When federal inmates at Hazelton finish their federal sentences and another state has filed a detainer against them, does West Virginia have to give them an extradition-style hearing before they're transferred?

Plain-English summary

Hazelton Federal Prison Complex sits in Preston County, West Virginia. Each year 50 to 60 inmates finish federal sentences there while still subject to detainers from other states for unserved state sentences, probation violations, or parole violations. Out of caution, Preston County circuit courts had been holding what amounted to extradition hearings before each transfer: appointing a public defender, requiring the prosecutor's office to appear, and walking through the extradition checklist. Most of these hearings were uncontested; many of the inmates had signed waivers consenting to their return before they ever got to federal custody. The Federal Bureau of Prisons told the prosecutor it would change its procedure if it had assurance that West Virginia law did not require these hearings.

The prosecutor asked the Attorney General. The AG said no process is required, and the courts can stop holding the hearings.

The reasoning unfolds across three doctrines that each, in turn, fail to apply.

1. The Interstate Agreement on Detainers does not apply. West Virginia signed onto the Agreement in W. Va. Code § 62-14-1, and the federal government is also a party. The Agreement creates the standard procedural protections when one jurisdiction wants temporary custody of an inmate to deal with pending charges. But the Supreme Court was explicit in Carchman v. Nash: the Agreement "clearly does not apply to a detainer based on an additional sentence already imposed against the prisoner." It applies only to detainers based on "any untried indictment, information or complaint." When an inmate has already been convicted by another state and just needs to serve out the sentence, the Agreement is silent. State courts in Colorado, Ohio, Nebraska, and South Dakota have all read it the same way (Reed; Barnes; Jimenez; Robison).

2. Extradition does not apply, either as a constitutional matter or under the Uniform Criminal Extradition Act. The Extradition Clause (U.S. Const. art. IV, § 2) governs how one state hands over a fugitive to another. The federal government is not a state and has not enacted any version of the UCEA (Kornegay v. Ebbert; McCallum v. State). And the conceptual basis for extradition does not fit federal-state transfers. As a Pennsylvania district court put it in Thomas v. Levi, "[t]he historical objective of extradition" is "to prevent the territorial boundaries of a state's sovereignty from frustrating its efforts to bring to justice those who violate its laws," and that objective "obviously has no application to the dual or 'vertical' territorial sovereignty which characterizes the federal-state relationship." A federal prisoner is already "within the territorial jurisdiction of the United States" (Commonwealth v. Hale); there is no fugitive flight to undo.

3. What does apply: comity. The Supreme Court's foundational case is Ponzi v. Fessenden, 258 U.S. 254 (1922). When two sovereigns each have a claim on a person, "[w]e live in the jurisdiction of two sovereignties, each having its own system of courts," and the inmate "may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it." Transfer authority "exists" but is "addressed solely to the discretion of the sovereignty making it" (Ponzi). Many cases since (Warren; Derengowski; Ballard; Wing v. Stewart) have applied that principle to mean: when the federal government consents to release a federal prisoner to a state, the state can take custody. Federal consent is the only legally relevant question, and the federal Bureau of Prisons gives that consent at Hazelton.

Inmate's personal rights. Atkinson v. Hanberry says there is "no federal law" creating a right or expectation for a federal prisoner to avoid transfer to state authorities, and the Fifth Amendment "does not guarantee [a federal prisoner] the right to a hearing concerning his transfer." The inmates have already received the due process owed them, federal trial, federal sentencing, and (when applicable) an earlier state proceeding that produced the unserved sentence. The remaining question of which sovereign incarcerates first is "for the sovereigns and not the criminal to settle" (Banks v. O'Grady; Stamphill v. Johnston; Dean v. State of Ohio).

West Virginia's interest. The opinion goes one step further: even if there were room for state law to add a process requirement on its own, West Virginia's interest is attenuated. The inmates are housed in West Virginia but they are serving federal sentences for crimes that may have occurred elsewhere, and the detainers come from other states. West Virginia's only role is the location of the federal prison. The opinion concludes "there is no requirement under these circumstances for a hearing or other judicial process before the federal government may facilitate the transfer of an inmate from a federal correctional facility in West Virginia pursuant to a valid detainer from another State."

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What was actually happening in Preston County before this opinion?
A: A circuit judge would convene a hearing, appoint a public defender to represent the inmate, and require the Preston County Prosecutor's office to appear on behalf of the State. The judge worked through what amounted to an extradition checklist before approving transfer. Most hearings were uncontested because many inmates had signed pre-transfer waivers. The prosecutor estimated this consumed significant attorney time on dozens of hearings per year.

