Knox v. Wyo. Dep't of Corrections State Penitentiary

Warden, 34 F.3d 964 (10th Cir. 1994) (failure of inmate to state lAD claim constitutedfundamental defect). The Seventh and Third Circuits, however, rejected the majority view,holding that a denial of rights under the IAD is a violation of federal law cognizable in fed-eral habeas proceedings. See United States v. Williams. 615 F.2d 585. 590-91 (3d Cir.1989); Webb v. Keohane, 804 F.2d 413, 414 (7th Cir. 1986). The Third Circuit, in United


III. NARROWING THE APPLICATION OF THE IAD

During the past twenty-five years, courts have limited not onlythe availability of the IAD, but also its application. Despite the lan-guage of the IAD and the intent of its drafters, courts have createdexceptions to IAD provisions. Moreover, in circumstances where thelanguage is not as clear as it could have been, courts have refused tosupport the IAD's underlying rationale-to assist inmates in resolvinguntried charges. The following discussion focuses on the issues wherecourts have narrowed the application of the IAD.

A. Filing a Detainer

A detainer is a written notification sent to an inmate's custodianthat charges are pending in another state. In order to trigger the ap-plication of the IAD, it is necessary for a detainer to be filed.7"

States v. Williams, 615 F.2d 585 (3rd Cir. 1980), stated that "[w]e find the approach takenby our sister circuits troubling in light of the language of [the IADI itself." Id. at 589.According to the Court, Congress chose to make the defense absolute when the governmentviolates the IAD; therefore the court held that it is precisely the "exceptional circumstances"making habeas relief under 28 U.S.C. § 2255 appropriate. Id. at 590.

The Ninth Circuit adopted some lAD violations as cognizable in federal habeas; how-ever, the court declined to place others under the coverage of the federal habeas proceeding.See Carlson v. Hong, 707 F.2d 367, 368 (9th Cir. 1983): Cody v. Morris, 623 F.2d 101.102 (9th Cir. 1980).

As a result of the split of authority in the circuits, Justice White advocated a grant ofcertiorari to resolve the issue. Metheny v. Hamby, 488 U.S. 913, 913-14 (1988) (White, J.,dissenting), denying cert. to 835 F.2d 672 (1987).

70. See Bums v. State. 523 So. 2d 604, 606 (Fla. Ct. App. 1987) (request for finaldisposition not effective until detainer is lodged); People v. Hood, 583 N.E.2d 1173 (11. Ct.App. 1991) (same), appeal denied, 591 N.E.2d 27 (Ill. 1992); see also State v. Anderson,855 P.2d 671, 676 (Wash. 1993) (IAD does not require prosecuting authorities to file adetainer against a prisoner with outstanding charge: lAD is not invoked until detainer isfiled).

Questions sometimes arise concerning what constitutes a detainer. See, e.g., UnitedStates v. Gonzalez-Mendoza, 985 F.2d 1014 (9th Cir. 1993) (court detainer filed by theImmigration and Naturalization Service with state authority does not fall within the terms ofthe IAD): Harper v. State, 865 S.W.2d 647. 648 (Ark. 1993) (state's notice to federal au-thorities stating that prisoner should be returned to state custody after completion of federalsentence was not a detainer as defined by law. definition of detainer does not include noticethat prisoner has a sentence to serve in a foreign jurisdiction); Drescher v. Superior Court,267 Cal. Rptr. 661. 664 (Cal. Ct. App. 1990) (extradition requisition not a detainer); Tuckerv. United States, 569 A.2d 162. 165-66 (D.C. Ct. App. 1990) (arrest warrants left with localpolice do not constitute detainer; court examines whether official intended document to be adetainer and whether the inmate will suffer prejudice if the document is treated as a detain-


Who legally may file a detainer? Article III provides no explicitanswers, and the IAD nowhere clearly designates who is entitled orrequired to lodge a detainer. Article IV(a), however, states that the"appropriate officer of the jurisdiction in which an untried [charge] ispending shall be entitled to have a prisoner against whom he haslodged a detainer" returned for trial.7' Article III(a) and (d) make itclear that the prosecutor is the "appropriate officer" under ArticleIV(a). In practice, however, the fact that a court clerk, the police orsheriff's department actually files the detainer is not fatal unless aninmate can show a violation of fundamental rights.'2

B. Prompt Notification

When a certified copy of the charging document is delivered witha letter or form to the prison, it is filed as a detainer at a designatedplace in the inmate's legal file. An entry is also made recording thereceipt of the detainer, the underlying charge, and the date it is filed.The prison records office then informs the inmate, and in IAD juris-dictions, the inmate usually signs a form acknowledging notificationof the detainer."

What happens if officials delay notifying the inmate? The failure

er); Street v. State, 438 S.E.2d 693, 694 (Ga. Ct. App. 1993) (A "detainer is 'a writteninstrument executed by the prosecuting officer of a court and filed with the department re-questing that the department retain custody of an inmate pending delivery of the inmate tothe proper authorities to stand trial."' Because the order in this case was issued by the trialjudge and not the prosecuting officer, no detainer existed under the LAD.); State v. Russell.617 P.2d 84, 89 (Haw. 1980) (prosecutor's letter not a detainer); People v. Gallego. 502N.W.2d 358, 362 (Mich. Ct. App. 1993) (a hold placed in the Law Enforcement InformationNetwork system that is not acknowledged by the sender or recipient as a detainer is insuffi-cient to activate the IAD): Little v. Graff. 507 N.W.2d 55, 60 (N.D. 1993) (summons issuedin other state in connection with charges was not a detainer); Locklear v. Commonwealth,376 S.E.2d 793 (Va. Ct. App. 1989) (extradition request not a detainer). For further discus-sion of what constitutes a detainer. see supra note 12.

71. Interstate Agreement on Detainers Act. 18 U.S.C.A. app. 2. § 2, art. IV(a) (1985).72. State ex reL Gamer v. Gray, 208 N.W.2d 161, 165-66 (Wis. 1973).73. Article 111(c) of the lAD states: "The warden, commissioner of corrections, or other

official having custody of the prisoner shall promptly inform him of the source and contentsof any detainer lodged against him and shall also inform him of his right to make a requestfor final disposition of the [charge]." Interstate Agreement on Detainers Act, 18 U.S.C.A.app. 2. § 2. art. 111(c) (1985). As a matter of custom and practice, prison officials notify in-mates whenever additional charge detainers are filed.

The form usually recites the identity of the filing locale, the nature of the charge, anacknowledgment by the inmate that he has been advised of the right to a speedy trial undereither state statute or the state constitution, and that the inmate may request that an applica-tion for trial be sent to the appropriate prosecutor.

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of the custodian to notify an inmate about the filing of a detainercannot be condoned.74 In Sweaney v. District Court, Eighteenth Ju-dicial District,75 the Colorado Supreme Court held that the sendingstate violated the prompt notification requirement of Article 111(c) ofthe IAD,76 but ruled that the power to dismiss charges for a viola-tion of that requirement belongs to the receiving state alone."

74. Baity v. Ciccone, 379 F. Supp. 552. 560 n.10 (W.D. Mo. 1974), appeal dismissed,507 F.2d 717 (8th Cir. 1974): see also State v. Davis, 849 P.2d 1283, 1286 (Wash. Ct.App. 1993) (Montana and Washington law both require that the warden promptly inform aprisoner of any detainer lodged against him and inform him of his right to make his requestfor final disposition of the indictment).

Unlike the Uniform Mandatory Disposition of Detainers Act, the IAD has no sanctionfor failure to timely notify an inmate about a detainer. The Missouri Court of Appeals, inState v. Reynolds, 813 S.W.2d 324 (Mo. Ct. App. 1991), held that a prisoner informedabout a detainer by officials between II and 15 months after receipt of the detainer byofficials was properly notified. Id. at 325. The court of appeals held that the IAD and theintrastate disposition of detainers law must be considered together. /d. (citing State ex rel.Kemp v. Hodge. 629 S.W.2d 353, 359 (Mo. 1982) (en banc)). Under the intrastate disposi-tion of detainers law, the Director of Corrections has one year to inform an inmate of anyuntried indictments. Id. at 325: see also People v. Zetsche. 233 Cal. Rptr. 720, 724 (Cal. Ct.App. 1987) (failure of custodian to promptly notify prisoner of detainer does not warrantsanctions because IAD does not expressly provide sanctions for Article III violations); Peoplev. Marshall, 428 N.W.2d 39, 42 (Mich. Ct. App. 1988) (no sanctions for failure to notifyprisoner of detainer).

75. 713 P.2d 914 (Colo. 1986).76. Snreaney, 713 P.2d at 917. Article 111(c) provides that:

The warden, commissioner of corrections, or other official having custody ofthe prisoner shall promptly inform him of the source and contents of anydetainer lodged against him and shall also inform him of his right to make arequest for final disposition of the indictment, information, or complaint onwhich the detainer is based.

Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2. § 2, art. 111(c) (1985).77. Id.; see also Dodson v. Cooper, 705 P.2d 500 (Colo. 1985), cert. denied, 474 U.S.

944 (1985). The Sweaney court further stated that the prisoner is entitled to automatic dis-missal of the charges underlying the detainer as a sanction for violation of the prompt notifi-cation requirement where the prosecution can show lack of prejudice to the defendant as aresult of the violation. Sweaney, 713 P.2d at 918: see also People v. Johnson, 819 P.2d1114, 1115 (Colo. Ct. App. 1991). It is necessary that the defendant assert some claim ofprejudice to have the issue determined. For example, deprivation of the possible benefit ofconcurrent sentences, denial of privileges or rehabilitative treatment in the sending state, orright to fair trial was affected by the delay of notification may indicate prejudice to theprisoner. Johnson, 819 P.2d at 1115-16.

The receiving jurisdiction may be bound by the failure of the sending jurisdiction toforward the prisoner's request. Commonwealth v. Martens, 500 N.E.2d 282, 283-84 (Mass.1986). When the defendant has shown that she complied with the lAD and the evidenceshows that the sending jurisdiction forwarded the request for final disposition, the receivingstate must bear the risk of misplacing the documents. United States v. Smith. 696 F. Supp.1381, 1383-85 (D. Or. 1988); People v. Marshall, 428 N.W.2d 39. 42 (Mich. Ct. App.


C. hInzmate Requests for Final Disposition of the Charge UnderArticle III

Article III of the IAD is the operative section by which an in-mate can request a final disposition of the charge underlying thedetainer. Under Article III(c), corrections officials must notify aninmate immediately after a detainer is lodged and inform the inmateof their rights under the IAD.78 Article III gives the inmate the rightto demand trial on the charge underlying the detainer. After a de-mand is made, the inmate's custodian must offer custody of the in-mate to the authorities that filed the detainer.79 If they refuse to ac-cept custody, the charge underlying the detainer must be dismissedwith prejudice." If they accept custody, they must try the inmatewithin 180 days, unless a continuance is granted in open court.8 '

1. Request for Final Disposition

An inmate may decide to seek a prompt disposition of the chargefor reasons only partially related to its effects. First, he may demanda prompt disposition as an expression of confidence in his innocenceand thereby "call the prosecutor's bluff."82 Second, a sophisticatedinmate may demand a final disposition of the charge on the theorythat the prosecutor has filed charges automatically upon learning theinmate's location without regard to the amount of proof necessary fora conviction or the cost of returning the inmate for trial.8 Third,when an inmate immediately demands a speedy disposition, he maybe unaware of alternative strategies for responding to the charge, e.g.,contacting the prosecutor to make an offer of restitution in a theft

1988).78. For the text of Article 111(c), see supra note 76.79. See Interstate Agreement on Detainers Act. 18 U.S.C.A. app. 2, § 2, art. V(a) (1985).80. Id. § 2, art. V(c).81. I. § 2, art. Ill(a).82. The inmate here feels that the prosecutor will be unable to prove his guilt, and the

inmate is calling for trial at an earlier time than the prosecutor may prefer. By contrast, ifthe inmate is reasonably certain of conviction on the new charge, he may be in no hurry todemand a speedy disposition.

