Texas Gov. Greg Abbott speaks on Sept. 7, 2021. (AP Photo/LM Otero, File)

In recent months, high-profile conservative governors like Greg Abbott of Texas and Florida’s Ron DeSantis have flown and bused migrants to blue states and cities in a move that Maryland Governor Larry Hogan decried as “publicity stunts.” While these transfers of migrants across state lines are most notable for dialing up the pitched political battle another decibel, could there be a serious solution for sharing the benefits and burdens of migration across jurisdictions? Federal immigration reforms have been stalled for decades and are likely to remain so. But a new interstate compact—an agreement of cooperation that states use in criminal justice and other contexts—could be part of the answer.

There are other stigmatized groups for whom such agreements already exist. Like undocumented immigrants, people on probation and parole are often made to feel unwelcome. But states and cities do not “dump” parolees, especially those just released from prison, on their counterparts, however politically tempting it might be to make a statement about crime. An obscure but instructive entity prevents it: the Interstate Commission for Adult Offender Supervision. The ICAOS is an interstate compact regulating the transfer of approximately 250,000 people on community supervision every year. This framework of reciprocity could provide a model for addressing similar challenges in both immigration and criminal justice.

In 1934, Congress authorized the original version of the ICAOS, known as the Interstate Compact for the Supervision of Parolees and Probationers, and states created it in 1937. Then it was streamlined and strengthened under the new name in 2002 after extensive public hearings and study. The body, which incorporates all U.S. states and territories, seeks to provide an orderly process for people on community supervision who voluntarily wish to move across state lines, often seeking to reconnect with family or find employment.

Public safety is central to the ICAOS. The entity requires the specific conditions of the person’s probation or parole to be transferred to the new supervising agency, along with records that can help inform the new agency’s work. It also requires the consent of those being transferred and ensures continuity of supervision. Of course, this orderliness stands in sharp contrast to both the situation on the border and the buses and planes of migrants being sent out of state without so much as a heads-up.

While the ICAOS successfully regulates the transfer of probationers and parolees along with the similar Interstate Juvenile Compact, which covers youths on probation and runaways, it’s not a panacea. Lawmakers off-loading people with criminal records onto different jurisdictions is a problem that affects other parts of the justice system where tensions may exist between state and local governments.

Indeed, perhaps the most ubiquitous schemes for casting out “unwanted” people are blanket residency restrictions on sex offenders. For example, a state lawmaker in California once negotiated a sort of “side deal with the state’s prison agency to limit the release of people convicted of sex offenses to his district. Even though empirical research has found banishment ineffective at reducing recidivism, many communities use these local ordinances to effectively drive sex offenders into oblivion. That can end with the offenders huddled under a bridge or shunted into an unincorporated area of a county that may lack the power under state law to demand that they go elsewhere.

Another example involves people experiencing homelessness. Going back to 2006, if not before, unhoused people have been dumped on Skid Row in downtown Los Angeles by entities ranging from hospitals to the police agencies of bedroom communities in the LA area.

From these examples, some key lessons and opportunities emerge. First, the dignity of every person requires that immigrants, unhoused people, and those in the criminal justice system be permitted to make an informed choice among their residence options. The ICAOS provides this by making people on community supervision aware of the process for moving to another state, which is based on clear rules rather than the whims of a single person, whether that is a probation officer or a governor.

Second, interstate compacts, including the Multistate Tax Compact and the Emergency Management Assistance Compact, represent a promising approach that aligns with our constitutional tradition of federalism. The overarching goal of compacts is to defuse conflicts that could imperil commerce and relations among states by fairly and consistently resolving matters affecting two or more jurisdictions. Though hardly a substitute for comprehensive federal immigration reform, in a divided nation with a deadlocked Senate, an interstate compact on immigration might be more readily achievable.

In the context of immigration, Utah lawmakers approved the creation of a guest worker interstate compact, which would have allowed for guest workers. But the Obama administration missed an opportunity when it failed to grant Utah a waiver—a step that might have encouraged other states to follow Utah’s lead. Today, interstate compacts for migrants could address the legitimate concerns of small border communities like Rio Grande City and Eagle Pass, Texas, that cannot absorb streams of migrants but are genuinely interested in facilitating a scalable solution. Doing so entails involving states and communities across the country, given the number of migrants—hence the need for an interstate compact.

At the same time, such compacts could help match immigrants looking for work with communities looking for workers, given the fact that we have 10.1 million job openings across the country and many regions face population decline. The prospect of an interstate compact would test whether leaders of liberal, mostly northern states are willing to make the policy commitments that match their stated belief in a humanitarian approach. It would also require their counterparts in states like Texas and Arizona to collaborate in good faith in pursuit of a sustainable solution. 

In criminal justice, state lawmakers should explore whether the same system governing the movements of parolees could apply to releasing people incarcerated for sex offenses into various communities that now compete in the race toward more Byzantine residency rules to keep them out.

While these populations are all stigmatized, migrants, of course, are not violating any criminal laws. Their arrivals instead reflect a failure of the regimes from which they are fleeing. We rightly deprive people on community supervision of certain liberties, ideally only imposing the least restrictive conditions necessary to promote public safety and rehabilitation. Among these conditions is forgoing the right to move to another state without going through the ICAOS process. In contrast to people placed on supervision for committing a crime, people presenting themselves at border crossings seeking asylum are following the law.

Thus, there is certainly no analogy regarding blameworthiness between, for example, those who have committed sex offenses and those legally seeking asylum. But the common thread is that we expect immigrants, people with a criminal record, and people experiencing homelessness to take personal responsibility for overcoming obstacles to find success. Just as we rightly expect individuals facing challenges to take responsibility for their futures, the solution to immigration, crime, or homelessness cannot be one government off-loading its responsibility to undesired populations on another. Instead, we owe these groups and our nation policies anchored in state reciprocity and individual consent.

Passing the buck doesn’t move us forward. A coordinated migration system based on individual consent and matching supply and demand for labor would benefit America in the aggregate. By making each individual’s case part of a reciprocal arrangement—rather than a tug-of-war between jurisdictions—compacts offer a valuable tool to implement criminal justice and immigration policies that are both humane and effective.

Marc A. Levin is chief policy counsel for theCouncil on Criminal Justice and can be reached at mlevin@counciloncj.org and on Twitter @marcalevin. Khalil A. Cumberbatch is director of strategic partnerships at the Council on Criminal Justice and can be reached at khalil@counciloncj.org and on Twitter @KhaCumberbatch. Together, they lead the council’s Centering Justice initiative.

Khalil A. Cumberbatch

Khalil A. Cumberbatch is director of strategic partnerships at the Council on Criminal Justice and can be reached at khalil@counciloncj.org and on Twitter @KhaCumberbatch.

Marc A. Levin

Marc A. Levin is chief policy counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org and on Twitter @marcalevin.