Prosecution of Escapes by Federal Prisoners Who Have
Surrendered to the Temporary Custody of State Authorities Pursuant to State
Writs of Habeas Corpus Ad Testificandum and Ad Prosequendum
In cases where federal prisoners are released to the temporary custody
a state institution and state officials on state writs of habeas corpus ad
testificandum or ad prosequendum, indictments and informations for escape
such custody should be drafted to reflect that the defendant escaped from
custody of the Attorney General in a named state institution in which he/she
confined by direction of the Attorney General pursuant to 18 U.S.C. §
as discussed herein.|
In the past, federal prisoners whose temporary custody was sought by
authorities on writs of habeas corpus ad testificandum were transported to
requesting state Deputy United States Marshals and remained in the actual
of the Marshals Service. Escapes were prosecuted under 18 U.S.C. §
Today, however, the transportation of federal prisoners to state courts and
custody of such prisoners is generally assumed by state authorities.
Consequently, older case law regarding escapes from custody by prisoners on
of habeas corpus ad prosequendum and ad testificandum will not be helpful.
find a basis for federal prosecution for escapes by federal prisoners in the
custody of state authorities, it has been necessary to make a careful
of the escape statute, 18 U.S.C. § 751, and related statutes.
Our analysis leads to the conclusion that there are, in all, six
in which federal escape charges may be brought. Of these, two may provide a
basis for escape prosecution of federal prisoners being held in state
under writs of ad prosequendum and ad testificandum. Under 18 U.S.C.
751(a), escape prosecutions may be brought in the following situations:
- When the escape is from the custody of the Attorney General
his authorized representative;
- When the escape is from any institution designated by the Bureau of
Prisons. This provision should be read in conjunction with 18 U.S.C.
3621(b), which authorizes the Bureau of Prisons to designate any institution
facility whether maintained by the federal government or otherwise;
- When the escape is from custody under any federal process; and
- When the escape is from custody pursuant to a lawful arrest.
- In addition, there are two other statutory provisions which provide a
for escape prosecutions:
- Under 18 U.S.C. § 4082(a), a prisoner is deemed to have escaped
he/she willfully fails to remain within the extended limits of confinement,
fails to return within the time prescribed to an institution or facility
designated by the Attorney General. The limits of a place of confinement
extended by placing a prisoner on leave or furlough. 18 U.S.C. §
makes escapes from furlough or work/training release programs prosecutable
Chapter 35 of Title 18; and
- Under the Interstate Agreement on Detainers Act, Public Law 91-538, 18
U.S.C. Appendix, Section 2, Article V(g), any escape from temporary custody
a prisoner surrendered to a state authority pursuant to a writ ad
"may be dealt with in the same manner as an escape from the original place
imprisonment or in any other manner permitted by law."
Of these six, only the second provides a basis for federal escape
prosecution in all cases where temporary custody is surrendered to states on
state writs of habeas corpus ad testificandum and ad prosequendum. Thus,
recommended that if a federal prisoner is temporarily transferred to a state
institution or jail-type facility in order to respond to a state writ of
corpus ad testificandum or ad prosequendum, he/she may be prosecuted for
escape therefrom under 18 U.S.C. § 751(a), which proscribes escapes
institution designated by the Attorney General. An escape from a state
which has been designated as a place of confinement for a federal prisoner
escape from the custody of the Attorney General. United States v.
519 F.2d 765, 770 (9th Cir.), cert. denied, 423 U.S. 931 (1975).
[cited in USAM 9-69.500]