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12.3: Escape and Related Offenses

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    The unauthorized departure from legal confinement is the crux of escape. We criminalize escape for two primary reasons. First, court-ordered confinement is a command, not a suggestion or a request. Refusal to comply with court sanctions must result in a consequence. Rules matter. Second, the law recognizes that when a person voluntarily flees confinement a host of associated dangers arise. Escapes endanger guards, police officers, and the general public, both during and after their escape. As you will see, Alaska has adopted a tough approach to escape-related crimes.

    This section explores the crimes associated with escape, unlawful evasion, and promoting contraband (the introduction of contraband into a jail facility). Escape and unlawful evasion apply to defendants in duly-authorized confinement; those confined by the Alaska Department of Corrections (“DOC”) or some other lawful authority (e.g., police). Some exceptions exist, but bail violations (i.e., pretrial release) are normally excluded from the crimes of escape. Violations of bail may constitute the criminal offense of violating conditions of release or failure to appear depending on the circumstance. Finally, this section explores the differences between escape and resisting arrest.

    Bail refers to a defendant’s pretrial release. AS 12.30 et. seq. The Alaska Constitution guarantees all persons accused of a crime the right of pretrial release. Art. 1, §11. The purpose of bail is to ensure the appearance of the accused at subsequent hearings while simultaneously protecting the public from future harm. See e.g., Torgerson v. State, 444 P.3d 235 (Alaska App. 2019). Bail generally is beyond the scope of this text, but the crimes associated with the violation of bail are discussed briefly to help understand the limits of escape.

    Escape

    Alaska has graded escape based on a series of factors (discussed below), but understanding its statutory scheme requires an understanding of two key terms: official detention and secure correctional facility.

    Official Detention

    Official detention is the general term for confinement. It includes confinement to a correctional facility and the incidental conduct leading up to confinement in a correctional facility (e.g., arrest, detention, or restraint). Any type of legally authorized confinement or detention is covered, including “custody”, “arrest”, “surrender in lieu of arrest”, or the “constructive restraint under an order of a court”. AS 11.81.900(42).

    Custody, as used in the escape statutes, is largely synonymous to arrest. See Beckman v. State, 689 P.2d 500, 502 n.3 (Alaska App. 1984). It occurs when government officers exercise control and restraint over a person. Custody includes post-arrest restraint, including detention before the prisoner is placed in a correctional facility. For example, if an arrestee jumps out of a police car while being transported to the facility, the arrestee would be guilty of escape even though the arrestee never made it to the jail. The arrestee was in custody for purposes of “official detention”.

    Like custody, an arrest occurs when an officer exercises physical restraint over a person. Even if the officer is ultimately unsuccessful in apprehending the suspect, if the officer touches an arrestee, an arrest has occurred. See Maynard v. State, 652 P.2d 489, 492 n.6 (Alaska App. 1982). Physical contact with the suspect is the key to an arrest.

    [I]f an officer approaches an offender for the purpose of making an arrest, which he is unable to do because the [offender] eludes him by running away, there has been no [escape]…. If an officer having authority to make an arrest actually touches his arrestee, for the manifested purpose of apprehending him, the arrest is complete ‘although he does not succeed in stopping or holding him even for an instant’. In such a case there is legal custody of the arrestee for an instant although the imprisonment is constructive rather than effective. Hence there would be an escape, if such an arrestee ran away after being touched by the officer with appropriate words of arrest and lawful authority for this purpose.

    See Maynard, 652 P.2d at 492, n..6

    Surrender in lieu of arrest occurs when a suspect capitulates to the officer’s authority, even though no physical restraint occurred.

    Finally, a person is under official detention when the person is under “constructive restraint”. Constructive restraint occurs when an officer (1) intends to effectuate an arrest, (2) communicates that intent to the arrestee, and (3) the arrestee understands the command, but nonetheless fails to surrender. Constructive restraint does not require physical custody. Thus, a defendant who absconds from a courtroom after being told they are being remanded is guilty of escape, even if no one physically touches the defendant. See e.g.MacDonald v. State, 83 P.3d 549, 552 (Alaska App. 2004).

