Federal Escape Charges: Prison Escape and Failure to Return.

Which federal statute covers escape, nonreturn, assistance, or concealment?

Depending on the specific circumstances of your case, or your loved one’s, several different federal (or state) statutes may come into play. This includes not only statutes for prison escapes in and of themselves but also statutes addressing failures to return, facilitating the escape of someone else, and concealing an individual from federal law enforcement. We can break these down as follows:

Federal Prison Escape and Nonreturn: 18 U.S.C. § 751

18 U.S.C. § 751 covers escaping or attempting to escape from specified federal custody; assistance in another person’s escape is addressed separately by 18 U.S.C. § 752. This statute applies to federal prisoners and federal detainees as well.

Assisting in a Federal Prison Escape: 18 U.S.C. § 752

18 U.S.C. § 752 applies to third parties who assist in a prisoner’s escape. It covers rescuing or attempting to rescue, and instigating, aiding, or assisting the escape or attempted escape of a person in specified federal custody. This statute covers both prison staff and non-staff members who contribute to escapes.

All Federal Prison Escape-Related Offenses: 18 U.S.C. Chapter 35

While 18 U.S.C. § 751 and § 752 cover two different aspects of prison escape offenses, they both fall under 18 U.S.C. Chapter 35. This chapter outlines all federal offenses that involve escape, failure to return, and unlawful assistance.

Concealing or Harboring an Individual to Evade Arrest: 18 U.S.C. § 1071

18 U.S.C. § 1071 makes it a federal crime to harbor or conceal a person for whose arrest a federal warrant or other process has been issued, after notice or knowledge of that warrant or process. This statute is different in that it does not require that a person has already escaped; it applies to harboring or concealing a person for whom a federal warrant or process has issued.

Escaping from State Institutions in Florida: Florida Statutes § 944.40

Florida Statutes § 944.40 covers a prisoner who escapes or attempts to escape from listed confinement, including while released on furlough; assistance or conspiracy may be addressed under other Florida statutes.

Florida Penalties under § 944.40

Under Florida Statutes § 944.40, a prisoner’s escape or attempted escape is a second-degree felony.

What does §752 require when someone helps a federal escape?

18 U.S.C. § 752(a) makes it a crime to assist a person in escaping federal custody. Specifically, it provides that “Whoever rescues or attempts to rescue or instigates, aids or assists the escape, or attempt to escape, of any person arrested upon a warrant or other process issued under any law of the United States, or committed to the custody of the Attorney General or to any institution or facility by his direction, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined under this title or imprisoned not more than five years, or both; or, if the custody or confinement is for extradition, or for exclusion or expulsion proceedings under the immigration laws, or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined under this title or imprisoned not more than one year, or both.” is subject to criminal prosecution. There are several critical components to a charge under this statute.

A Knowing and Willful Act

Like a prison escape charge, federal escape assistance charges require the commission of a knowing and willful act. In most cases, the federal government must prove not only that a person provided assistance or instigation leading to an inmate’s escape, but also that they did so while aware that an escape was being facilitated (and with specific intent to facilitate such escape).

Lawful Federal Custody

Another critical component of federal escape assistance is that the person being helped must be in custody under lawful process or authority. This is an aspect of the federal escape assistance statute that is sometimes overlooked.

Distinguishing Discussion from Actual Assistance

Section 752 covers assistance with an escape or attempted escape; a completed escape is not required if the government proves the statutory elements of an attempted escape.

Sentencing for Assistance in Escaping Federal Custody

Regarding sentencing, 18 U.S.C. § 752 provides up to five years of imprisonment for aiding in a prisoner’s escape if the prisoner was held in federal custody on a felony charge or following any conviction. However, if the person who is being helped to escape is being held in federal custody because of a misdemeanor offense, the penalty for assisting is only one year of imprisonment. Similar to escape charges, escape assistance charges can result in up to one year in prison for helping an inmate to escape during their period of detention prior to a criminal conviction.

