Right of Interstate Movement
The Supreme Court has recognized that the right of interstate movement is a fundamental right protected by the constitution. United States v. Guest, 383 U.S. 745, 767 (1966). The freedom of movement “is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful—knowing, studying, arguing, exploring, conversing, observing and even thinking.” Aptheker v. Sec’y of State, 378 U.S. 500, 520 (1964) (Douglas, J., concurring). The right to interstate travel is firmly embedded in the Supreme Court’s jurisprudence. The Supreme Court's most recent and comprehensive explanation of the right to travel concluded that this right consists of three components: “[1] the right of a citizen of one State to enter and leave another State, [2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and [3], for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” See Saenz v. Roe, 526 U.S. 489 (1999); also Doe v. Pennsylvania Board of Probation and Parole, 513 F. 3d 95, 113, (2008) (This case also approves a contractual analysis of the Interstate Compact for Adult Offender Supervision, which is also applicable to ICJ.)
Though the right to travel is recognized as a fundamental right, this right is limited or extinguished in the cases of a criminal convictions for both juveniles and adults, as with other constitutional guarantees. Juveniles’ rights may be limited extinguished either because of the constitutionally protected parental interest in child rearing or because a juvenile has been adjudicated for acts which are classified as crimes in the adult system. Simply because of their legal status as minors, juveniles enjoy reduced freedom of movement due to their legal status and the constitutionally protected interest of their parents in child rearing. The inherent differences between minors and adults, e.g., immaturity, vulnerability, need for parental guidance, have been recognized by the Supreme Court as sufficient to justify treating minors differently from adults under the U.S. Constitution See, Bellotti v. Baird, 443 U.S. 622, 634–635 (1979). “So, although children generally are protected by the same constitutional guarantees … as are adults, the State is entitled to adjust its legal system to account for children’s vulnerability’ by exercising broader authority over their activities.” Hutchins v. District of Columbia, 188 F.3d 531, 541 (D.C. Cir. 1999) (quoting Bellotti, 443 U.S. at 635). An unemancipated minor does not have the right to freely “come and go at will.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 654 (1995). “[J]uveniles, unlike adults, are always in some form of custody.” Schall v. Martin, 467 U.S. 253, 265 (1984). They lack an unfettered right to travel because their right to free movement is limited at least by their parents’ authority to consent to or prohibit movement, or by the state’s interest in protecting them given their presumed vulnerability. Vernonia supra.; see also Ramos v. Town of Vernon, 353 F.3d 171, 193 (2d Cir. 2003)
Moreover, as a general proposition, convicted persons enjoy no right to interstate travel or a constitutionally protected interest to supervision in another state. See Jones v. Helms, 452 U.S. 412, 418-20 (1981); Griffin v. Wisconsin, 483 U.S. 868, 874 (1987); U.S. v. Knights, 534 U.S. 112, 119 (2001) (“Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.”) While these cases relate to adult offenders, the U.S. Supreme Court has made it clear that the rights of juveniles who are on probation or parole to travel have been similarly limited and do not have the right to freely “come and go at will.” Schall, supra. at p. 265.
Convicted offenders have no right to control where they live in the United States; the right to travel is extinguished for the entire balance of their sentences. See, e.g., Williams v. Wisconsin, 336 F.3d 576, 581 (7th Cir. 2003). See also, Jones v. Helms, 452 U.S. 412, 419-20 (1981) (a person who has committed an offense punishable by imprisonment does not have an unqualified right to leave the jurisdiction prior to arrest or conviction). See also United States v. Pugliese, 960 F.2d 913, 916-16 (10th Cir. 1992). (‘No due process challenge may be made unless the challenger has been or is threatened with being deprived of life, liberty, or property.’) See Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006). While all of the foregoing cases involved adult offenders, there is no indication that an adjudicated juvenile would be exempt from the general principles justifying the restriction in the right to interstate travel, even if an adjudicated juvenile could overcome the custodial interests of a parent or guardian. See Schall, supra. (“Juvenile's liberty interest may, in appropriate circumstance, be subordinated to state's parens patriae interest in preserving and promoting welfare of child”).
The absence of rights to interstate travel has important implications on the return of offenders. Because offenders possess no presumptive right to travel, in addition to public safety considerations and the management of corrections resources, states have discretion in managing both the sending and return of offenders. Just as the ICAOS is the primary tool for managing the interstate movement of offenders on probation or parole, the ICJ serves a similar function in the juvenile justice system. Like its adult counterpart, the ICJ controls such movement, as well as the return of juveniles whose supervisions transfers are not successful or absconders. The level of process owed offenders in transferring supervision to another state is therefore subject to the ICJ Rules.