    Although official detention is broad, it is not without its limitations. A defendant’s correctional status and placement limit what constitutes official detention. Official detention does not include a person released under conditions of bail or a person released on probation or parole. In other words, a person residing at a halfway house as a condition of bail, or while on probation or parole, is not in DOC custody (and thus, not under official detention) for purposes of escape. See e.g., Williams v. State, 301 P.3d 196, 198–99 (Alaska App. 2013). On the other hand, when DOC (as opposed to the court) assigns that person to a halfway house under DOC’s authority to classify and place prisoners, the person remains in DOC custody (and thus, under official detention). See e.g. Wassillie v. State, 366 P.3d 549, 551 (Alaska App. 2016).

    A Tale of Two Prisoners…

    Hakim Ivie was convicted of second-degree assault and sentenced to two years of imprisonment and two years of probation. Ivie served his initial term of imprisonment and was released on probation. Shortly after his release, Ivie was re-arrested on the allegation that he consumed alcohol in violation of his probation conditions. While his probation revocation case was pending, the court ordered that Ivie be held in jail until space came up at a halfway house (so Ivie could attend alcohol treatment). When space came up, Ivie was transferred to the halfway house as ordered. Shortly after arriving, Ivie walked away. Upon Ivie’s arrest, he was charged and convicted of second-degree escape.

    The Court of Appeals reversed Ivie’s escape conviction noting that the trial court ordered DOC to transfer Ivie to the halfway house (for purposes of alcohol treatment). The trial court’s order was a bail release order and not formal confinement to DOC. Placement at a halfway house as a condition of bail is not included within the definition of official detention. See Ivie v. State, 179 P.3d 947, 950-51 (Alaska App. 2008).

    Kenneth Lewis was sentenced to a term of imprisonment. DOC placed Lewis at a halfway house in Anchorage based on Lewis’s risk-level. The halfway house authorized inmates to leave the facility for approved reasons (e.g., work release, lawyer meetings, etc.). Lewis received an approved release, and returned as required, but was given a breath test upon his return. The breath test revealed that he had consumed alcohol, which was a violation of the conditions of the halfway house. Staff members told Lewis that he was going to be remanded back to the DOC for violating the facility’s rules. Lewis then walked away from the halfway house. The next day police arrested Lewis. He was ultimately convicted of second-degree escape.

    The Court of Appeals upheld Lewis’ escape conviction recognizing that Lewis was still serving his sentence and was in the custody of DOC. DOC made a discretionary decision to place Lewis at the halfway house. This decision did not change Lewis’s legal status – he remained under official detention. See e.g. Lewis v. State, 312 P.3d 856, 857 (Alaska App. 2013).

    In the end, a person is not guilty of escape just because he leaves confinement. To be guilty of escape, a court must order DOC to confine the defendant, and the defendant must remove themselves from that confinement. If the order authorizing release is a condition of bail, then the person is not under official dentition for purpose of escape.

    Secure Correctional Facility

    Secure correctional facility means any premises used for the secure confinement of persons under official detention. It includes facilities that are specifically designed to restrict someone from leaving without permission, like prisons, jails, or holding cells. It also includes facilities where staff have a duty to physically prevent inmates from leaving, like minimum security facilities or “work farms”. Halfway houses, hospital rooms, or treatment facilities, on the other hand, are excluded. See Bridge v. State, 258 P.3d 923 (Alaska App. 2011).

    If a prisoner only faces legal restraints on their physical liberty (i.e., a residential treatment center), then they are not confined within a secure correctional facility. On the other hand, if a prisoner’s residence at a facility is forcibly maintained, then they are confined within a secure correctional facility.

    Escape

    Alaska’s tough approach to escape begins with its four separate degrees of escape, three of which are felonies. The degree of escape is determined based on several factors: (1) whether a firearm or deadly weapon was used or possessed to facilitate the escape, (2) the place from which the escape occurred, and (3) the seriousness of the defendant’s underlying conduct.

