The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Criminal Law

Against "Decriminalizing Nonviolent Prison Escapes"


An interesting new article in The Hill by my occasional coauthor T. Markus Funk, based on his upcoming Oxford University Comparative Law Forum piece on the subject; an excerpt:

[I]t would be a mistake to accept the invitation to follow the examples of countries like Germany, Switzerland, Mexico, the Netherlands and Austria, which do not outlaw nonviolent prisoner escapes ….

German law exemplifies the logic used to justify this lenient approach. The "urge to be free" is said to be deeply ingrained in human nature, rendering the prisoner acting on the "instinct to escape" insufficiently morally blameworthy to justify additional charges. The number of prior escape attempts, like the inmate's criminal history, do not factor in….

[But] democratic, rule-of-law-based justice systems, like the prisons that house those unwilling to comply with society's most basic rules, are purpose-built to protect the public from convicted criminals …. They use punishment to deter undesirable conduct….

[Escapees also] pose a significant threat to those assigned to recapture them, as well as to the public more generally. Further, recapturing an escapee — particularly one who has crossed state lines or the U.S. border — also predictably places a significant financial burden on the taxpayer….

There is nothing wrong with taking a more empathetic approach to crime, questioning aspects of our sentencing policy and prison system, and recognizing that human nature can sometimes cause even the best intentioned among us to make bad, sometimes criminal, decisions.

But our system of justice is premised on the expectation that we will conform our conduct to the law's requirements, even when doing so is anything but easy….