Saying "no" after Pleau: exploring the conflict between the Interstate Agreement on Detainers Act and the federal writ ad prosequendum.

• Author: O'Roark, Evan M.

"We have no way of knowing what ramifications would result from a holding that Congress has the implied constitutional power 'to alter, amend or repeal' its consent to an interstate compact.... No doubt the suspicion of even potential impermanency would be damaging to the very concept of interstate compacts." (1)

1. INTRODUCTION

   In 2010, federal prosecutors indicted Jason Pleau after he shot and killed a man outside of a Rhode Island bank. (2) The indictment appeared to be a sure sign that the federal government would seek the death penalty against Pleau, given that Pleau had already agreed to plead guilty to state charges and accept a life sentence without the possibility of parole. (3) When federal prosecutors requested Rhode Island prison officials transfer Pleau to federal custody for prosecution, however, Rhode Island Governor Lincoln Chafee responded in unprecedented fashion: chafee refused to turn Pleau over, citing Rhode Island's long-standing opposition to the death penalty. (4)

   The subsequent litigation between Pleau, Chafee, and the United States revealed a conflict between two procedural mechanisms--the Interstate Agreement on Detainers Act (IAD) and the writ of habeas corpus ad prosequendum--that had been simmering for decades. (5) Initially, the government had requested custody of Pleau under the IAD, which expressly provides governors with the right to deny such requests; a governor had simply never invoked the provision before Chafee. (6) The United States then attempted to compel Pleau's transfer by obtaining a writ ad prosequendum, which had previously always been understood as a mandatory court order. (7) In United States v. Pleau, the First Circuit--forced to choose which procedural mechanism to enforce--ultimately enforced the writ ad prosequendum over the IAD, requiring Rhode Island to transfer Pleau for federal prosecution. (8) Nevertheless, the potential for conflict between the writ ad prosequendum and IAD remains outside the First Circuit, and resolving this conflict presents a unique question of federalism. (9)

   This Note analyzes that question, identifying the competing interests at stake and ultimately suggesting that upholding the IAD over the writ ad prosequendum would better preserve principles of federalism without eroding the federal government's prosecutorial prerogatives. (10) After laying out the basic operations and statutory foundations of the writ ad prosequendum and IAD in Part II.A, Part II.B details how courts have adopted inconsistent interpretations of the writ ad prosequendum and IAD, including the First Circuit's interpretation in Pleau. (11) Part II.C gauges the potential for further conflict between the writ ad prosequendum and IAD by considering how the federal death penalty implicates contentious issues of federalism. (12) Finally, Part III critiques the First Circuit's treatment of the IAD and writ ad prosequendum and argues that future courts addressing this issue should resolve the conflict between these two mechanisms by enforcing the IAD. (13)

2. HISTORY

   A single criminal act can constitute a violation of both state and federal law. (14) In such instances, it is well settled that states and the federal government are treated as independent sovereigns, each entitled to enforce its own laws against the offender. (15) The first jurisdiction to take physical custody of a suspected criminal has "primary jurisdiction" over the suspect, which allows that jurisdiction to try, sentence, and punish the defendant before any other. (16) other jurisdictions may subsequently exercise "secondary jurisdiction" by bringing charges against the same defendant for the same conduct. (17) The IAD and the writ ad prosequendum make exercising concurrent jurisdiction possible by providing the means to transfer defendants between jurisdictions for prosecution and sentencing. (18)

   1. Mechanisms for Interjurisdictional Transfers of Prisoners

      1. The Writ Ad Prosequendum

         The writ of habeas corpus ad prosequendum is a court order directing prison officials to immediately bring a prisoner from another jurisdiction before the court to face criminal charges. (19) Not to be confused with the writ of habeas corpus ad subjiciendum, which provides relief to detainees held without cause, the writ ad prosequendum requires an individual to appear in court for prosecution. (20) When exercising secondary jurisdiction, a writ ad prosequendum allows federal and state prosecutors to obtain temporary custody of a prisoner incarcerated in another jurisdiction. (21) The writ ad prosequendum has been used for centuries at common law to transfer prisoners from one jurisdiction to be prosecuted in another and has been recognized as one of the oldest writs available to the federal judiciary. (22) The Supreme Court first acknowledged federal courts' statutory authority to issue writs ad prosequendum in 1807 in Ex parte Bollman, holding that the First Judiciary Act of 1789 implicitly authorized federal courts to do so. (23) Federal courts' power to issue writs ad prosequendum was not expressly codified, however, until 1948 when Congress consolidated all of the writs of habeas corpus into 28 U.S.C. [section] 2241. (24)