    Escape in the First Degree (Aggravated Escape)

    Escape in the First Degree, a class A felony, is committed when a person removes oneself without lawful authority from official detention by means of a deadly weapon. AS 11.56.300. This would include an armed escape from a secure correctional facility or an armed escape while being transported to jail. The facility escaped from need not be a prison, jail, or holding cell. It includes anyone under official detention. AS 11.56.300(a).

    The aggravating circumstance is the deadly weapon. Recall that a deadly weapon includes any firearm (loaded or unloaded) or anything that is designed for and capable of causing death or serious physical injury. Knives, axes, clubs, metal knuckles, and explosives are all considered deadly weapons. AS 11.81.900(b)(17).

    The crime requires that the prisoner successfully escapes (at least initially). If a prisoner unsuccessfully attempts to escape using a deadly weapon, the prisoner would be guilty of attempted escape. Recall that attempt requires the defendant to take a substantial step towards the commission of the target crime. AS 11.31.100.

    Escape in the Second Degree

    Generally speaking, for purposes of escape classification, the legislature has divided those who escape from official detention into two categories: those who escape while under “official detention for a felony” and those who escape while under “official detention for a misdemeanor.” The former is generally more serious than the latter.

    Escape in the second degree covers an array of conduct, including escapes from secure facilities, escapes while under “official detention for a felony”, prisoners who possess firearms during their recapture, and confined felons who leave house arrest or tamper with an electronic monitoring device to facilitate their escape. AS 11.56.310. Second-degree escape is a class B felony. AS 11.56.310(c).

    First, and arguably the most important, is that all escapes from a secure correctional facility are treated as a second-degree escape. AS 11.56.310(a)(1)(A). Thus, a misdemeanant, as well as a felon, who escapes from a secure correctional facility commits the crime of second-degree escape.

    Second-degree escape also covers the person who escapes while under official detention for a felony or an extradition. AS 11.56.310(a)(1)(B).This would encompass the person who jumps out of a police car after being arrested for burglary.

    Those who evade confinement – either by removing themselves from official detention or by committing unlawful evasion (discussed below) – and possess a firearm while absconding, are guilty of second-degree escape. AS 11.56.310(a)(1)(C);(a)(2). Thus, a misdemeanant who escapes from official detention and possesses a gun before being rearrested is guilty of second-degree escape, as well as the prisoner who fails to return to jail after being granted a temporary release and possesses a gun during their absence.

    Finally, those prisoners who are under official detention for a felony and either (a) remove, tamper, or disable electronic monitoring equipment or (b) leave house-arrest without permission are guilty of second-degree escape. AS 11.56.310(a)(3).

    Escape in the Third Degree

    Escape in the Third Degree is a low-level felony offense and largely deals with misdemeanants who leave official detention by specific means. For example, a person who escapes during any lawful movement incident to confinement while under official detention for a misdemeanor is guilty of third-degree escape. AS 11.56.320(a)(1). This covers the misdemeanant who escapes from a DOC van during transport to the courthouse. It would also cover the incarcerated misdemeanant who escapes during a supervised visit to the dentist’s office after being transported there to have a tooth pulled.

    Third-degree escape also includes leaving a residence or other place where the person is in custody for a misdemeanor; tampering or disabling an electronic monitoring device while under official detention for a misdemeanor; and tampering with or disabling an electronic monitoring device that has been ordered as a condition of bail release. AS 11.56.320(a)(3), (a)(4). This last provision – tampering with an electronic monitoring device while on bail – is the only provision within the escape statutes that address pretrial release.

    Escape in the Fourth Degree

    Escape in the Fourth Degree is a class A misdemeanor and encompasses the least serious conduct associated with escapes. Fourth-degree escape largely covers the residual conduct associated with misdemeanants not addressed in the third-degree escape statute. Specifically, the statute criminalizes misdemeanants who leave official detention. AS 11.56.330(a)(1). This would cover the defendant who flees a halfway house while being confined on a misdemeanor or the person who jumps out of a police car after being arrested for disorderly conduct. The statute also covers escapes occurring during pre-arrest investigative stops (temporary stops based on reasonable suspicion). If a person flees before the police take them into custody, the person is guilty of fourth-degree (misdemeanor) escape. AS 11.56.330(a)(2).