83. The inmate is testing the prosecutor's sincerity by forcing a choice between dismiss-ing the charge or spending a substantial amount of money to return the inmate for trial onwhat may be a relatively minor charge. On the other hand, when the inmate is aware thatthe police have been in pursuit, it is probably counterproductive to challenge thegovernment's sincerity by demanding a prompt trial.

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case in lieu of prosecution. Fourth, because prison is a monotonousexperience, an inmate may request a speedy disposition for variety,without understanding that additional prison time may result.8" Final-ly, when the IAD applies and more than one prosecutor within astate has filed charges, an inmate may decide not to request a speedydisposition on any of the charges. He may desire a prompt resolutionof some but not all of the charges within that jurisdiction."

Once an inmate is notified about the filing of a detainer, Article111(b) provides that the inmate shall give or send written notice andrequest for final disposition of the charge to the prison officials hav-ing custody of the inmate."+' Some courts have emphasized that aninmate must process the request through the channels prescribed bythe IAD. First, the communication must be a written request for finaldisposition." The proper form from the prison is the best evidenceof a written request. Letters written by inmates to the custodian,requesting information about how to dispose of charges that are thesubject of detainers, are not demands for final disposition under theIAD." Second, the inmate cannot place conditions on the demand inthe written request. For example, the inmate cannot protest extradi-tion, because a request under the IAD is deemed to be a waiver ofextradition under Article 111(e)." Third, the request must be sent to

84. Consultation with private counsel, correctional legal services personnel, or a socialservice worker is advisable before such a step should be taken.

85. For example, if an inmate recently began serving a five year term, he may be will-ing to plead guilty to charges that carry a term of less than five years if the new sentencecan run concurrently with the current term. But that inmate may want to avoid trial onanother charge which carries a maximum penalty of twenty years. Article 111(d) of the IADprovides that "any request for final disposition made by a prisoner ... shall operate as arequest for final disposition of all untried" charges that have been lodged against him "fromthe State to whose prosecuting official the request for final disposition is specifically direct-ed." Interstate Agreement on Detainers Act. 18 U.S.C.A. app. 2, § 2. art. V(a) (1985). Thus.the inmate's custodian is obligated to inform all prosecutors and courts from the filing stateabout the request for speedy disposition. Those officials must give the inmate a trial whilein their state, or the charges will be dismissed with prejudice. Therefore, if the inmate doesnot want to give prosecutors the opportunity to convict on the charges they have filed. heshould not request a prompt disposition of anY of that state's charges.

86. See Interstate Agreement on Detainers Act. 18 U.S.C.A. app. 2, § 2. art. lit(b)(1985).

87. See. e.g., Turner v. State, 584 So. 2d 925 (Ala. Ct. App. 1991) (oral request thatdetainer forms be sent is insufficient).

88. People v. Uplinger. 370 N.E.2d 1054 (111. 1977).89. See Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2. art. 111(e)

(1985); see also Franks v. Johnson, 401 F. Supp. 669. 672 (E.D. Mich. 1975). Cf People v.Uplinger. 370 N.E.2d 1054 (I11. 1977).

[Vol. 21:1


the inmate's custodian." Strict compliance is mandated under ArticleIII: "'[C]ourts have generally required that prisoners must strictlycomply with the IAD procedures before they will dismiss charges onthe basis of violation of [the 180-day provision of] Article III. 1

Case law also indicates what does not constitute a satisfactoryrequest for prompt disposition. An inmate's letter requesting the con-fining state's governor to deny another state's request for temporarycustody is not a proper request.9 - A letter from the inmate maileddirectly to the court clerk93 or to the prosecutor' fails to comply

90. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2, art. Ill(b) (1985)("The written notice and request ... shall be given or sent by the prisoner to the warden,commissioner of corrections, or other official having custody of him ...."); see also Unit-ed States v. Henson, 945 F.2d 430, 436 (Ist Cir. 1991) (inmate failed to cause a writtenrequest for final disposition to be delivered to the appropriate prosecuting official or the ap-propriate custodian; as a result, no violation of the IAD occurred); United States v. Espinoza,841 F.2d 326, 329 (9th Cir. 1988), opinion superseded, 866 F.2d 1067 (9th Cir. 1988) (peti-tioner failed to forward certification of inmate status to court or prosecutor and failed tochannel request through prison official: therefore, no violation of the IAD): Johnson v.Stagner, 781 F.2d 758, 762 (9th Cir. 1986) (inmate did not notify prosecutor, caused noinmate status certificate to be sent, and did not channel request through prison officials);Ellis v. Commonwealth, 828 S.W.2d 360, 360-61 (Ky. 1992) (motion made no reference tothe lAD or its time limitation; no compliance with requirement that request for final disposi-tion be accompanied by certificate from appropriate official having custody detaining infor-mation as to prison term in sending state; therefore, no violation of the IAD).

91. Casper v. Ryan, 822 F.2d 1283, 1292 (3d Cir. 1987), cert. denied, 484 U.S. 1012(1988) (quoting Nash v. Jeffes, 739 F.2d 878, 884 (3d Cir. 1984), rev'd on other groundssub nom. Carchman v. Nash, 473 U.S. 716 (1985)). In order to invoke the lAD under Arti-cle Ill, the prisoner has an affirmative duty to make a written request for final disposition.Queenel v. Meese, 656 F. Supp. 130 (N.D. Cal. 1986); McCrary v. Scully, 544 N.Y.S.2d852 (N.Y. Sup. Ct. 1989).

92. See People v. Wolever, 356 N.E.2d 611 (III. Ct. App. 1976). Cf. State v. Cox, 505P.2d 360 (Or. Ct. App. 1973).

93. See, e.g., Thurman v. State. 597 A.2d 997 (Md. Ct. Spec. App. 1991) (request forfinal disposition of charges does not invoke the provisions of the lAD where the insideaddress on the letter is addressed to "state of Maryland. Prosecuting Officers, and Courts ofJurisdiction" and the envelope is addressed only to the County Circuit Court), cert. denied.601 A.2d 130 (Md. 1992); State v. Wolfe, 821 P.2d 339. 343-44 (Mont. 1991) (inmatefailed to trigger the lAD's 180-day speedy trial provision when he bypassed prison officialsand sent his request only to the district court and not to the prosecuting officer; once pris-oner bypasses prison officials and proceeds on his own to comply with lAD notice proce-dure, prisoner assumes burden for any deficiencies of notice); State v. Smith, 858 P.2d 416,420 (N.M. Ct. App. 1993) (defendant's writing to state judge requesting IAD processingfailed to constitute actual knowledge where defendant did not notify appropriate officials thatdefendant was then incarcerated in an out-of-state prison), cert. denied, 858 P.2d 1274 (N.M.1993); State v. York, 583 N.E.2d 1046, 1049 (Ohio Ct. App. 1990) (letter to court re-questing final disposition which was not accompanied by a certificate of inmate status nordirected to the prosecuting official did not comply with the lAD; therefore, no violation ofthe lAD).

94. See, e.g., Casper v. Ryan, 822 F.2d 1283 (3d Cir. 1987) (letter to the prosecuting


with the IAD and may render it inoperative. A letter from an inmategiving notice of his place of incarceration does not put the prosecutoron notice that the inmate is invoking the provisions of the IAD.95 Amotion by the inmate or counsel for a speedy trial also fails to in-voke the Article III procedures.96 The failure to comply ischargeable to the defendant until proper notice is sent to the custodi-an. Ongoing negotiations between counsel and prosecuting authoritiesdo not excuse the duty of the inmate to execute the forms receivedfrom the prison officials to assert rights under Article III. 9"

According to the Third Circuit, in Casper v. Ryan,9 persuasivereasons exist for requiring a prisoner to comply with the proceduresrequired by Article 111(a). 99 "'[T]he prosecuting authorities cannot beexpected to analyze each communication from a prisoner with a fine-tooth comb to determine whether it should be construed as invokingthe IAD.""' Therefore, use of the proper request form puts the re-ceiving jurisdiction on notice that Article III has been invoked."" Ifa premature communication, or one which is misdirected or fails tocontain the proper information required by the provisions of the IADwere considered sufficient to trigger the time limit, it "could create 'atrap for unwary prosecuting officials.""1011

2

attorney's office in the receiving state was not an adequate substitute for the required certifi-cate because it did not contain all information required under Article 111), cert. denied, 484U.S. 1012 (1988); People v. Fisher, 234 Cal. Rptr. 16 (Cal. Ct. App. 1987) (letter sent di-rectly to prosecutor legally insufficient); People v. Gallego, 502 N.W.2d 358, 361-62 (Mich.Ct. App. 1993) (informal letter from defense counsel to prosecutor's office is insufficient totrigger the 180-day provision of the IAD; letter was not sent to the court; the request wasnot accompanied by a certificate of the official having custody of defendant stating the termof commitment, time served, time remaining to be served, good time earned, and paroleeligibility; letter did not even clearly inform prosecution that defendant was invoking theIAD right); State v. Brockington, 215 A.2d 362 (N.J. Super. Ct. 1985): People v. Primmer,399 N.Y.S.2d 478 (N.Y. Super. Ct. 1977). aff'd, 389 N.E.2d 1070 (N.Y. 1979).

95. State v. Schrimer, 409 S.E.2d 704, 706 (N.C. Ct. App. 1991).96. People v. Beamon, 268 N.W.2d 310 (Mich. Ct. App. 1978); People v. Butcher, 207

N.W.2d 430 (Mich. Ct. App. 1973); State v. Howell, 818 S.W.2d 681. 682-83 (Mo. Ct.App. 1991) (pretrial motion for discovery and change of venue by prisoner did not complywith the notice provision of the IAD and thereby did not give anyone notice of the desireto invoke the lAD time limitation; therefore, no violation of the lAD).

97. Edmond v. Mich. Dep't of Corrections, 259 N.W.2d 423 (Mich. Ct. App. 1977).98. 822 F.2d 1283 (3d Cir. 1987), cert. denied, 484 U.S. 1012 (1988).99. Casper, 822 F.2d at 1292.

100. Id. at 1292-93 (quoting Nash v. Jeffes. 739 F.2d 878, 884 (3d Cir. 1984)).101. Id. at 1292.102. d. at 1293 (quoting Nash, 739 F.2d at 884); see also United States v. Henson, 945

F.2d 430, 434 (1st Cir. 1991). A few courts have been more flexible in construing the


2. Processing the Request

According to Article III(b) of the IAD, the inmate's custodian isto "promptly forward" the request for final disposition "together withthe certificate to the appropriate prosecuting officials and court byregistered or certified mail, return receipt requested."' 3 In addition,

meaning of the term "request" and ignored the requirement that the request be forwarded inwriting to the inmate's custodian. See State v. Tarango, 734 P.2d 1275, 1279-80 (N.M. Ct.App. 1987), cert. denied, 734 P.2d 761 (N.M. 1987). The Tarango court is more forgivingof the prisoner who attempts to communicate directly with the prosecutor. Under Tarango.such an attempt would not bar application of the IAD; however, absent actual notice to thereceiving state, the prisoner will bear the burden of showing "substantial compliance" withthe procedures of the IAD. Id. at 1280. Substantial compliance means that the prisoner mustfile the proper documents, including the certificate of inmate status, with the appropriateprosecuting officer and court using registered or certified mail, return receipt requested. If theprisoner does not meet the substantial compliance test, the lAD is not invoked. Id.; see alsoNewcomb v. State, 779 P.2d 1240, 1244 (Alaska Ct. App. 1989) (defendant bears burden ofproving substantial compliance).