Q: What changes after this opinion?
A: The opinion is not binding; circuit courts can keep holding the hearings if they want to. But it tells the federal Bureau of Prisons that West Virginia law does not compel them. With that signal, BOP can revise its own procedures to skip the state hearing step, and prosecutors and courts can decline to participate. Any transfer still needs federal consent and a valid detainer, both of which BOP and the receiving state handle internally.

Q: Does this apply when the receiving state has only an outstanding charge, not a sentence?
A: No. The opinion is careful: it covers detainers based on already-imposed sentences. If the detainer is for "untried indictments, informations or complaints," the Interstate Agreement on Detainers governs and triggers its own procedural framework (W. Va. Code § 62-14-1). That framework still requires process. The opinion does not displace the Agreement in cases where it applies.

Q: What about probation or parole violations? Are those "sentences"?
A: The opinion treats them as sentence-based detainers, not untried-charge detainers, citing Carchman and the state cases. The reasoning is that the underlying conviction has already happened; a probation or parole violation is a question of post-conviction supervision rather than a pending charge. Carchman explicitly listed probation and parole violations among detainer categories that fall outside the Agreement.

Q: Does the inmate have any way to challenge the transfer?
A: Not under West Virginia law per this opinion. Atkinson v. Hanberry and Banks v. O'Grady foreclose a federal-law challenge to the transfer itself. An inmate could still raise issues about the validity of the underlying detainer, mistaken identity, sentence already served, the receiving state has dropped the matter, but those are challenges to the existence of the detainer, not to the transfer process. They would more naturally be raised with the receiving state.

Q: Is the inmate's pre-transfer waiver legally meaningful here?
A: The opinion does not turn on it. Even without a waiver, transfer would be permissible under Ponzi comity. The waiver is operationally helpful (it shows the inmate consents) but is not legally required.

Background and statutory framework

The Interstate Agreement on Detainers. A multi-jurisdictional compact codified in West Virginia at W. Va. Code § 62-14-1. The federal government is a party. The Agreement applies to detainers "based on any untried indictment, information or complaint" (Article I, as construed in Carchman v. Nash). It does not reach already-sentenced detainers (Carchman; State ex rel. Modie v. Hill).

The Extradition Clause and the UCEA. U.S. Const. art. IV, § 2 governs interstate extradition of fugitives. Most states have implemented the Clause through some version of the Uniform Criminal Extradition Act (Dunn v. Hindman). The federal government has never enacted a version, and the Clause applies between states, not between a state and the federal government (Kornegay v. Ebbert; McCallum v. State).

Comity and Ponzi. Ponzi v. Fessenden, 258 U.S. 254 (1922), recognized that when two sovereigns have claims on a single person, "[t]here is no express authority authorizing the transfer of a federal prisoner to a state court," but "no doubt that it exists" as a matter of comity, addressed "solely to the discretion of the sovereignty making it." The principle was applied to federal-state transfers specifically in Wing v. Stewart, Ballard v. State, United States v. Warren, and Derengowski v. U.S. Marshal.

Personal rights. Atkinson v. Hanberry (5th Cir. 1979) held that there is no federal-law right or expectation in avoiding transfer, and the Fifth Amendment does not guarantee a hearing on transfer. Banks v. O'Grady (8th Cir. 1940) and Stamphill v. Johnston (9th Cir. 1943) hold that allocation between sovereigns "does not concern the defendant." A West Virginia federal district court reached the same conclusion in Dean v. State of Ohio, 107 F. Supp. 937 (N.D. W. Va. 1952), in a case directly on point.

Citations and references

Statutes and constitutional provisions:
- W. Va. Code § 5-3-2 (AG advisory authority)
- W. Va. Code § 62-14-1 (Interstate Agreement on Detainers; West Virginia)
- U.S. Const. art. IV, § 2 (Extradition Clause)
- Uniform Criminal Extradition Act (state versions)

