Decriminalizing 'Mere' Walkaway Prison Escapes Is a Mistake

Oxford University Comparative Law Forum, 2023

11 Pages Posted: 30 Nov 2023

See all articles by T. Markus Funk, PhD

T. Markus Funk, PhD

University of Colorado School of Law; University of Oxford

Multiple version iconThere are 2 versions of this paper

Date Written: October 15, 2023

Abstract

To the surprise of many, a number of countries, including Germany, Mexico, Austria, Belgium, The Netherlands, and Switzerland, do not permit charges to be filed against a prisoner who "merely" walks away from a prison (that is, engages in a prison escape not involving aggravating circumstances such as threatened or actual violence, bribery, theft, or property damage). Additional charges are not permitted regardless of how often the prisoner tries to escape, how serious the offender's criminal history and danger to the public is, or what resources the government had to expend to recapture the escapee.

The internally inconsistent and arguably outdated rationale for the decision to permit walkaway prison escapes is that the “urge to be free” is said to be so ingrained in human nature that a prisoner merely following the “instinct to escape” is considered insufficiently morally blameworthy to justify the filing of separate criminal charges, regardless of how many escape attempts the inmate made or how dangerous the inmate’s criminal past and proclivities make him or her.

In contrast to this modest subset of countries, most, including the United States, strictly prohibit such walkaway prison escapes and have laws on the books ensuring significant additional jail time once the escapee is captured.

The argument advanced here is that there is nothing morally wrong with taking an empathetic approach to crime, questioning aspects of the United States' sentencing approach and expansive carceral system, and recognizing that human nature can sometimes cause even the best-intentioned among us to make bad, sometimes criminal, decisions. That said, a well-run, democratic system of justice should not permit the subjective desire for freedom to trump the justice system’s need to ensure that convicts serve their sentences and society is protected. In a society governed by the rule of law, providing for the possibility of criminally punishing walkaway escapes goes far toward safeguarding important communal, economic, and institutional interests.

Keywords: prison, criminal law, criminal justice, escape, penology, carceral system, comparative law, Germany, Mexico, Austria, Switzerland, The Netherlands

Suggested Citation

Funk, PhD, T. Markus, Decriminalizing 'Mere' Walkaway Prison Escapes Is a Mistake (October 15, 2023). Oxford University Comparative Law Forum, 2023, Available at SSRN: https://ssrn.com/abstract=4602977

T. Markus Funk, PhD (Contact Author)

University of Colorado School of Law ( email )

401 UCB
Boulder, CO 80309
United States

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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