In one case, the inmate's letter to the other state's prosecutor requesting a bill ofparticulars and referring to the Sixth Amendment right to speedy trial was sufficient to com-ply with the lAD. Rainey v. Mich. Dep't of Corrections, 199 N.W.2d 829 (Mich. Ct. App.1972). The court limited its broad construction to the instant case. Id. at 831; see also Stateex rel. Saxton v. Moore, 598 S.W.2d 586 (Mo. Ct. App. 1980) (good faith effort to complywith the IAD by filling out and returning three separate documents as requested byprosecution's office and communication from the prosecutor's office that receipt of the re-quested forms would invoke the lAD time limitation rendered the IAD notice provisionsoperative as to the prisoner; court found that the state waived requirement of written notice).

To insure that the inmate understands the nature of a request and the fact that it mustbe sent to the custodian, prison officials should be required to advise the inmate orally andin writing of the proper procedure. The form currently used to notify an inmate of a detain-er is ambiguous as to how one is to proceed. While it informs the inmate of the right tonotify the records office to request a final disposition, nowhere does the form state that theinmate must make a written request to the records office. This may be the reason that somecourts have viewed a written request directly to the prosecutor as "substantial compliance"with the lAD. See Torres-Arboledo v. State, 524 So. 2d 403, 412 (Fla. 1988) (substantialcompliance requires a good faith effort to bring oneself within the IAD and to provide ev-erything necessary for operation of IAD; however, substantial compliance is not possibleabsent actual notice to receiving authorities unless there is clear failure of sending authoritiesto fulfill obligation under lAD), cert. denied, 488 U.S. 901 (1988); see also State v. Jenkins.778 S.W.2d 815. 816-17 (Mo. Ct. App. 1989) (both prosecutor and court must receiveprisoner's demand to start running of 180-day period; when prisoner mistakenly sends bothcopies to court, 180-day period does not begin until prosecution sends back agreement toaccept temporary custody), cert. denied, 113 S. Ct. 321 (1992); State v. Martin, 765 P.2d854. 855 (Utah 1988) (Article III requires written notice to be delivered to both prosecutorand court). In State v. Smiley, 529 So. 2d 349 (Fla. Ct. App. 1988), the court held that aprisoner's pro se demand for final disposition is effective to the Article 1II 180-day deadlineeven though the prisoner is represented by counsel who is attempting to negotiate a pleabargain on the prisoner's behalf. Id. at 350-51.

103. Interstate Agreement on Detainers Act. 18 U.S.C.A. app. 2, § 2. art. 111(b) (1985).


Article V(a) requires that the custodian send an offer to deliver tem-porary custody of an inmate to the receiving state's prosecutor."

What are the consequences of a less than prompt delivery of theinmate's request for final disposition by the custodian to the prosecu-tor? Some courts have held that an inmate has only one obligationunder the IAD-to advise the custodian in writing of the request forfinal disposition of the charges. If an inmate satisfies that re-quirement, he is entitled to the benefits of the IAD. After all, theinmate has no power of supervision over prison officials." 5 If thedelay does not meet the language of the IAD, the inmate is entitledto dismissal of the charge without having to show prejudice or mis-conduct if the initial trial date is not within 180 days of the requestto the warden for final disposition."

Why should the prosecuting officials of the charging state bearthe brunt of another jurisdiction's failure to comply with the IAD?The answer seems to be that, as between the prosecutor and the in-mate, the prosecutor is "better situated than the inmate to see that therequirements of law are met."'' A prisoner should not be penalized

When the inmate communicates the request for prompt disposition directly to authorities inthe receiving state, compliance with the mailing requirements of Article Ill(a) is still neces-sary. Compare Burton v. State, 805 S.W.2d 564 (Tex. Ct. App. 1991) and State v. Grizzell,584 S.W.2d 678 (Tenn. Ct. App. 1979) itiih Casper v. Ryan, 822 F.2d 1283 (3d Cir. 1987),cert. denied, 484 U.S. 1012 (1988).

104. Article V(a) states:In response to a request made under article III or article IV hereof, the appro-priate authority in a sending State shall offer to deliver temporary custody ofsuch prisoner to the appropriate authority in the State where such indictment.information, or complaint is pending against such person in order that speedyand efficient disposition may be had.

Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2. art. V(a) (1985).105. In People v. Wilson, 138 Cal. Rptr. 259 (Cal. Ct. App. 1977). the court remanded a

case for a hearing to determine how a two month delay between the inmate's request andthe prosecutor's receipt of the request fares in light of the "promptly forward" language ofArticle 111(b). Id. at 262.

106.Common sense compels such a conclusion. Both the purpose and the expresslanguage of the Agreement are intended to promote the expeditious resolutionof detainers. This goal is too easily frustrated if the second state is not held toits obligation to promptly forward the certificate and inmate request. Absent theimplied requirement that this duty will be performed in a reasonable time, aninmate's rights under the Agreement would never mature if the sendingstate simply failed to comply with Article Ill.

Wilson, 138 Cal. Rptr. at 262. Accord Bursque v. Moore, 227 A.2d 255 (Conn. Super. Ct.1966).

107. Wilson, 138 Cal. Rptr. at 262 n.l. Contra Baker v. Schabin. 339 N.Y.S.2d 360 (N.Y.

[Vol. 21:1

19951 INTERSTATE AGREEMENT ON DETAINERS

if the prison officials fail to carry out their duties under the IAD.'"Failure of prison officials to meet their responsibilities under ArticleIll(b) and Article V(a) either (1) by not forwarding a certificateand/or an offer to deliver temporary custody with the inmate's re-quest by certified or registered mail; or (2) by not notifying the prop-er court and prosecutor"° should not defeat the inmate's rights ei-ther."

Likewise, failure of the prison to send the correct forms shouldnot inure to the inmate's detriment."' The purpose of requiring thatthe documentation of the request be delivered by certified or regis-tered mail "is to provide corroboration for bald assertions of havinggiven such notice and a means of tracing and establishing the date ofreceipt should a dispute concerning the delivery arise."" 2 However,

Sup. Ct. 1972).108. People v. Marshall, 428 N.W.2d 39, 42 (Mich. Ct. App. 1989); see also State v.

Tarango, 734 P.2d 1275, 1279-80 (N.M. Ct. App. 1987) (a prisoner need only transmit awritten request to custodian, but must be able to prove the request was made), cert. denied,734 P.2d 761 (N.M. 1987). overruled by Zurla v. State, 789 P.2d 588 (N.M. 1990). CfRhodes v. Schoen. 574 F.2d 968 (8th Cir. 1978) (delay of 61 days in forwarding aninmate's request for final disposition was permissible because his trial began within 180 daysof the time he delivered his request to his warden), cert. denied, 439 U.S. 868 (1978);Welch v. State, 528 So. 2d 1236, 1236-37 (Fla. Ct. App. 1988) (dereliction of sending stateirrelevant, receiving state entitled to more than 180 days unless it was at fault); Parrott v.State, 427 S.E.2d 276, 281 (Ga. Ct. App. 1993) (initial failure to forward the lAD demandto the proper court was the result of mistake by sending authorities, not by the receivingauthorities; therefore, the receiving state's right to try case should not be compromised by adelay occasioned by the sending state), cert. denied, 1993 Ga. LEXIS 297 (Ga. Mar. 18,1993); State v. Nearhood, 518 N.W.2d 165, 169-70 (Neb. Ct. App. 1994) (request not effec-tive when prison did not forward certificate); State v. Moore, 774 S.W.2d 590 (Tenn. 1989)(prisoner has responsibility for seeing request is delivered and failure of sending state toforward request is not chargeable to receiving state); State v. Barefield, 735 P.2d 1339,1346 (Wash. Ct. App. 1987) (failure of federal officials, for one year, to advise prisoner ofright to request final disposition of sentencing detainer and failure to forward the requestwhen made did not result in an lAD violation warranting sanction, because the action of theofficial came7 within no express provision of the lAD), appeal denied, 736 P.2d 731 (Wash.1988).

109. See. e.g., People v. Diaz, 406 N.Y.S.2d 239 (N.Y. Sup. Ct. 1978).110. See, e.g., Rockmore v. State. 519 P.2d 877 (Ariz. Ct. App. 1974); People v.

Esposito. 238 N.Y.S.2d 460 (Queens County Ct. 1960). Contra Issacs v. State. 358 A.2d 273(Md. Ct. Spec. App. 1976); see also Delgado v. Commonwealth. 428. S.E.2d 27, 32 (Va. Ct.App. 1993) (for dismissal due to failure to bring to trial within 180 days, inmate must provenot only that notice of the request for disposition has been received but also that the requestwas accompanied by a certificate of the appropriate official having custody).

11l. Cf. Hawkins-El v. Hawkins, 395 F. Supp. 827 (D. Md. 1975); State v. Moore, 774S.W.2d 590 (Tenn. 1989).

112. State v. Barnes, 328 A.2d 737, 746 (Md. 1974).


proof of actual notice may constitute substantial compliance with theIAD.

3. When Does the 180-Day Period Begin?

Article III(a) provides that an inmate must be brought to trialwithin 180 days after having caused to be delivered to the prosecutorand the court of the charging jurisdiction a request for a final dispo-sition of the charges filed against the inmate."3 If not tried withinthe 180-day time period, the charge must be dismissed with preju-dice. In computing the 180-day time period, when does it begin torun? Before the United States Supreme Court decision in Fex v.Michigan,"4 judicial opinion as to when the 180-day period beganto run varied, focusing on three different events: (1) when the inmatemade the written request for prompt disposition to the custodian;' 15

Given the problems identified in connection with processing inmate requests for promptdisposition, the IAD should be amended to require the inmate's custodian to prepare andforward the requisite forms within a short period of time, for example, five working days. tothe prosecutor and trial court in the prosecutor's jurisdiction.

113. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2. art. 111(a) (1985).After receiving the appropriate forms from the inmate and the inmate's custodian, the prose-cutor faces an important decision: should the inmate be returned for trial? Several factorsmay influence the choice which must be made quickly. First. if the prosecutor automaticallyfiles detainers against all inmates upon learning of their location, the prosecutor is probablyunaware of the details of the inmate's current sentence. The prosecutor may decide to seekdismissal of the charge or to withdraw the detainer if the inmate is already serving a longersentence than would be received upon conviction of the local charge. Whatever doubt theprosecutor may have about seeking a conviction may be resolved in favor of a trial if theinmate is not going to serve enough time on the current sentence to satisfy the prosecutorthat his jurisdiction's interests will be vindicated.

Second, the decision to return the inmate may be influenced by the fact that the filingstate must pay travel and other costs, i.e., the cost of two round trips for one or two depu-ties and one round trip for the inmate, plus expenses. A prosecutor in a financially poorcounty or state may withdraw the detainer after realizing the costs. Of course, the prosecutorwas probably aware of the economic situation before filing the charge.

114. 113 S. Ct. 1085 (1993).115. See, e.g., McCallum v. State, 407 So. 2d 865 (Ala. Crim. Ct. App. 1981); People v.