Cases:
- Ponzi v. Fessenden, 258 U.S. 254 (1922)
- Carchman v. Nash, 473 U.S. 716 (1985)
- Cuyler v. Adams, 449 U.S. 433 (1981)
- Moody v. Daggett, 429 U.S. 78 (1976)
- Abbate v. United States, 359 U.S. 187 (1959)
- Bartkus v. Illinois, 359 U.S. 121 (1959)
- State ex rel. Modie v. Hill, 191 W. Va. 100 (1994)
- State v. Inscore, 219 W. Va. 443 (2006)
- Reed v. People, 745 P.2d 235 (Colo. 1987)
- State v. Barnes, 471 N.E.2d 514 (Ohio Ct. App. 1984)
- State v. Jimenez, 808 N.W.2d 352 (Neb. 2012)
- Robison v. State, 278 N.W.2d 463 (S.D. 1979)
- Dunn v. Hindman, 855 P.2d 994 (Kan. Ct. App. 1993)
- Kornegay v. Ebbert, 502 F. App'x 131 (3d Cir. 2012)
- McCallum v. State, 407 So. 2d 865 (Ala. Crim. App. 1981)
- Thomas v. Levi, 422 F. Supp. 1027 (E.D. Pa. 1976)
- Commonwealth v. Hale, 96 S.W.3d 24 (Ky. 2003)
- United States v. Warren, 610 F.2d 680 (9th Cir. 1980)
- Derengowski v. U.S. Marshal, 377 F.2d 223 (8th Cir. 1967)
- Ballard v. State, 983 A.2d 264 (R.I. 2009)
- Wing v. Stewart, 77 F. Supp. 257 (W.D. Mo. 1948)
- Atkinson v. Hanberry, 589 F.2d 917 (5th Cir. 1979)
- Banks v. O'Grady, 113 F.2d 926 (8th Cir. 1940)
- Stamphill v. Johnston, 136 F.2d 291 (9th Cir. 1943)
- Dean v. State of Ohio, 107 F. Supp. 937 (N.D. W. Va. 1952)

Source

• Landing page: https://ago.wv.gov/media/17771/download?inline
• Original PDF: https://ago.wv.gov/media/17771/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
State Capitol
Building 1, Room 26-E
Charleston, WV 25305-0220
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140
June 6, 2018

The Honorable Melvin Snyder
Office of the Preston County Prosecuting Attorney
106 West Main Street, Suite 201
Kingwood, WV 26537

Dear Prosecutor Snyder:

You have asked for an Opinion of the Attorney General concerning the legal process that must be afforded to federal inmates incarcerated in West Virginia who are subject to detainers issued by other States for "unserved sentences, probation, and parole violations." This Opinion is issued pursuant to W. Va. Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely on the factual assertions in your correspondence with the Office of the Attorney General.

In your letter, you explain that the Hazelton Federal Prison Complex is located in Preston County. Every year, 50 to 60 of the inmates housed at Hazelton finish serving their federal sentences, yet remain subject to detainers from other States based on unserved sentences for state-law convictions, or probation or parole violations. These inmates thus "need to be transported back [to] the requesting State." Your letter further explains that there is no formal agreement between West Virginia and the Federal Bureau of Prisons regarding the process to transfer inmates from federal custody at Hazelton to the custody of another State, and no otherwise "clear legal process" governing these situations.

As a result, and out of an abundance of caution, these prisoners currently receive the equivalent of an extradition hearing before transfer: A circuit judge "goes through the process for an extradition," including appointing a public defender to represent the inmate's interests and requiring attorneys from your office to appear at the hearing on behalf of the State. You note that these proceedings are not actually extradition hearings because the inmates are not fugitives from the requesting State, and that it takes significant time and resources for your attorneys to participate in dozens of these hearings each year. Further, the proceedings are often uncontested because many of the federal inmates signed waivers before they were transferred to federal custody consenting to their return to state custody at the end of their federal sentence. Finally, you explain that the federal Bureau of Prisons is open to revising the current extradition-like procedures if they receive assurance that West Virginia law does not require legal process under these circumstances.

Your letter raises the following legal question:

What process, if any, must be afforded to a federal inmate incarcerated in West Virginia who is subject to a detainer arising from a conviction in another State before the federal government may transfer that inmate to the custody of the requesting State?

We conclude that the State of West Virginia has no obligation to provide process to a federal inmate before the federal government transfers the inmate to the custody of a State where the inmate will serve an uncompleted sentence for a state-law conviction.