      2. The Interstate Agreement on Detainers

         A detainer is a document that prosecutors and law enforcement officials use to request custody of a prisoner upon the prisoner's release from a penal institution in another jurisdiction. (25) In contrast to a writ ad prosequendum, detainers are used by law enforcement officials independently of courts and, historically, have been observed only as a matter of interstate comity. (26) A detainer itself simply gives prison officials notice that another jurisdiction intends to prosecute one of their prisoners after the prisoner's present term of incarceration, rather than functioning as a demand for temporary custody to prosecute a prisoner during his or her prison term. (27) Historically, the imposition of a detainer caused significant problems for prisoners, as it often led to criminal charges remaining unresolved for the duration of prisoners' sentences. (28) In 1956, the Council of State Governments convened to resolve these problems by drafting the IAD--an interstate compact creating a uniform procedural scheme for interjurisdictional transfers of prisoners that allows for the "expeditious and orderly disposition of ... all detainers based on untried indictments, informations, or complaints." (29) The heart of the IAD is Article III, which gives prisoners against whom a detainer has been lodged the right to demand final disposition of the outstanding charges, thereby protecting prisoners from having perpetually unresolved charges hanging over them. (30)

         Article IV(a) provides prosecutors with a mechanism to initiate final disposition of the charges on which a detainer is based. (31) After lodging a detainer against a prisoner, a prosecutor may file a "written request for temporary custody" of the prisoner with the jurisdiction in which the prisoner is incarcerated (the "sending state"). (32) Upon receiving such a request, Article IV(a) gives the governor of the sending state thirty days to deny the request before transfer of the prisoner to the requesting jurisdiction (the "receiving state") becomes mandatory. (33) Article IV's transfer provision gives federal prosecutors a convenient alternative for obtaining temporary custody over state prisoners, as filing a detainer and a written request for temporary custody under the IAD is less burdensome than petitioning a federal court for a writ ad prosequendum. (34) The IAD is not, however, the exclusive means by which prosecutors may obtain custody of prisoners in another jurisdiction as the agreement does not preclude the use of writs ad prosequendum. (35)

         As an interstate compact, the IAD rests on the Compact Clause of the U.S. Constitution, which allows states, acting in their sovereign capacity, to contract with one another and the federal government. (36) Interstate compacts are binding on those jurisdictions that choose to enter into them as party states may not unilaterally change their terms. (37) Since the IAD's inception, forty-eight states have adopted it and, in 1970, Congress adopted the IAD on behalf of the federal government and the District of Columbia. (38)

         The Compact Clause prohibits states from forming interstate compacts that infringe on the sovereignty of the federal government, unless Congress gives its consent. (39) Once obtained, Congress's consent transforms an interstate compact into federal law. (40) In Cuyler v. Adams, the Supreme Court determined that although the IAD "interfere[s] with the full and free exercise of federal authority," Congress prospectively consented to the agreement by passing the Crime Control Consent Act of 1934, which authorized states to enter agreements relating to criminal law enforcement. (41) Therefore, the IAD constitutes federal law under Cuyler. (42)

   2. Enforceability of the Writ Ad Prosequendum

      As a judicial instrument expressly authorized by Congress under the federal habeas corpus statute, the writ ad prosequendum would presumably be held enforceable over any contrary state action under the Supremacy Clause. (43) Prior to Pleau, however, no court had ever directly ruled on whether a state must comply with a federal writ ad prosequendum because a state had never previously refused to comply with one. (44) In its seminal case on the federal writ ad prosequendum, United States v. Carbo, the Supreme Court expressly declined to consider whether, and on what basis, a federal writ ad prosequendum would be held enforceable if a state refused to transfer a prisoner pursuant to the writ. (45) Nevertheless, the Supreme Court and circuit courts of appeals have contemplated the enforceability of the writ ad prosequendum while interpreting it in the context of the IAD, albeit primarily in dicta. (46) A survey of such authority suggests that, in spite...