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1813. Prosecution Of Escapes By Federal Prisoners Who Have Been Surrendered To The Temporary Custody Of State Authorities Pursuant To State Court Writs Of Habeas Corpus Ad Testificandum And Ad Prosequendum

In cases where federal prisoners are released to the temporary custody of a state institution and state officials on state writs of habeas corpus ad testificandum or ad prosequendum, indictments and informations for escape from such custody should be drafted to reflect that the defendant escaped from the custody of the Attorney General in a named state institution in which he/she was confined by direction of the Attorney General pursuant to 18 U.S.C. §  4082, as discussed herein.

In the past, federal prisoners whose temporary custody was sought by state authorities on writs of habeas corpus ad testificandum were transported to the requesting state Deputy United States Marshals and remained in the actual custody of the Marshals Service. Escapes were prosecuted under 18 U.S.C. §  751(a). Today, however, the transportation of federal prisoners to state courts and the custody of such prisoners is generally assumed by state authorities. Consequently, older case law regarding escapes from custody by prisoners on writs of habeas corpus ad prosequendum and ad testificandum will not be helpful. To 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 analysis of the escape statute, 18 U.S.C. § 751, and related statutes.

Our analysis leads to the conclusion that there are, in all, six situations 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 custody under writs of ad prosequendum and ad testificandum. Under 18 U.S.C. §  751(a), escape prosecutions may be brought in the following situations:

  1. When the escape is from the custody of the Attorney General or his authorized representative;
  2. 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 or facility whether maintained by the federal government or otherwise;
  3. When the escape is from custody under any federal process; and
  4. When the escape is from custody pursuant to a lawful arrest.

    In addition, there are two other statutory provisions which provide a basis for escape prosecutions:

  5. Under 18 U.S.C. § 4082(a), a prisoner is deemed to have escaped if he/she willfully fails to remain within the extended limits of confinement, or fails to return within the time prescribed to an institution or facility designated by the Attorney General. The limits of a place of confinement are extended by placing a prisoner on leave or furlough. 18 U.S.C. §  4082(a) makes escapes from furlough or work/training release programs prosecutable under Chapter 35 of Title 18; and
  6. 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 of a prisoner surrendered to a state authority pursuant to a writ ad prosequendum "may be dealt with in the same manner as an escape from the original place of 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, it is 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 habeas corpus ad testificandum or ad prosequendum, he/she may be prosecuted for his/her escape therefrom under 18 U.S.C. § 751(a), which proscribes escapes from any institution designated by the Attorney General. An escape from a state facility which has been designated as a place of confinement for a federal prisoner is an escape from the custody of the Attorney General. United States v. Hobson, 519 F.2d 765, 770 (9th Cir.), cert. denied, 423 U.S. 931 (1975).

[cited in JM 9-69.500]

Updated January 17, 2020