Trancoso. 776 P.2d 374 (Colo. 1989): Pittman v. State. 301 A.2d 509 (Del. 1973); People v.Dailey, 360 N.E.2d 1131 (I11. App. Ct. 1977); State v. Mourey, 597 N.E.2d 101 (Ohio1992): Lovitt v. Commonwealth, 592 S.W.2d 133 (Ky. 1979) (defendant complied with noti-fication procedures of the IAD when he turned over his claim to prison officials; burden fellon correctional officials to insure that proper procedures were followed); Commonwealth v.Martens, 500 N.E.2d 282 (Mass. 1986), cert. denied, 481 U.S. 1041 (1987); People v. Mar-shall. 428 N.W.2d 39 (Mich. Ct. App. 1988); Commonwealth v. Eisenhauer. 331 A.2d 786(Pa. Super. Ct. 1974); State v. Angelone. 837 P.2d 656 (Wash. Ct. App. 1992).

This is the substantial-compliance doctrine. The Massachusetts Supreme Judicial Court.in Commonwealth v. Martens, 500 N.E.2d 282 (Mass. 1986), held that the 180-day period


(2) when the custodian mailed the written request and the accompa-nying documentation to the appropriate prosecutor and court;" 6 and(3) when the prosecutor and court received the request and other doc-uments."7 Even before the Fex decision, the majority of jurisdic-tions followed the third view."'

begins to run when an inmate files a request for final disposition with the correctional au-thorities, instead of when those authorities forward the request to the receiving state. Id. at284. An inmate need deliver only the written notice and request for disposition to the appro-priate correctional official for his responsibility under the IAD to be fulfilled. Id. Failure orrefusal of the sending state to forward the request to the receiving state results in the re-ceiving state, not the prisoner, being bound by the failure. Id.

Recently the Ohio Supreme Court, in State v. Mourey, 597 N.E.2d 101 (Ohio 1992).reached the same conclusion, holding: "[W]c therefore embrace the substantial-compliancestandard as being [the] closer [between the stricter substantial-compliance standards] to effec-tuating the purposes of the IAD, because a strict interpretation of the agreement tends tohold the prisoner accountable for measures and duties that are totally beyond his or hercontrol." Id. at 105.

116. See. e.g., State v. Wood, 241 N.W.2d 8 (Iowa 1976).117. See, e.g., Birdwell v. Skeen, 983 F.2d 1332 (5th Cir. 1993); United States v.

Espinoza, 841 F.2d 326 (9th Cir. 1988), superseded by 866 F.2d 1067 (9th Cir. 1988); Hallv. Florida, 678 F. Supp. 858 (M.D. Fla. 1987); Graham v. Commonwealth ex rel. Costa, 368F. Supp. 846 (W.D. Pa. 1973); State v. Braswell, 481 A.2d 413, 417 (Conn. 1984) (constru-ing "caused to be delivered" as delivery), cert. denied, 469 U.S. 1112 (1985); Segroves v.State, 629 So. 2d 967, 968 (Fla. Ct. App. 1993); Brown v. State, 497 N.E.2d 1049 (Ind.1986); Scrivener v. State, 441 N.E.2d 954 (Ind. 1982); Sweat v. Darr, 684 P.2d 347 (Kan.1984); State v. White, 673 P.2d 1106 (Kan. 1983); Powell v. State, 467 A.2d 1052 (Md. Ct.Spec. App. 1983), cert. denied, 471 A.2d 745 (Md. 1984); State v. Rose, 604 A.2d 24, 25(Me. 1992); State v. Beauchene, 541 A.2d 914, 917 (Me. 1988); State v. Wolfe, 821 P.2d339 (Mont. 1991); State v. Temaku, 383 A.2d 437 (N.J. Super. Ct. App. Div. 1978), certifi-cation denied, 391 A.2d 494 (N.J. 1978); State v. Burss, 848 P.2d 596 (Or. 1993); State v.Lock, 839 S.W.2d 436, 441 (Tenn. Crim. Ct. App. 1992); State v. Moosey, 504 A.2d 1001(R.I. 1986); State v. Moore, 774 S.W.2d 590 (Tenn. 1989); State v. Whitemore, 479 N.W.2d566, 569 (Wis. Ct. App. 1991).

118. See State v. Moore, 774 S.W.2d 590 (Tenn. 1989) for a discussion of the jurisdic-tional split. Judicial evaluation of the issue has sometimes examined the congressional historyof the lAD, which included the following excerpt:

Under this agreement, prison authorities are required to inform prisoners of allindictments, information[], or complaints on the basis of which detainers havebeen lodged against them by other jurisdictions. Prisoners may then requesttrial on such pending charges. Any request is transmitted through the wardento the proper official in the other jurisdiction who then has 180 days to bringthe prisoner to trial.

S. REP. No. 91-1356, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.A.A.N. 4864,4865. In addition, courts have analyzed the statutory language of Article III, which statesthat the inmate shall be brought to trial within 180 days after the inmate has "caused to bedelivered" to the prosecutor and the court the specified documents. The phrase "caused to bedelivered" has no relevance to the time when the inmate transmits a request to the custodi-an. A minority of courts have focused on the idea that "caused to be delivered" concernsthe act of mailing by the custodian-acting as the inmate's agent-to the prosecutor in the


The Supreme Court, in Fex v. Michigan, interpreted the 180-daytime period in Article III(a) as "not commenc[ing] until the prisoner'srequest for final disposition of the charges against him has actuallybeen delivered to the court and prosecuting officer of the jurisdictionthat lodged the detainer against him."" 9 "[N]o one can have,caused something to be delivered' unless delivery in fact oc-curs."12 Once delivery has been made to the prosecutor and court,the Court had to decide whether the 180 days runs from the date ofthe delivery or the date of transmittal by the inmate to the prisonauthorities.' 2' After first conceding the ambiguity of language inArticle III(a), the Court found that the common-sense implications,along with the import of related provisions, 2 compelled the con-clusion that the 180-day time limit runs from the date the request isreceived by the prosecutor.'23

charging jurisdiction. This view focuses on the word caused. The majority of courts, howev-er, have interpreted the phrase to mean the date of actual delivery to the prosecutor, relyingon the word delivered.

119. Fex, 113 S. Ct. at 1091; see also People v. Bowman, 502 N.W.2d 192, 195 (Mich.1993); Meyer v. State, 854 S.W.2d 69, 71 (Mo. Ct. App. 1993); State v. Holt, 615 N.E.2d684, 686-87 (Ohio Ct. App. 1992); State v. Burss, 848 P.2d 596 (Or. 1993); Crosland v.State, 857 P.2d 943, 946 (Utah 1993). The Fex Court stated the issue to be specifically"whether, within the factual context before us, that phrase [quoted above] refers to (1) thetime at which petitioner transmitted his notice and request . . . to the Indiana [sending state]correctional authorities; or rather (2) the time at which the Michigan [receiving state] prose-cutor and court . . . received that request." Fex, 113 S. Ct. at 1088. The decision in Fex isdispositive. In Cuyler v. Adams, 449 U.S. 433 (1981). interpretation of the IAD raised aquestion of federal law rather than state law. Id. at 442. As a result, all state and federalcourts are bound by the decision of the United States Supreme Court as it relates to deci-sions concerning the lAD or any other Congressionally sanctioned interstate compact.

120. Fex, 113 S. Ct. at 1088. The Court therefore holds that a prisoner's transmittal of an]AD request to prison authorities fail to commence the 180-day time limit where the requestgets lost and is never actually delivered to the receiving state. Id. at 1089.

121. Id.122. The Court pointed to the fact that the lAD provides for documenting evidence of the

date on which a request is delivered to the receiving state. Id. at 1089. No such provisionexists to require a record of the date on which the request is transmitted to the warden bythe inmate. Id. Another textual clue, according to the Court. is the lAD's apparent indiffer-ence as to the manner of transmittal to the warden: "Article 111(b) says only that the request'shall be given or sent by the prisoner to the warden."' Id.

123. Fex, 113 S. Ct. at 1090. The dissent rejected the majority's statutory interpretation ofArticle III. Justice Blackmun stated that: "Article IlI contains another word that is at least assignificant [as the words 'caused' and 'delivery']. . . . The word is 'he.' The 180-day clockbegins [to run] after he-the prisoner-'shall have caused' the request to be delivered." Id.at 1091 (Blackmun, J., dissenting).

The focus is on the inmate's act which is completed when the inmate transmits the re-quest for disposition to the warden. Id. (Blackmun. J.. dissenting). The dissent noted the


Fex clearly frustrates inmate rights. If either the warden of thesending state or the prosecuting authorities of the receiving state failsto comply with their duties under Article III, the inmate's desire toexpedite untried charges is defeated and mandatory dismissal is notwarranted. The purpose of the IAD is to encourage expeditious dis-position of criminal charges due to the uncertainties which suchcharges have on programs of prisoner treatment and rehabilitation. 24

That the receiving state should not be required to dismiss a chargebecause of the sending state's errors fails to satisfy the objectives ofthe IAD. Regardless of which state errs, dismissal is warranted be-cause the prejudice to the inmate remains the same.

The majority of the sending and receiving states comply with theintent and purpose of the IAD with great diligence; however, thesmall fraction that fail to comply with the IAD results in failure ofthe system, causing a denial of a speedy resolution of the charges forinmates. The argument is stated best in People v. Lincoln:

The receiving state, having set the provisions of the Agreementin motion [by filing a detainer], must bear the burden of assur-ing that its provisions are enforced in the sending state. If theserious consequence of dismissal results automatically from thefailure of the correctional officials in the imprisoning state tocomply, "pressure [will] soon be brought to bear on the negli-gent officials from their administrative superiors as a result ofprotests from the other state."'

adverse effects that detainers have on prisoners, and the command of Article IX that thelAD "shall be liberally construed to effectuate its purposes," and found that the 180-day timelimit under Article III should be interpreted as commencing upon delivery of the inmate'srequest for disposition of charges to the appropriate prison official. Id. at 1094-95(Blackmun, J., dissenting).

IA] prisoner has no power of supervision over prison officials. Once he hashanded over his request to the prison authorities, he has done all that he cando to set the process in motion. . . Because of the prisoner's powerlessness,the IAD's inmate-initiated 180-day period serves as a useful incentive to prisonofficials to forward IAD requests speedily.

Id. at 1094 (Blackmun, J.. dissenting).124. United States v. Mauro, 436 U.S. 340, 351 (1978).125. 601 P.2d 641 (Colo. Ct. App. 1979).126. Lincoh, 601 P.2d at 644 (quoting Note. Convicts-The Right to a Speedy Trial and

the New Detainer Statutes, 18 RUTGERs L. REv. 828. 862 (1964)).

1995]


4. Dismissal of the Charge

Article V(c) of the IAD provides that, if the charge is notbrought to trial within the requisite time period, the court where thecharge is "pending shall enter an order dismissing the same withprejudice, and any detainer based thereon shall cease to be of anyforce or effect."' 27 The dismissal sanction is used not because theinmate necessarily would be prejudiced if the trial was delayed. Rath-er, such a sanction for failure to try the inmate within the fixed,reasonable period after demand is essential to produce general com-pliance with the statutory mandate.'28 Moreover, it is not importantwhether the delay is caused by the prosecutor's office or by thecourt.

