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Escaping the Asylum: When Freedom is a Crime

115 Pages Posted: 17 Jun 2003  

Grant H. H. Morris

University of San Diego, School of Law - Professor of Law Emeritus


This article discusses the constitutionality and desirability of laws that criminalize escape by civilly committed mental patients from the hospitals or other treatment facilities in which they are confined. Although escape by sentence-serving convicts is a crime in many states, regardless of whether they escape from prison or from another place of confinement or custody, escape by "regular" civilly committed mental patients is not. Nevertheless, criminalization of escape is becoming increasingly popular for "special" civilly committed patients, such as individuals who have been acquitted of crime by reason of insanity and sexually violent predators. Pivotal Supreme Court decisions involving specially categorized mental patients are analyzed to assess whether criminalization of escape by these patients is constitutional. Of particular interest is the equal protection argument: If regular civilly committed mental patients are not prosecuted and punished for escape, can special civilly committed patients be prosecuted and punished?

The article also discusses alternatives to the criminalization of escape that would assure the public's safety while avoiding constitutional challenges. Criminalization of escape by mental patients may be an unnecessary, and unwise, policy judgment if the risk of escape can minimized through enhanced security measures to prevent escape, treatment opportunities that offer patients the prospect of release, and clarification of authority to apprehend and return patients if escape does occur. Nevertheless, the article concludes by questioning whether public pressure to confine, and if possible, punish specially civilly committed patients will preclude use of these rational alternatives to criminalization of patient escape.

JEL Classification: K10, K14, K42

Suggested Citation

Morris, Grant H. mname, Escaping the Asylum: When Freedom is a Crime. San Diego Law Review, Vol. 40, No. 2, 2003. Available at SSRN: or

Grant Harold Morris (Contact Author)

University of San Diego, School of Law - Professor of Law Emeritus ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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