Chapter 4.6.4 Retaking Hearings

Retaking Hearings

The Gagnon and Morrissey decisions do not require probable cause type hearings in all circumstances of retaking.  It is important to maintain the distinction between a probable cause hearing and a retaking hearing.  Under the Compact, any sending state has the right to enter any other member state and retake an absconder, escapee or juvenile whose supervision has been transferred.  See ICJ Rule 5-103  (Interstate Comm’n for Juveniles 2024). Retaking hearings are narrower in focus, and generally conducted to confirm the identity of the juvenile and the authority of the demanding officer. 

For example, in Ogden v. Klundt, the Court held that the scope of review in the receiving state in a retaking proceeding was limited to determining (1) the scope of the authority of the demanding officers, and (2) the identity of the person to be retaken. 550 P.2d 36, 39 (Wash. Ct. App. 1976). This principle applies in circumstances where the violations forming the basis of retaking occurred in a state other than the state where the offender is incarcerated, e.g., a determination of probable cause by a sending state.  It is sufficient in this context that officials conducting the hearing in the state where the offender is physically located are satisfied on the face of any documents presented that an independent decision maker in another state has made a determination that there is probable cause to believe the offender committed a violation.  Cf. In re Hayes, 468 N.E.2d 1083 (Mass. Ct. App. 1984). 

Such a determination is entitled to full faith and credit in the holding state and can, therefore, form the basis of retaking by the sending state without additional hearings. Id. The juvenile is entitled to notice.  The hearing may be non-adversarial.  The juvenile, while entitled to a hearing, need not be physically present given the limited scope of the proceeding. Id.; Cf. Quinones v. Commonwealth, 671 N.E.2d 1225 (Mass. 1996) (juveniles transferred under interstate compact not entitled to a probable cause hearing in Massachusetts before being transferred to another state to answer pending delinquency proceedings when the demanding state had already found probable cause); In re Doucette, 676 N.E.2d 1169 (Mass. Ct. App. 1997) (Once the governor of the asylum state has acted on a request for extradition based on a demanding state’s judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state; a court considering release on habeas corpus can do no more than decide (a) whether documents are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive).

It is also important to note is that state courts sometimes choose to grant more due process and other protections under their state constitutions than available under the federal Constitution.  See, e.g., State v. Henry, 732 P.2d 9 (1987); State v. Pellicci, NH S.Ct., 580 A.2d 710 (1990).