Several courts such as the Washington Supreme Court have de-clined to follow the rule that a violation of an IAD time limit shouldautomatically result in dismissal.' 29 Instead, Washington applies acase-by-case approach where the court examines bad faith of theprosecutor and prejudice to the defendant in determining whetherdismissal is appropriate.'30 In addition, the United States, as a re-ceiving state, has adopted section 9(1) of the IAD, which providesthat "where the United States is the receiving state and where the[IAD] mandates dismissal of the charges, a second tier of analysissupplants the unequivocal dismissal with prejudice applicable to otherstates."' 3 ' As a result, the court dismissing the indictment should

127. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2, art. V(c) (1985); seealso Gayles v. Hedman, 244 N.W.2d 154, 155 (Minn. 1976). Article V(c) is not self-execut-ing. I The charge is not automatically rendered null and void by the failure to bring theinmate to trial within 180 days. Id. There must be a judicial proceeding resulting in dis-missal of the charge. Id. at 155-56. Unless and until such a proceeding occurs, a confiningstate may assume the continued existence of the charge, for example, in an extradition pro-ceeding. Id. at 155.

128. See State ex rel. Modie v. Hill, 443 S.E.2d 257, 262 (W. Va. 1994) (dismissal man-dated under Article V(c) when there is no motion for continuance and the delay was notreasonable or necessary).

129. State v. Angelone. 837 P.2d 656. 660 (Wash. Ct. App. 1992).130. Id. A number of state courts are in agreement with the need to show prejudice. See

Sweaney v. Dist. Court, Eighteenth Judicial Dist.. 713 P.2d 914 (Colo. 1986); State v.Barefield, 756 P.2d 731, 735 (Wash. 1988). Cf. United States v. Smith, 696 F. Supp. 1381,1383-85 (D. Or. 1988); Haigler v. United States, 531 A.2d 1236, 1238-39 (D.C. Ct. App.1987); State v. Taylor, 555 N.E.2d 649, 651 (Ohio Ct. App. 1988).

131. United States v. Kurt, 945 F.2d 248, 251 (9th Cir. 1991); see also United States v.Reed, 910 F.2d 621 (9th Cir. 1990); United States v. iwuamadi, 716 F. Supp. 420 (D. Neb.

[Vol. 21:1


determine whether the dismissal should be with or withoutprejudice."

D. Prosecution Requests for Disposition Under Article IV

Article IV of the IAD governs requests by the prosecutor. Trialmust begin within 120 days after the inmate arrives in the demandingstate and the defendant must be returned as expeditiously as possible.

1. Request by the Prosecutor

After a detainer is filed, the prosecutor sends the inmate's custo-dian a request for temporary custody, pursuant to the IAD. The cus-todian sends the request to that state's governor.'33 The governorhas thirty days in which to approve or disapprove the request134 If

1989).132. United States v. Reed, 910 F.2d at 626.

The relevant provision states:[A]ny order of a court dismissing any indictment, information, or complaintmay be with or without prejudice. In determining whether to dismiss the casewith or without prejudice, the court shall consider, among others, each ofthe following factors: The seriousness of the offense; the facts and circum-stances of the case which led to the dismissal; and the impact of areprosecution on the detainers and on the administration of justice ....

Id. (quoting 18 U.S.C.A. app. 2, § 9 (1990)); see also United States v. Tummolo, 822 F.Supp. 1561, 1565 (S.D. Fla. 1993) (mandatory language of the lAD requires the dismissal ofan indictment if the defendant is not brought to trial within 180 days and no continuanceshave been granted; court held that the defendant could not show he was prejudiced by atrial date which was scheduled only eight days after 180-day period; therefore, dismissal waswithout prejudice).

133. The letter states that, in accord with the lAD, the prosecutor of another state has re-quested temporary custody of the named inmate who is charged there with a crime. Theletter also states that the inmate has been informed of the right to seek the governor's disap-proval of the request. Finally, the letter states that it constitutes a notification of the requestfor temporary custody and the governor's office should review the request and either approveor disapprove it.

At the same time, the prison writes a letter to the inmate, advising that: a letter hasbeen written to the governor concerning a request for temporary custody, the inmate has aright to contest the temporary transfer of custody, the inmate can write the governor's officewithin thirty days to challenge the request and state his case. and the request is deemed ap-proved unless the governor disapproves it within the 30-day period.

134. See Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2, art. IV(a)(1985). The governor's office may act in one of three ways: (1) disapprove the request; (2)approve the request by writing the custodian; or (3) take no action within the period, therebyeffectively approving the request. See United States v. Bryant, 612 F.2d 799 (4th Cir. 1979),cert. denied, 446 U.S. 920 (1980); People v. Beamon, 268 N.W.2d 310 (Mich. Ct. App.1978). The 30-day period is waivable by the inmate. See United States v. Sheer, 729 F.2d


the inmate does not attempt to contest the legality of delivery to an-other state by moving the governor to disapprove the request, theinmate waives any right to contest delivery to the other state. 35

However, nothing in the IAD assures that the inmate will be notifiedof the right to have the governor disapprove a request for temporarycustody or to seek legal relief challenging the custody transfer.

Article IV(d) provides that nothing in Article IV:

[S]hall be construed to deprive a prisoner of any right which hemay have to contest the legality of his delivery . .. but suchdelivery may not be opposed or denied on the ground that theexecutive authority of the sending State has not affirmativelyconsented to or ordered such delivery.'36

After the governor has approved the request for temporary custody,an inmate incarcerated in a jurisdiction that has adopted the UniformCriminal Extradition Act is entitled to the procedural protection ofthe Act prior to the inmate's return. 37 After the request for tempo-

164 (2d Cir. 1984).135. State v. Thompson, 336 A.2d 11, 14 (N.J. Super. Ct. App. Div. 1975).136. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2. art. IV(d) (1985).

Before the Supreme Court decision in Cuyler v. Adams. 449 U.S. 433, 449 (1981), severalcourts had construed the IAD to make available to persons transferred under its provisionsprocedures that are similar to those afforded to persons transferred under the Uniform Crimi-nal Extradition Act. See, e.g., Moen v. Wilson. 536 P.2d 1129 (Colo. 1975); McQueen v.Wyrick, 543 S.W.2d 778 (Mo. 1976); State er reL. Garner v. Gray, 201 N.W.2d 163 (Wis.1972). The procedures include judicial notification of a custody request and the right toprocure counsel, the setting of a reasonable time to apply for a writ of habeas corpus, andthe right to a hearing on the habeas corpus. Garner, 201 N.W.2d at 168. At the hearing, theinmate has the right:

(1) to contest his presence in the requesting state at the time the alleged crimewas committed; (2) to question whether he is a fugitive from justice or wheth-er the detainer documents are supported by an indictment or an informationsupported by an affidavit establishing probable cause; and (3) to determinewhether he is substantially charged with a crime under the laws of the receiv-ing state.

Moen, 536 P.2d at 1133; see also Lambert v. Jones, 299 S.E.2d 716 (Ga. 1983); Blakey v.County Silver Bow. 755 P.2d 1380 (Mont. 1988).

137. Cuyler v. Adams, 449 U.S. at 449. A court of record in the inmate's state notifiesthe inmate of the custody demand and a right to counsel, sets a reasonable time for seekinga writ of habeas corpus, and notifies the inmate of the right to a hearing upon the habeascorpus. The prison contacts the local prosecutor and requests that he petition the local statecourt for a writ of habeas corpus ad prosequendunt to give the inmate a "rights" hearing.After the court issues a writ, the inmate is brought to court and advised of his rights. If theinmate wishes to contest the sufficiency of the request for temporary custody, the court mustfix a reasonable time in which the inmate may apply for a writ of habeas corpus. The in-mate may decide to waive any challenge to the detainer and the right to an extradition-type


rary custody is approved, the inmate's custodian offers to delivertemporary custody to the jurisdiction where the charge is pend-ing.'38 The failure of the confining authorities to make such an of-fer does not inure to the inmate's detriment or excuse the demandingprosecutor from making a follow-up inquiry into the reason for theoffer not being made.'39 Thus, if the inmate makes a proper ArticleII demand at or near the time when the Article IV request is made,failure to offer temporary custody under either request does not pre-vent the 180-day period from running.

2. When Does the 120-Day Period Begin?

Although the IAD is silent on the issue, one court has ruled thatthe inmate must be transported to the receiving state within a reason-able time after an Article IV request.' Article IV(c) requires thatthe trial of any inmate whose temporary custody is obtained by theprosecutor's request "shall be commenced within [120] days of thearrival of the prisoner in the receiving State."'' The court, in Bow-ie v. State,' held that the IAD does not require that a final verdictbe rendered within the 120 days, but only that the trial com-mence."' In Bowie, the defendant sought dismissal of the chargesfor failure to bring him to trial within the 120-day limit, stating thatthe time limit had expired before the jury was sworn in and ready to

hearing. See Valentine v. Commonwealth, 443 S.E.2d 445. 447 (Va. C1. App. 1994).138. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2, art. V(a) (1985).139. Nelms v. State, 532 S.W.2d 923 (Tenn. 1976).140. See State v. Chirra, 191 A.2d 308 (N.J. Super. Ct. App. Div. 1963). The question of

which IAD time period applies when both the inmate and the state take action to initiate theproceeding is debatable. In Laster v. State, 546 A.2d 472 (Md. 1988), the court held thatboth the 180-day and 120-day time periods cannot apply. Id. at 479. When a state acceptscustody in conjunction with an inmate's demand for final disposition, the 180-day limit ap-plies. Id. If both time limits applied, every request for temporary custody would be followedby an inmate's request for final disposition. I. Cf. State v. Caulk, 543 A.2d 1366, 1369(Me. 1988); see also State v. Harper. 508 N.W.2d 584, 590 (Neb. Ct. App. 1993) (defendantwaived right to be tried within 120 days after being brought to state by not raising issueprior to or during trial).

141. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2, art. IV(c) (1985).The mere setting of a trial date during the 120-day period is not sufficient to comply withthe 120-day requirement. See People v. Jones, 482 N.W.2d 207 (Mich. Ct. App. 1992), ap-peal after remand, 495 N.W.2d 159 (Mich. Ct. App. 1992). appeal denied, 503 N.W.2d 902(Mich. 1993).

142. 816 P.2d 1143 (Okla. Crim. Ct. App. 1991).143. Bowie, 816 P.2d at 1147.

1995]


receive testimony.'" The court held that for the purpose of the timelimit, the trial commenced when jury selection began, not when thejury was sworn and ready to receive testimony. '45

E. Proper Continuances

Article III(a) also provides "[tihat, for good cause shown in opencourt, the prisoner or his counsel being present, the court havingjurisdiction of the matter may grant any necessary or reasonable con-tinuance."'46 Article IV has an identical provision, and the case pre-cedent under Article IV appears interchangeable with Article III cas-es. The inmate has the burden of showing defects in the granting ofa continuance because court proceedings are presumed correct. 47

According to Birdwell v. Skeen, 4' courts traditionally accord widediscretion in granting or denying continuances.'49 However, a con-tinuance under the IAD is unique.'

The continuance must be granted in open court and in the pres-ence of the inmate or counsel. 5' Accordingly, a continuance

144. Id.145. Id. When a defendant files a motion to suppress evidence after the 120 days has

elapsed, but before the court has dismissed the charge for failure to try the inmate withinthe statutory time, the defendant has waived the dismissal benefits of the lAD. See People v.White, 305 N.Y.S.2d 875 (1969). Unlike the ambiguous language of Article 111(a), ArticleIV(c) leaves no doubt about when the 120-day period begins: it begins with the inmate'sarrival in the receiving state. See Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2.§ 2, art. IV(c) (1985).

146. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2, art. 111(a) (1985).147. Stroble v. Egeler, 408 F. Supp. 630, 634 (E.D. Mich. 1976), remanded on other

grounds, 547 F.2d 339 (6th Cir. 1977), cert. denied. 440 U.S. 940 (1979).148. 983 F.2d 1332 (5th Cir. 1993).149. Birdwell, 983 F.2d at 1336 n.9.150. Id. at 1336. There are five requirements under the IAD for obtaining continuances:

(1) The court must have competent jurisdiction; (2) the continuance must be granted in opencourt; (3) the inmate or the inmate's attorney must be present; (4) the movant must demon-strate good cause; and (5) the length of the continuance must be reasonable or necessary. Id.