Discussion

A detainer is a "request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent." Carchman v. Nash, 473 U.S. 716, 719 (1985) (citing Cuyler v. Adams, 449 U.S. 433, 436 n.3 (1981)). This "administrative mechanism" is designed to avoid a break in custody when one jurisdiction releases an inmate, and another jurisdiction seeks custody of the same inmate to pursue charges or to require that inmate to serve a sentence under that jurisdiction's laws. See State v. Inscore, 219 W. Va. 443, 446 n.4 (2006); see also Moody v. Daggett, 429 U.S. 78, 81 n.2 (1976). Detainers can be filed for a variety of reasons, including "outstanding criminal charges, outstanding parole or probation-violation charges, or additional sentences already imposed against the prisoner" by the requesting jurisdiction. Carchman, 473 U.S. at 719 (citations omitted).

In many cases, the procedural framework governing detainers is established by the Interstate Agreement on Detainers ("Agreement"), a compact signed by most States, including West Virginia, and the federal government. See, e.g., W. Va. Code § 62-14-1 (West Virginia's codification of the Agreement). This Agreement dictates the process required when one jurisdiction seeks custody of an inmate related to "outstanding criminal charge[s]" and "untried indictments, informations or complaints." State ex rel. Modie v. Hill, 191 W. Va. 100, 102, 443 S.E.2d 257, 259 (1994) (citations omitted). It does not, however, resolve the question you raised: As the United States Supreme Court explained, the Agreement "clearly does not apply to a detainer based on an additional sentence already imposed against the prisoner." Carchman, 473 U.S. at 727 n.5 (1985) (emphasis added); see also id. at 727 ("By its terms [the Agreement] does not apply to all detainers, but only those based on 'any untried indictment, information or complaint.'"). Our Supreme Court of Appeals has never addressed this question directly, but authority from other signatory States further confirms that the Agreement applies only to detainers involving pending, unresolved criminal charges in another jurisdiction. See, e.g., Reed v. People, 745 P.2d 235, 240 (Colo. 1987) ("The [Agreement] . . . does not apply where there is no untried indictment, information or complaint outstanding in the receiving state."); State v. Barnes, 471 N.E.2d 514, 514 (Ohio Ct. App. 1984) (holding that "the [Agreement] does not apply to detainers placed on a prisoner who has already been convicted"); State v. Jimenez, 808 N.W.2d 352, 357 (Neb. 2012) ("[A] detainer for a prisoner who has been convicted but not sentenced does not relate to an 'untried indictment, information or complaint' and thus does not trigger the procedural requirements of the Agreement."); Robison v. State, 278 N.W.2d 463, 464 (S.D. 1979) (concluding that the Agreement is not implicated where "there are no untried charges outstanding" in the other jurisdiction).

Because the Agreement does not govern detainers for inmates who have already been convicted by the requesting State, the process currently used at Hazelton apparently imports principles from extradition law instead. We conclude that these transfers do not trigger the concerns associated with extradition, and thus that the legal process for extradition, including the hearings you describe, is also inapplicable.

The Extradition Clause of the U.S. Constitution provides that "[a] person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." U.S. CONST. art. IV, § 2. Many States have enacted the Uniform Criminal Extradition Act ("UCEA") in light of this constitutional requirement, which establishes a uniform process when one State seeks extradition of a fugitive found in another. See generally Dunn v. Hindman, 855 P.2d 994, 996 (Kan. Ct. App. 1993) (discussing Kansas's adoption of the UCEA and noting that the UCEA was designed to "implement[] the requirements of the Extradition Clause"). The Extradition Clause does not, however, apply to the federal government, and the federal government accordingly has not enacted any version of the UCEA. See Kornegay v. Ebbert, 502 F. App'x 131, 133 (3d Cir. 2012) (unpublished); McCallum v. State, 407 So. 2d 865, 870 (Ala. Crim. App. 1981) (explaining that "the United States has not adopted the [UCEA] and does not statutorily provide a federal prisoner with any procedural protections when being transferred to state custody").

Extradition also does not make sense as a conceptual matter when applied to federal-state transfers. The "historical objective of extradition," which is to "prevent the territorial boundaries of a state's sovereignty from frustrating its efforts to bring to justice those who violate its laws," "obviously has no application to the dual or 'vertical' territorial sovereignty which characterizes the federal-state relationship." Thomas v. Levi, 422 F. Supp. 1027, 1032 (E.D. Pa. 1976) (citing Abbate v. United States, 359 U.S. 187 (1959), Bartkus v. Illinois, 359 U.S. 121 (1959)). In other words, because the territorial boundaries of the United States fully encompass those of the individual States, "an inmate incarcerated in a [state] prison remains within the territorial jurisdiction of the United States and thus 'extradition' is unnecessary." Commonwealth v. Hale, 96 S.W.3d 24, 32 (Ky. 2003).

