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Interstate Commission for Adult Offender Supervision | Ensuring Public Safety for the 21st Century

Bench Book - 5.2.1.1 No Statutory Right under ICAOS Itself

The federal right in question in a Section 1983 action is typically a constitutional right (for example, the right to equal protection under the law or the right to be free from an unreasonable search under the Fourth Amendment to the United States Constitution). But, under the language of Section 1983, it could also be a right created by a federal statute. The question of whether a federal statute creates an individual right enforceable through Section 1983 turns out to be a difficult one—and the subject of a fair amount of litigation. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (holding that the Family Educational Rights and Privacy Act of 1974 did not create an individual right enforceable under Section 1983).

Fortunately, the question has been answered by the federal courts in the context of ICAOS. In Doe v. Pennsylvania Board of Probation and Parole, the United States Court of Appeals for the Third Circuit concluded that ICAOS contains neither express “rights creating” language nor an implied intent to create a federal right or remedy. Therefore Congress did not intend for it to give Compact offenders enforceable individual rights. 513 F.3d 95 (3d Cir. 2008); accord M.F. v. N.Y. Exec. Dep’t Div. of Parole, 640 F.3d 491 (2d Cir. 2011).

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