151. See Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2. art. 111(a)(1985); see also Neville v. Friedman, 367 N.E.2d 1341 (111. 1977), cert. denied, 437 U.S.903 (1978). However, it has been held that there is no requirement in the lAD that a con-tinuance must be granted formally on the record. People v. Cook, 406 N.Y.S.2d 643 (N.Y.Sup. Ct. 1978). "'Open Court' requires, at a minimum, that a verbatim record be made ofthe proceedings. The State has an affirmative duty to abide by the statutory requirements andmake a record on the question whether a continuance has been granted for good cause."Dillon v. State, 844 S.W.2d 139, 142 (Tenn. 1992), cert. denied, 113 S. Ct. 1589 (1993);see also Johnson v. Stagner, 781 F.2d 758, 763 (9th Cir. 1986). Accord Haigler v. UnitedStates, 531 A.2d 1236 (D.C. Ct. App. 1987) (continuances may be granted in open court forgood cause). In order for there to be good cause which will toll the running of the time


granted by court officials sua sponte is defective.'52 The rationalefor requiring the presence of the defendant or the defendant's attor-ney is that "unless the defendant is given an opportunity to partic-ipate, his speedy trial rights may be whittled away in the non-adver-sary context of ex parte communications between the government andthe court."'53

Two issues have been the subject of continuance litigation: (1)when must the motion for continuance be made; and (2) what consti-tutes "good cause" for a continuance. The courts that have addressedthe first issue are split on the proper timing of the motion. Courtshave stated that the motion for a continuance must be made andgranted within the time period to halt the running of the period andto preclude dismissal.'54

What specific reasons constitute good cause? A prosecutor's lackof preparation is not good cause,'55 but a continuance because ofdefense counsel's lack of preparation may be good cause and reason-able.'56 Good cause for a continuance exists when the prosecutor

limit, "there must be documented or recorded evidence that the trial court took affirmativesteps to try the defendant within the applicable time limits." Id. at 1244. If the court's dock-et is full, it must attempt to reassign the case. Id.

152. Commonwealth v. Gregg, 368 A.2d 651, 654 (Pa. 1977).153. United States v. Ford, 550 F.2d 732, 743 (2d Cir. 1977), affjd sub norn. United

States v. Mauro, 436 U.S. 340 (1978); See also Dillon v. State, 844 S.W.2d 139 (Tenn.1992), cert. denied, 113 S. Ct. 1589 (1993).

154. See, e.g., Ricks v. State, 419 S.E.2d 517 (Ga. Ct. App. 1992); Dennett v. State, 311A.2d 437. 440 (Md. 1973); Commonwealth v. Fisher. 301 A.2d 605 (Pa. 1973). Other courtshave stpted that the continuance must be sought at or prior to the last day specified fortrial, that is, within the 180-day period. See United States v. lwuamadi, 716 F. Supp. 420,424 (D. Neb. 1989). aftd. 909 F.2d 509 (8th Cir. 1990) (attempt to show good cause afterdeadline passed insufficient); Commonwealth v. Thornhill, 601 A.2d 842 (Pa. Super. Ct.1992) (statutory time frame mandates that request for continuance be made at or prior toexpiration of 180-day period); But see State v. Lippolis, 257 A.2d 705, 709 (N.J. Super. Ct.1969). rev'd, 262 A.2d 203 (N.J. 1970). As a result of the reversal in Lippolis, New Jerseyadopted the position that the IAD permits a continuance beyond the 180 days to be soughtwithin 180 days plus the additional days as the court may grant under Article III for goodcause shown. This potentially gives the prosecutor in the receiving state an unlimited oppor-tunity, however long after the 180-day period has lapsed, to try to persuade the court togrant a continuance retroactively.

155. Dennett v. State, 311 A.2d 437, 442 (Md. 1973); see also State v. Knauff, 764 P.2d441 (Idaho Ct. App. 1988). In addition, a crowded docket does not excuse trial more than180 days after prisoner's request. Ravenscraft v. State, 753 S.W.2d 741, 742 (Tex. Ct. App.1988).

156. See Commonwealth v. Scott, 281 A.2d 754 (Pa. Super. Ct. 1971); see also State v.Schaaf, 819 P.2d 909, 914-15 (Ariz. 1991) (withdrawal of defendant's attorney upon appoint-ment as judge pro tern one week prior to trial constituted good cause for continuance); Last-


cannot locate the inmate in the sending state or the confining statebecause the inmate is in a third state for trial.'57 Other acceptablebases for good cause include the incomplete status of pretrial discov-ery by the defendant... and judicial consideration of pretrial motionssubmitted near the end of the time period when the prosecution isready for trial.'59 In calculating the propriety of continuances forgood cause and for the inability of the defendant to stand trial, "de-lays incurred with the defendant's acquiescence or as an accommoda-tion to him are not to be included."' 6

F. Inability of Inmate to Stand Trial

In addition to the provision for good-cause continuances to be

er v. State, 546 A.2d 472, 478 (Md. 1988) (good cause exists where multiple trials in thereceiving state must be brought within the time period); Snyder v. State, 738 P.2d 1303,1304 (Nev. 1987) (good cause exists where a public defender representing the defendant isin a unrelated murder trial); People v, Morris, 610 N.Y.S.2d 725, 729 (Westchester CountyCt. 1994) (continuance for the assignment of counsel constitutes good cause).

157. See United States v. Mason, 372 F. Supp. 651 (N.D. Ohio 1973); State v. Buhl. 635A.2d 562, 568 (N.J. Super. Ct. 1994). A continuance to attempt to apprehend a codefendantis for good cause when granted by sealed affidavit. See People v. Grubbs, 570 P.2d 1299(Colo. Ct. App. 1977).

158. Dennett v. State, 311 A.2d 437, 442 (Md. Ct. Spec. App. 1973).159. Commonwealth v. Fasano, 375 N.E.2d 361 (Mass. 1978). The filing of the motion

"operated as a waiver for as much of the 180-day period as should be reasonably necessaryto secure a judicial resolution of the questions raised by the motion." Id. at 366.

If the prosecutor objects or is unprepared to respond to a motion for continuance, thecourt could grant a continuance so that the court can adequately review and rule on themotion or so that the state could prepare a response. In Birdwell v. Skeen, however, theFifth Circuit indicated that a blanket rule allowing continuances between motions and rulingsmight encourage abuse: "Prosecutors might be tempted to delay preparing a response forinvalid reasons, knowing that that delay, though unreasonable and necessary, will not countin the [lAD] speedy trial computation. Such a rule might also encourage trial courts to delayruling upon motions because of heavy dockets." Birdwell v. Skeen, 983 F.2d 1332, 1341n.23 (5th Cir. 1993). As a result, the court held that when a state or trial court legitimatelyneeds time to respond or rule on a defense motion, a reasonable and necessary continuanceshould be granted consistent with the IAD provisions. Id. at 1340-41.

Good cause should also exist in order to assign the case to a new judge. when thejudge to whom the case is assigned is in the middle of another trial on the day that thematter is set for trial. United States v. Ford, 550 F.2d 732, 743 (2d Cir. 1977). Conversely,it is not good cause when the trial judge is in the middle of another trial and does notassign the case to another judge. Id.

160. People v. Grubbs, 570 P.2d 1299. 1301 (Colo. Ct. App. 1977); see also State v.Holt, 615 N.E.2d 684, 687-88 (Ohio Ct. App. 1992) (time limit for trial was tolled by grantof defense counsel's motion); Petrick v. State. 832 S.W.2d 767, 772 (Tex. Ct. App. 1992)(agreed resetting of trial date 17 times signed by both the prosecution and defense constitutecontinuances under Article IV(c); signature of the attorney alone was sufficient).


granted, Article VI(a) states that the running of the time period "shallbe tolled whenever and for as long as the prisoner is unable to standtrial, as determined by the court having jurisdiction over the mat-ter."'' The court having jurisdiction over the matter determineswhether the inmate is unable to stand trial. If so, the court subtractsfrom the total number of days elapsed the number of days the inmateis unable to stand trial to determine if the time period has been ex-ceeded. The prosecutor need not seek a continuance prior to the run-ning of the time period when inability to stand trial is the reason forthe delay.' 2

A defendant is unable to stand trial during "all those periods ofdelay occasioned by the defendant."' 63 A defendant's request forcontinuances tolls the running of the time period,"6 as well asagreements to delay." 5 Multiple motions filed on behalf of the de-fendant operate to toll the running of the time period of the IAD.'

161. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2, art. IV(a) (1985).162. State v. Wood, 241 N.W.2d 8, It (Iowa 1976). Another reason for an inmate's in-

ability to stand trial is involvement in testing to determine the inmate's competency. Com-monwealth v. Scott, 281 A.2d 754, 756 (Pa. Super. Ct. 1971). In Scott, this inability tostand trial lasted beyond the time that the psychiatrist filed a report with the court until thetime that defense counsel said that the client was able to cooperate in his defense. Id. First,it was defense counsel who initially raised the question of the defendant's competency tostand trial and started mental health proceedings. Id. By itself, though, this would not allowa prosecutor to claim an indefinite tolling. Second, a psychiatrist's report recommended aspeedy trial if the defendant showed an ability to cooperate with his attorney. Id. Becausethis fact was known only to defense counsel, the 180-day period did not resume until heindicated that his client was able to cooperate. Id.

163. United States v. Roy, 771 F.2d 54, 59 (2d Cir. 1985), cert. denied, 475 U.S. 1110(1986); see also United States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988). cert. denied.488 U.S. 1015 (1989); State v. Rose, 604 A.2d 24, 25 (Me. 1992) (quoting United States v.Taylor, 861 F.2d 316, 321 (1st Cir. 1988)).

164. In Commonwealth v. Corbin, 519 N.E.2d 1367 (Mass. Ct. App. 1988), review denied,523 N.E.2d 267 (Mass. 1988). the court held that the seven day period to which defendantwas entitled to file pretrial motions did not toll the time period. Id. at 1369. In addition, inCommonwealth v. Healy, 529 N.E.2d 1357 (Mass. Ct. App. 1988), a thirteen day periodbetween defendant's arraignment and date of filing of conference report did not toll the timeperiod. Id. at 1358; see also Corbin, 519 N.E.2d at 1370; People v. Newton, 764 P.2d 1182(Colo. 1988).

165. Corbin, 519 N.E.2d at 1370. Delay due to disqualification of a judge also tolls therunning of the time period. People v. Malone, 442 N.W.2d 658, 660-61 (Mich. Ct. App.1989).