    Unlawful Evasion

    The criminal code includes a lesser offense of unlawful evasion. Unlawful Evasion occurs when a person fails to return to official detention after being granted temporary leave for a specific or limited purpose, such as a work furlough. AS 11.56.335-340. If the person fails to return to official detention while being confined for a felony, the person is guilty of unlawful evasion in the first degree (essentially aggravated unlawful evasion). If the person fails to return to official detention while being confined for a misdemeanor, the person is guilty of unlawful evasion in the second degree.

    The crux of unlawful evasion is that the prisoner fails to return to the facility after being given authority to temporarily leave the premises. Walking away from a facility while under official detention is an escape. Failing to return to a facility after being permitted to temporarily leave is unlawful evasion. See e.g., Barrett v. State, 772 P.2d 559 (Alaska App. 1989).

    Permitting An Escape

    The Code includes a rarely charged offense called permitting an escape. AS 11.56.370. Permitting an Escape occurs when a public servant in charge of prisoners negligently permits a prisoner to evade official detention. The public servant must act with criminal negligence – the disregard of a substantial and unjustifiable risk that the person would escape. This could occur if a jail guard absentmindedly left a prison door unlocked after being told to double-check the door. Permitting an escape is a class C felony. AS 11.56.370(b).

    Promoting Contraband

    Promoting contraband is the voluntary introduction of contraband into a correctional facility. Promoting contraband is divided into two degrees, and the penalty depends on the type of contraband that is involved.

    Contraband is any article or thing that a person confined to a correctional facility is prohibited by law from possessing. The Department of Corrections is responsible for promulgating regulations that define contraband, but generally, it includes money, nicotine, alcohol, and drugs.

    If the contraband is a deadly or defensive weapon (i.e., shank), an article that is intended to be used as a means of facilitating an escape (i.e., a passkey), or a controlled substance (i.e., drugs), the crime is evaluated to Promoting Contraband in the First Degree, a class C felony. AS 11.56.375. If the prohibited item is anything else, the crime is Promoting Contraband in the Second Degree, a class A misdemeanor. AS 11.56.380.

    Promoting contraband applies to both incarcerated and non-incarcerated persons. The person who brings contraband into the facility is just as guilty as the person who makes, obtains, or possesses contraband inside the facility. Thus, both the inmate who receives contraband from a visitor and the visitor are guilty of promoting contraband. See e.g.,Hillman v. State, 382 P.3d 1198 (Alaska App. 2016).

    Finally, recall that all criminal acts must be performed voluntarily for criminal liability to attach. Involuntary acts are not criminal. It is an unresolved question in Alaska whether a defendant is guilty of promoting contraband if the defendant knowingly, but involuntarily, introduces contraband into the correctional facility when the contraband is hidden on their person at the time of their arrest and they are transported to the facility against their will. Compare Idaho v. Gneiting, 468 P.3d 263 (Idaho 2020) (holding that a person who knowingly takes drugs into a detention facility that are hidden inside a body cavity does so voluntarily, even though they entered the facility involuntarily) and Oregon v. Tippetts, 43 P.3d 455 (Or. 2002) (holding that a defendant did not voluntarily introduce marijuana into county jail since the defendant was brought to jail involuntarily pursuant to an arrest).

    Violation of Conditions of Bail Release

    A person commits the crime of violating conditions of release when that person has been charged with a crime, released on bail, and violates a court-imposed bail condition. AS 11.56.747. Conditions of bail are not typically stand-alone criminal offenses, but instead conditions designed to ensure that the defendant appears at future court hearings and protect the public. Conditions of bail can frequently cover a large array of conduct, including not possessing alcohol, not having contact with a particular person (e.g., the victim), or staying away from a particular location (e.g., the scene of the crime). AS 12.30 et. seq.

    Violating conditions of release is a class A misdemeanor if the defendant’s underlying charge is a felony and a class B misdemeanor if the defendant’s underlying charge is a misdemeanor. AS 11.56.757(b).

    Failure to Appear

    A person commits the crime of failure to appear if the person knowingly fails to appear for a hearing in a criminal prosecution. AS 11.56.730. This occurs when a defendant is released on bail and fails to appear before the court at a subsequent court hearing. Failure to appear is a new crime, independent of the underlying charge.