Instead, the weight of authority demonstrates that recognition of a state detainer by the federal government (except in circumstances encompassed by the Agreement, as discussed above) is a matter of comity, not statutory or constitutional law. The Supreme Court's seminal decision on the question explained that "[w]e live in the jurisdiction of two sovereignties, each having its own system of courts," and an inmate "may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it." Ponzi v. Fessenden, 258 U.S. 254, 259-60 (1922) (citations omitted). Thus, although "[t]here is no express authority authorizing the transfer of a federal prisoner to a state court," there is "no doubt that it exists" and that it is a matter addressed "solely to the discretion of the sovereignty making it and of its representatives with power to grant it." Id. at 260-62 (emphasis added); see also United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980) (explaining that "the sovereign which first arrests an individual acquires priority of jurisdiction for purposes of trial, sentencing, and incarceration," but that sovereign may always "elect under the doctrine of comity to relinquish it to another sovereign"); Derengowski v. U.S. Marshal, Minn. Office, Minn. Div., 377 F.2d 223, 224 (8th Cir. 1967) ("[t]he exercise of jurisdiction over a prisoner who has violated the law of more than one sovereignty . . . is solely a question of comity between the sovereignties").

In the specific context raised here, transferring a federal prisoner to state custody to serve out a state sentence, these principles make clear that the only issue is whether the federal government consents to transfer. See, e.g., Ballard v. State, 983 A.2d 264, 268 (R.I. 2009) ("When confronted with a question concerning the transfer of a federal prisoner to state custody with the consent of federal authorities, the United States Supreme Court has held that the state may properly exercise its power to vindicate its own laws." (emphasis added; citations omitted)); Wing v. Stewart, 77 F. Supp. 257, 258 (W.D. Mo. 1948) ("Comity between the United States Government and the several States permits a Federal prisoner, with the consent of the United States, to be delivered to a State for service of a sentence in vindication of State laws." (emphasis added)). In the situations you have described, there is no question that the federal government consents to transfer to state custody after the Hazelton inmates complete their federal sentences.

It is also clear that transfers under the circumstances you describe do not implicate any personal right of an inmate. There is "no federal law" that "creates a right or expectation for a federal prisoner to avoid transfer to state authorities," and the Fifth Amendment accordingly "does not guarantee [a federal prisoner] the right to a hearing concerning his transfer." Atkinson v. Hanberry, 589 F.2d 917, 920 (5th Cir. 1979). The reason for this is straightforward: Here, the inmates have already received due process and other constitutional and statutory protections when they were charged and convicted under federal and state law. The remaining question is simply who "shall first inflict punishment", the federal government or the State, and "it is for the sovereigns and not the criminal to settle" that question. Banks v. O'Grady, 113 F.2d 926, 927 (8th Cir. 1940). This arrangement "does not concern the defendant who has violated the laws of each sovereignty," Stamphill v. Johnston, 136 F.2d 291, 292 (9th Cir. 1943), and voluntary surrender into the custody of another sovereign is "not a personal right of the prisoner," Dean v. State of Ohio, 107 F. Supp. 937, 940 (N.D. W. Va. 1952) (citations omitted). In short, transfer decisions are "an executive, and not a judicial, function," and no specific legal process is required. Warren, 610 F.2d at 685 (citing Ponzi, 258 U.S. at 261-62).

Finally, we are aware of nothing in West Virginia law, as opposed to the federal constitutional and statutory principles discussed above, suggesting a different result. West Virginia's interest in these matters is attenuated: The inmates are housed in the State, but they are serving federal sentences at a federal prison for crimes that did not necessarily occur in West Virginia, and the detainers in question are from other States. There is also no indication that West Virginia has any involvement in these transfers apart from the pre-transfer hearings that currently take place in West Virginia's courts. The federal government's decision to honor a detainer from another State is purely a matter of comity; just as this decision does not implicate a personal right of the inmate, it also does not create a legal duty on the part of the State where the federal prison sits.

We thus conclude that the transfer of a federal prisoner to a State in which the prisoner is subject to an uncompleted sentence does not raise a cognizable question of West Virginia or federal law. Accordingly, there is no requirement under these circumstances for a hearing or other judicial process before the federal government may facilitate the transfer of an inmate from a federal correctional facility in West Virginia pursuant to a valid detainer from another State.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Zachary A. Viglianco
Assistant Attorney General