“I am a straight shooter,” Todd Spodek says of his own practice. “I tell clients exactly where their case stands.”

When does Florida treat a nonreturn as escape rather than a missed release?

Florida Section 944.40 also encompasses escape or attempted escape during transportation to or from a place of confinement. Florida amended Section 944.40’s language regarding furloughs effective October 1, 2019; it now specifically covers prisoners who have been released on furlough.

Prosecution Standard for Florida Section 944.40

Under Section 944.40, Florida prosecutors must prove an escape or attempted escape beyond reasonable doubt to secure a conviction. Florida’s jury instruction for this statute reads in part:

The official Florida standard instruction requires proof that the defendant was lawfully in custody, was confined or being transported or working on a public road, and escaped or attempted to escape by an overt act intending to avoid lawful confinement.

Evidence of Escape, Attempted Escape, or Failure to Return

For a person to be convicted of a federal or state escape charge, the prosecution must also be able to rely on evidence of the escape itself. Again, Florida’s jury instruction for escapes under Section 944.40 provides several theories under which a defendant can be convicted, including:

The defendant escaped or attempted to escape by an overt act while intending to avoid lawful confinement.

• “The willful failure of an inmate to remain within the extended limits of his or her confinement or to return within the time prescribed to the place of confinement designated by the department shall be deemed as an escape from the custody of the department and shall be punishable as prescribed by law.”
• “The willful failure of an inmate to remain within the extended limits of his or her confinement or to return within the time prescribed to the place of confinement designated by the department shall be deemed as an escape from the custody of the department and shall be punishable as prescribed by law.”
• “Any prisoner confined in, or released on furlough from, any prison, jail, contractor-operated correctional facility, road camp, or other penal institution, whether operated by the state, a county, or a municipality, or operated under a contract with the state, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.”

Intent to Avoid Confinement

With regard to failure-to-return cases, the theory under Florida’s jury instruction is that the person willfully failed to return within the prescribed time or remained outside the extended confinement limits with the intent to avoid confinement. Thus, prosecutors must prove more than just the defendant’s failure to return to custody by the deadline or within the prescribed time; they must also prove that the defendant’s absence was willful and was motivated by an intent to avoid confinement.

If the government cannot prove that a person in question acted willfully or that they intended to avoid confinement, this is not enough to sustain a conviction under Florida Section 944.40.

Penalties for State Prison Escape in Florida

Under Florida Statutes § 944.40, escape or attempted escape from the listed forms of confinement is a second-degree felony. As such, a second-degree felony carries a maximum statutory penalty of fifteen years of imprisonment and a fine of up to $10,000.

Consecutive Sentencing in Florida Escape Cases

Another critical aspect of Florida’s escape laws is the requirement for consecutive sentencing. If an escape is committed by an individual who was previously sentenced to imprisonment in Florida, the sentence imposed under § 944.40 must run consecutively. That is, the fifteen-year statutory maximum sentence would apply in addition to the existing sentence imposed by the court.

The Scoring Requirements of the Florida Criminal Punishment Code

Florida uses a scoring system under its Criminal Punishment Code to determine sentencing. In Florida, escape, jailbreak, and similar offenses are given a level-six score under the Criminal Punishment Code. For a violation of section 944.40, the consecutive-sentence requirement comes from section 944.40 itself, not from the offense’s level-six ranking. However, the scoring rules are subject to a wide range of exceptions and mitigating factors, and a level-six score does not guarantee a prison sentence. Rather, in a court of law, a defendant can argue against imposition of a prison sentence based on several factors.

Defenses to Escape Charges under Florida Law

When facing a prison escape charge in Florida, defendants can raise any number of different defenses. This is because the element of willfulness is critical in these cases and, if the prosecution cannot prove that a defendant acted with intent to commit a crime, this will not be enough to sustain a conviction in court. For example, if the person in question has a cognitive impairment that contributed to their escape, they may not be able to form the requisite intent necessary to convict under Florida Statutes § 944.40.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.