    The law provides an affirmative defense if due to unforeseen circumstances outside of the person’s control the person fails to appear. AS 11.56.730. For example, if a defendant is involved in a car accident on the way to the court hearing, the defendant could raise the affirmative defense and argue that they should not be held criminally liable for the new crime of failure to appear.

    Like violating conditions of release, failure to appear is a class A misdemeanor if the defendant’s underlying charge is a felony and a class B misdemeanor if the defendant’s underlying charge is a misdemeanor. AS 11.56.730(d).

    Resisting Arrest

    Resisting arrest prohibits an individual from using force to prevent an arrest. AS 11.56.700. The crime is a specific intent crime – to be guilty of resisting arrest, a person must intend to prevent the officer from making an arrest through the use of force. If the defendant uses force at any point during the process of taking a suspect into custody, the defendant has committed the crime of resisting arrest. See Fallon v. State, 221 P.3d 1016, 1020 (Alaska App. 2010).

    The crime of resisting arrest requires the use of force. Recall that force means “any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint or confinement.” AS 11.81.900(28). Mere non-submission (passive resistance) during an arrest is not force. See e.g. Howard v. State, 101 P.3d 1054 (Alaska App. 2004). For example, “turtling” and yelling are not acts of resisting arrest; there is insufficient force. Conversely, actions directed at the arresting officer (i.e., pushing away from the arresting officer or repeatedly trying to get up from the ground during a struggle) are acts of resisting arrest. See e.g., Bultron v. State, 2011WL 5627897 (Alaska App. 2011).

    A Tale of Two Arrestees…

    One evening in Soldotna, two troopers went to the house of Warren Eide to arrest him for vehicle theft. Troopers found Eide on the floor in a sleeping bag. Troopers told Eide several times that he was under arrest. One trooper grabbed Eide by the wrist to pull him up, but Eide jerked away, and told the trooper, “No, leave me alone, I ain’t going.” Eide rolled onto his stomach with his arms underneath him. Troopers told Eide several times to “stop resisting arrest.”

    The troopers were concerned that they or Eide would get hurt if they had to wrestle Eide into submission. Accordingly, the trooper deployed an electric shocking device (Taser) on Eide to gain his cooperation. The electric shocking device caused immediate pain to Edie. Eide immediately jumped up and submitted to his arrest.

    Eide was convicted of resisting arrest (in addition to the original charge of vehicle theft). The Court of Appeals reversed Eide’s resisting arrest conviction, noting that Eide’s conduct of “turning ‘turtle’ and announcing that he was not going with the trooper does not rise above ‘mere non-submission’” because Eide’s conduct did not actively create a danger of physical injury. See Eide v. State, 168 P.3d 499 (Alaska App. 2007).

    On a different evening in Soldotna, a trooper was patrolling the Sterling Highway when he spotted a vehicle in the ditch. During the trooper’s investigation, the trooper determined that the driver, Chris Fallon, was intoxicated. The trooper placed Fallon under arrest for driving under the influence.

    When the trooper was arresting Fallon, he directed Fallon to put his arms behind his back. Fallon initially complied, but then tensed his arms and pressed them against his back so the trooper could only handcuff one arm. The trooper told Fallon several times to relax and stop resisting, but Fallon became verbally belligerent and continued to tense his arms. The trooper was concerned that Fallon might assault him, so he pepper sprayed Fallon. It had no effect. Fallon began pushing himself away from the patrol car, so the trooper took Fallon to the ground. During the struggle, the trooper could still not handcuff Fallon because Fallon kept trying to get up and continued to tense his arms. It was not until a passing motorist stopped to assist that the trooper was able to handcuff Fallon and secure him in the patrol car.

    Fallon was convicted of resisting arrest (in addition to DUI). The Court of Appeals upheld the resisting arrest conviction, noting that Fallon’s conduct went beyond mere non-submission, and instead, was force directed at the trooper. See Fallon v. State, 221 P.3d 1016, 2021 (Alaska App. 2010).


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