166. See United States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988), cert. denied, 488U.S. 1015 (1989); Knox v. State, 848 P.2d 1354, 1358 (Wyo. 1993) (defendant's numerouspretrial motions including motion to disqualify the initial trial judge tolled the 120-day peri-od); Jones v. State, 813 P.2d 629 (Wyo. 1991) (a reasonable delay is expected if the trialcourt had before it a challenge for cause to the judge and eleven pretrial motions caused by


Requests by the defendant for additional time to procure an attorney,to suppress evidence, or to subpoena unavailable witnesses aredeemed to be delays "occasioned by the defendant."'67

The time period in which a defendant may be brought to trialmay also be tolled when the prisoner is awaiting trial on othercharges filed by the sending state.' An inmate who is preparingfor trial and is on trial for one charge is "unable to stand trial" for asecond charge from the time that the first case is set for trial. Whenan out-of-state inmate faces multiple charges in the receiving jurisdic-tion, prejudice to the inmate may well result if the state attempts totry more than one serious charge or requires the inmate to preparefor the trial of two or more serious charges.'69

the defendant).167. United States v. Scheer, 729 F.2d 164, 168-69 (2d Cir. 1984). In addition,

defendant's request for continuances will toll the running of the time period. See UnitedStates v. Taylor. 861 F.2d 316 (1st Cir. 1988): Moon v. State, 375 S.E.2d 442 (Ga. 1988).cert. denied, 499 U.S. 982 (1991); Hicks v. State. 737 P.2d 948. 949-50 (Okla. 1987). Also,a prisoner is unable to stand trial while physically or mentally disabled. Stroble v. Anderson,587 F.2d 830, 838 (6th Cir. 1978), cert. denied, 440 U.S. 940 (1979).

168. See State v. Buhl, 635 A.2d 562, 568 (N.J. Super. Ct. App. Div. 1994); People v.Whitely, 539 N.Y.S.2d 652, 654 (N.Y. Sup. Ct. 1989); People v. Vrlaka, 537 N.Y.S.2d 24(N.Y. 1988); see also United States v. Roy, 771 F.2d 54 (2d Cir. 1985) (holding such peri-od is included in computation of time period), cert. denied, 475 U.S. 1110 (1986); McDon-ald v. State, 846 S.W.2d 954, 956 (Tex. Ct. App. 1993) (period for disposition of chargesunder the lAD not tolled by defendant's alleged inability to stand trial; defendant's conditiononly prevented return of defendant through desert by motor vehicle; no evidence existed thatdefendant's health prevented return by air or van). However, a mistaken belief that defendantwas going to seek federal court relief, or what effect a court's initial stop order was, is nota justification for delay. State v. Taylor, 729 S.W.2d 483, 485 (Md. Ct. App. 1987).

The Second Circuit Court of Appeals, in United States v. Cephas, 937 F.2d 816 (2dCir. 1991), cert. denied, 112 S. Ct. 884 (1992), addressed the application of the tolling pro-visions under the Speedy Trial Act of 1974, 18 U.S.C. § 3161, to the lAD when both areimplicated. Id. at 818-19. The Second Circuit held that the two statutory schemes had thesame purpose and that they should be construed together. Id. at 819 (citing United States v.Odem. 674 F.2d 228 (4th Cir. 1982), cert. denied. 457 U.S. 1125 (1982)). The court con-cluded that the "for good cause shown" standard of Articles III and IV of the lAD encom-passes the same conditions and circumstances as the provisions for excludable time under theSpeedy Trial Act. Id.

169. When an inmate is standing trial in one state, the 180-day period is tolled despitethe inmate's request to the charging state for final disposition. This result seems logical, be-cause "if a person is standing trial in one state he cannot be expected to be standing trial inanother state simultaneously." United States v. Mason, 372 F. Supp. 651. 653 (N.D. Ohio1973); see also State v. Maggard, 829 P.2d 591 (Kan. Ct. App. 1992); State v. Binn, 506A.2d 67 (N.J. Super. Ct. App. Div. 1986); State v. Lock, 839 S.W.2d 436, 445 (Tenn. Crim.Ct. App. 1992); Bryant v. State, 819 S.W.2d 927. 931 (Tex. Ct. App. 1991).

1995] ! INTERSTATE AGREEMENT ON DETAINERS 37

G. Return of the Inmate Before Trial

If a trial71 is not held on any additional charge contemplated

by the IAD prior to the inmate's return to the sending state, ArticleIV(e) provides that such a charge "shall not be of any further forceor effect, and the court shall enter an order dismissing the same withprejudice."'' The purpose of this section is to protect the rights ofan inmate as well as to prevent the sending state from having correc-tional programs unduly hampered by numerous, unnecessary trans-fers. 72 Dismissal of an indictment because of a violation of ArticleIV(e) does not prevent an inmate from being indicted on other charg-es arising out of the same incident, barring prejudice. 73 Article

170. In People v. Housewright, 268 N.W.2d 401 (Mich. Ct. App. 1978), the court heldthat "trial" means a determination of guilt under the lAD. Id. at 402. Therefore, it was nota violation of Article IV(e) to return the defendant to his place of incarceration between trialand sentencing. Id. at 403, see also United States v. Coffman, 905 F.2d 330 (10th Cir.1990); State v. Lewis, 422 N.W.2d 768, 771-72 (Minn. Ct. App. 1988); State v. Barefield,756 P.2d 731, 733-34 (Wash. 1988). The IAD does not require a final verdict, only that thedefendant be tried. Therefore, sending a prisoner back to the sending jurisdiction after amistrial does not offend the IAD. Hutcherson v. State, 873 S.W.2d 164 (Ark. 1994); Wilkettv. State, 753 P.2d 383, 386-87 (Okla. Crim. Ct. App. 1988).

171. Interstate Agreement on Detainers Act, 18 U.S.C.A. app. 2, § 2, art. IV(c) (1985).Article 1ll(d) also provides the same remedy if trial is not held on any charge prior to theinmate's return to the original place of imprisonment. Although the lAD does not specify theappropriate court with jurisdiction to dismiss the charge, several courts have interpreted Arti-cle 111(d) as precluding courts of the confining state from determining whether the 180-dayrule or other constitutional rights have been violated. See, e.g., State ex rel. Chamberlain v.Martinco. 179 N.W.2d 286 (Minn. 1970); State v. West, 191 A.2d 758 (N.J. Super. Ct. App.Div. 1963); State ex rel. Garner v. Gray, 208 N.W.2d 161 (Wis. 1973). If the inmate has toraise the violation of the 180-day rule in the charging state, he must wait until returning toprison to make the motion to dismiss.

Is a dismissal possible when one of the states is a signatory to the IAD and the otherstate is not? When the inmate is confined in a state that is a signatory to the IAD, thatparty state may refuse to give effect to the detainer of the non-lAD state, after 180 dayshave passed since the request for final disposition. See Rainey v. Mich. Dep't of Corrections,199 N.W.2d 829 (Mich. Ct. App. 1972); Baker v. Schubin, 339 N.Y.S.2d 360 (N.Y. Sup.Ct. 1972). By contrast, an inmate's demand for final disposition of the charges under theIAD may be futile when the state of confinement is not a party to the IAD. See Seymourv. State, 515 P.2d 39 (Ariz. Ct. App. 1973); State v. Cox, 505 P.2d 360 (Or. Ct. App.1973).

172. In Neville v. Friedman, 367 N.E.2d 1341 (11. 1977), a defendant was returned to hisoriginal place of imprisonment after his counsel's illness compelled the trial court to grant acontinuance. Id. at 1342. The appellate court held that the return of the inmate was not vio-lative of Article IV(e) because the transfer was intended to minimize the interference withthe inmate's correctional program. Id. at 1344.

173. See United States v. Cumberbatch, 438 F. Supp. 976 (S.D.N.Y. 1976), aft'd, 563


IV(e) litigation also involves the problem of custody of transfers,judicial invocation of the waiver of rights doctrine, and judicial graft-ing of specific exceptions to the language of Article IV(e). Failure totry an inmate promptly after custody is first transferred from onejurisdiction to another can adversely affect the quality of assistanceof counsel received." An inmate is unlikely to be as available tohis attorney between arraignment and trial if returned to the place ofconfinement. On the other hand, when a trial has been held and re-sulted in a mistrial, the courts are split on the issue of whether areceiving state is required to retain custody of the inmate until retri-al.1

7 5

While Article IV(e) creates no exceptions to the requirement thatan inmate not be returned to the confining state untried, in somecircumstances courts have held that a custody transfer fails to giverise to a dismissal of the charge with prejudice. These cases typicallyarise when the federal government is either the sending state or thereceiving state. First, the sanction may be inapplicable when thechain of the confining state's custody is never broken. 76 An inmatemay never be surrendered to the receiving state's custody whenbrought into its courts. 77 Second, the sanction does not apply whenan inmate is merely removed for a few hours at a time for a briefcourt appearance and is immediately returned to the original place ofconfinement.7 7 Third, if an inmate's continuous physical presenceand correctional programs at the sending state's institutions are un-

F.2d 49 (2d Cir. 1977), cert. denied, 436 U.S. 946 (1978).174. See United States v. Thompson, 562 F.2d 232 (3d Cir. 1977), cert. denied sub nom.

United States v. Sorrell, 436 U.S. 949 (1978).175. Compare United States v. Evans, 423 F. Supp. 528, 532 n.7 (S.D.N.Y. 1976), aff'd.

556 F.2d 561 (2d Cir. 1977) and People v. Beamon. 268 N.W.2d 310 (Mich. Ct. App.1978) with Wilkett v. State, 753 P.2d 383 (Okla. Crim. Ct. App. 1988) (returning inmateafter mistrial does not violate the IAD).

176. United States v. Chico, 558 F.2d 1047, 1048 (2d Cir. 1977), cert. denied. 436 U.S.947 (1978). Cf People v. Dye, 371 N.E.2d 630 (I1. 1977); People v. Squitieri, 397N.Y.S.2d 888, 891 (N.Y. Sup. Ct. 1977).

177. See, e.g., United States v. Hunnewell, 891 F.2d 955 (1st Cir. 1989), aff'd, 923 F.2d839 (Ist Cir. 1990) (prisoner may stay in federal custody even though he is in state prison).

178. See United States v. Chico, 558 F.2d 1047 (2d Cir. 1977) (defendant removed forone day), cert. denied, 436 U.S. 947 (1978). In State v. Sassoon. 242 S.E.2d 121 (Ga.1978), the court cited Chico as support for the permissible removal of an inmate for fivedays. Id. at 124; see also United States v. Johnson, 953 F.2d 1167 (9th Cir. 1992), cert.denied, 113 S. Ct. 226 (1992); United States v. Taylor, 947 F.2d 1002 (Ist Cir. 1991), cert.denied, 112 S. Ct. 2982 (1992); Sassoon v. Stynchombe, 654 F.2d 371 (5th Cir. 1981);Rackley v. State. 814 P.2d 1048 (Okla. Crim. Ct. App. 1991).

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19951 INTERSTATE AGREEMENT ON DETAINERS

interrupted, Article IV(e) is not applicable. 7 9 Fourth, a receivingstate is not required to maintain custody over an inmate whose coun-sel is unprepared to stand trial because the attorney is in trial else-where' or because the trial court is considering the inmate's pretri-al motions.'' An inmate needs to be returned to the place of con-finement to avoid the interruption of programming that the IAD seeksto eliminate. This case-by-case approach to custody transfers has beencriticized as frustrating "the purpose of securing a speedy trialthrough requiring litigation and adjudication in each case of the issueof whether the actions of the receiving state conform not only to thelanguage of the Detainer Agreement but also to its policies and pur-poses."'' 2 A more plausible reason for not applying the ArticleIV(e) sanction occurs in a federal-state context when: (1) no federalpenal institution exists in the area; (2) the inmate is serving a statesentence; and (3) the local state jail is used as a holding place forinmates awaiting trial in federal court.'

H. Waiver of Rights

Courts further limit the applicability of Article IV(e) by findingthat an inmate's actions show that he has waived the right not to bereturned to the confining jurisdiction untried. Article IV affords the

179. United States v. Daniels, 3 F.3d 25, 27 (Ist Cir. 1993) (brief interruption in stateprison confinement for purposes of arraignment, where the prisoner is returned to state custo-dy the same day, does not violate the lAD; no violation when prisoner is twice transferred,where the second transfer occurred so prisoner could appear with counsel prisoner requested,thereby securing prisoner's right to counsel); United States v. Chico, 558 F.2d at 1049. Cf.United States v. Taylor, 861 F.2d 316 (1st Cir. 1988) (lAD not violated when prisoner re-turned without a trial because he suffered only a one day interruption); State v. Sassoon, 242S.E.2d 121 (Ga. 1978) (refusing to apply Article IV(e) mechanically because of the inmate'sinterest in pursuing his rehabilitative education in the sending jurisdiction).

180. People v. Squitieri, 397 N.Y.S.2d 888, 891 (N.Y. Sup. Ct. 1977).181. People v. Bernstein, 344 N.Y.S.2d 786 (Dutchess County Ct. 1973); see also Finley

v. State, 748 S.W.2d 643 (Ark. 1988) (prisoner waived fight to claim lAD violation whenhe did not request speedy trial nor mention the IAD when returned prior to trial). Cf Bunt-ing v. State, 564 A.2d 109 (Md. Ct. Spec. App. 1989) (single transfer rule violated when,pursuant to request for final disposition, prisoner was transferred from federal court to statecourt for hearing on pretrial motions and then sent back to federal prison after denial ofpretrial motions; court held that the IAD does not provide for transfer of prisoner for any-thing other than trial or final disposition).

182. United States v. Sorrell, 562 F.2d 227, 231 n.6a (3d Cir. 1977), cert. denied, 436U.S. 949 (1978).

183. Cf. United States v. Simmons, 437 F. Supp. 621 (W.D. Pa. 1977), -aftd, 586 F.2d836 (3d Cir. 1978).


prisoner certain procedural and substantive rights. However, suchrights may be waived where the prisoner makes an affirmative re-quest to be treated in a manner contrary to the procedures prescribedby Article IV."8 It should be noted that, even if an inmate is foundto have waived rights under Article IV(e), the inmate does not waivethe Article IV(c) right to be tried within 120 days.'85

Before a court can conclude that an inmate has waived his rightsunder the IAD, the court must determine if the inmate concurred orparticipated in the decision or otherwise affirmatively requested to betreated in a manner contrary to the provision of Article IV(c). t 86 Itis necessary to look at the record of each case to support a claim ofwaiver. Most courts apparently overlook the issue of whether theinmate waived a known right or privilege.'87 For example, when aninmate has requested a return to the original prison'88 or merely ex-

184. Yellen v. Cooper, 828 F.2d 1471, 1474 (10th Cir. 1987); United States v. Eaddy,595 F.2d 341, 344 (6th Cir. 1979); State v. York, 583 N.E.2d 1046, 1050 (Ohio Ct. App.1990).

185. See United States v. Ford, 550 F.2d 732, 742 (2d Cir. 1977); Commonwealth v.Merlo, 364 A.2d 391 (Pa. Super. Ct. 1976). Cf. State v. York, 583 N.E.2d 1046 (Ohio Ct.App. 1990) (where defendant completed an lAD by explicitly requesting disposition underArticle Ill, defendant waived any rights he may have had to be treated under Article IV).

186. See, e.g., People v. Jones, 482 N.W.2d 207 (Mich. Ct. App. 1992).187. For example, a prisoner was said to have waived his statutory right to trial within

120 days under the lAD by freely acquiescing to numerous continuances after the deadline,despite his contention that he should have been advised of his lAD rights. Drescher v. Supe-rior Court. 267 Cal. Rptr. 661, 664 (Cal. Ct. App. 1990) (knowing and intelligent waiver notrequired under the lAD, as required for waiver of constitutional rights); see also People v.Newton, 764 P.2d 1182 (Colo. 1988) (silence constitutes a waiver); Williams v. State, 533N.E.2d 1193, 1194 (Ind. 1989) (prisoner's failure to object when trial date set beyond lADdeadline precluded him from raising issue on appeal); People v. Jones, 495 N.W.2d 159, 160(Mich. Ct. App. 1992) (because the rights afforded to defendants pursuant to the IAD arestatutory and not constitutional, federal courts have required that a waiver of rights under thelAD need only meet the test of voluntariness, and need not be knowingly and intelligentlymade), appeal denied, 503 N.W.2d 902 (Mich. 1993); Er parte Saylor, 734 S.W.2d 55 (Tex.Ct. App. 1987) (defendant waived right to trial within 120 days provided under the IADwhen he iled waiver under Speedy Trial Act). But of. Brown v. Wolff, 706 F.2d 902, 907(9th Cir. 1983) (silence does not constitute a waiver); People v. Allen, 744 P.2d 73, 75-76(Colo. 1987); Welch v. State, 528 So. 2d 1236 (Fla. Dist. Ct. App. 1988) (even thoughdefendant waived right to speedy trial under applicable rule of criminal procedure by failingto appear, such conduct did not waive rights under the IAD); State v. Edwards. 509 So. 2d1161, 1163 (Fla. Dist. Ct. App. 1987) (defendant had no duty to remind state of obligationto bring to trial within the lAD deadline), review denied, 518 So. 2d 1278 (Fla. 1987).

188. United States v. Ford, 550 F.2d 732, 742 (2d Cir. 1977), ctff'd. 436 U.S. 340 (1978);United States v. Scallion, 548 F.2d 1168, 1170 (5th Cir. 1977). cert. denied, 436 U.S. 943(1978); People v. Brown, 854 P.2d 1332, 1335 (Colo. Ct. App. 1993) (defendant waived hisanti-shuttling rights under the IAD when he filed a petition for a writ of habeas corpus


pressed a preference to return,"5 9 the inmate is said to have eithervoluntarily waived the right not to be transferred to the chargingstate for trial or be estopped from objecting to the transfer. The in-mate whose request or preference is granted receives the benefit ofthe court's accession to it and cannot thereafter use it to personaladvantage. In these cases, no inquiry seems to have been made intowhether the inmate was aware of the consequences of the request.'

seeking his return to the federal penitentiary; valid waiver need not be "knowingly and intel-ligent" because the protections of the lAD are statutory; waiver is shown by proof that theprisoner has affirmatively requested treatment in a manner contrary to the protection of theIAD); People v. Hauser, 576 N.Y.S.2d 707 (N.Y. App. Div. 1991), appeal denied, 588N.E.2d 764 (N.Y. 1992) (fact that defendant's request to be returned was prompted by erro-neous information provided to him by a representative of the United Parole Commission doesnot attenuate the circumstance that the request was granted on defendant's application); seealso United States v. Oldaker, 823 F.2d 778, 780-81 (4th Cir. 1987) (defendant waived pro-tective provisions of the IAD, which prosecuting jurisdiction violated by returning defendantto original jurisdiction without a trial and by voluntarily initiating action that had foreseeableeffect of returning him to original jurisdiction); Snyder v. State, 738 P.2d 1303, 1305 (Nev.1987).

189. People v. Squitieri, 397 N.Y.S.2d 888, 892 (N.Y. Sup. Ct. 1977).190. A guilty plea by an inmate is a waiver of the claim that the charge should have

been dismissed prior to the plea due to a violation of the lAD. See, e.g., Baxter v. UnitedStates. 966 F.2d 387 (8th Cir. 1992); Kowalak v. United States, 645 F.2d 534 (6th Cir.1981); Williams v. State. 445 F. Supp. 1216 (D. Md. 1978); Pate v. State, 601 So. 2d 210(Ala. Crim. Ct. App. 1992): State v. Rodriguez. 869 P.2d 631 (Kan. 1994); Mohler v. State.579 A.2d 1208, 1212 (Md. Ct. App. 1990); People v. Wanty, 471 N.W.2d 922 (Mich. Ct.App. 1991), appeal dehied, 478 N.W.2d 177 (Mich. 1991); State v. Ternaku, 383 A.2d 437(N.J. Super. Ct. App. Div. 1978), certification denied, 391 A.2d 494 (N.J. 1978); see alsoRunck v. State, 497 N.W.2d 74, 82 (N.D. 1993) (defendant did not waive right to complainof speedy trial violation by entering into a contingent guilty plea; however, delay caused bydefendant regarding guilty plea, such as his refusal to testify, could be attributed to him indetermining if a violation occurred).

A guilty plea represents a break in the chain of events which has preceded itin a criminal process. When a criminal defendant has solemnly admitted inopen court that he is in fact guilty of the offense with which he is charged hemay not thereafter raise independent claims relating to the deprivation of con-stitutional rights that occurred prior to the entry of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267 (1973). The defendant, by his plea, tacitly indicatedthat no further judicial inquiry was required and demonstrated his intent to forego appellatereview. In short, guilty pleas, absent fraud, and issues specifically reserved for appeal oroverriding considerations of justice, should terminate litigation and not serve as a springboardfor collateral attacks unrelated to the guilt or innocence of the accused. People v. Squiticri.397 N.Y.S.2d 888, 893 (N.Y. Sup. Ct. 1977). Although a defendant may raise constitutionalissues after a guilty plea, the IAD is viewed as only a set of procedural rules. United Statesv. Palmer, 574 F.2d 164 (3d Cir. 1978). cert. denied, 437 U.S. 907 (1978). Thus, a violationof the lAD does not entitle a defendant to a dismissal as a fundamental right, even whenthe guilty plea was given after the time period for trial had run.


IV. CONCLUSION: CHANGES FOR THE IAD

This Article has examined the IAD's scope and operation duringthe past quarter century. During that time, the Supreme Court andlower courts have eroded the scope of the IAD. Within the confinesof that reduced scope, it is still important to ensure that courts, pros-ecutors, and corrections officials follow the spirit of the Smith v.Hooey 9' right to a speedy trial for untried charges.19 2

An extended reevaluation of the IAD is necessary. For example,the IAD places no duty on a prosecutor to file a detainer within acertain time or at all. Currently, filing a detainer is necessary for theapplication of the IAD. After a charge is returned, the prosecutorneeds only a short time in which to file a detainer. A time limit forfiling the detainer would minimize the harm which the passage oftime may have on an inmate.

Notification by the inmate's custodian to the inmate about thecharge should occur within a short time after prison officials receiveany information about the existence, location, or nature of pendingcharges against the inmate. When a detainer is filed, the inmateshould be informed within a day or two of the filing. This notifica-tion would give the inmate the option of verifying the existence ofpending charges that have not been filed as detainers. The inmate'scustodian should inform the inmate about the source and contents ofall documents as well as their significance.

The filing of a detainer should be regarded as a request by theprosecutor for temporary custody of the inmate. After the filing, theprosecutor should have a specific period of time, as now, in which tobring the inmate to trial. Treating the filing of the detainer as anintegral part of the disposition of the charge instead of as a conditionprecedent for the optional operation of the IAD by the inmate orprosecutor has .several advantages. It would substantially eliminate thedetainer's harmful effects on the inmate's correctional program andparole prospects, because the charge underlying the detainer would beresolved quickly. In addition, it should eliminate cases in which theprosecutor files a detainer only to dislodge it just prior to theinmate's release. The public interest in the prompt resolution of

191. 393 U.S. 374 (1969).192. Hooey. 393 U.S. at 379.

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pending charges would also be served.In Smith v. Hooey, the Supreme Court indicated that an inmate

needs to be protected by the speedy trial guarantee even more thanother defendants.'93 Without reforms in the IAD process such asthose just described, Smith's constitutional requirement for govern-ment to make a "diligent good-faith effort" to bring an inmate totrial on new charges cannot be achieved.

193. id. at 379-80 ("[lt is self-evident that 'the possibilities that long delay will impairthe ability of an accused to defend himself' are markedly increased when the accused isincarcerated in another jurisdiction.").

19951

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