I’ve got some bad news. You’ve been arrested for a crime you didn’t commit. The specific crime doesn’t really matter. Maybe it was high treason, maybe murder, maybe international terrorism. Those are just details. What does matter is that you’ve been framed, and the case against you is ironclad. In fact, the authorities are so convinced of your guilt that they won’t even listen when you proclaim your innocence. To make matters worse, the real perpetrator is still out there, hatching an even bigger scheme to destroy the world as we know it.
The question is — what are you going to do now? Anyone with a passing familiarity with pop culture knows what happens next. You’re going to escape, clear your name, and bring the real criminals to justice. We’ve seen this story play out dozens of times over the years in The Fugitive, Minority Report, Prison Break, 24, and nearly every Jason Bourne movie.
But the movies rarely show what happens after the credits roll. This week, I’ll consider how the law would treat an escapee who was able to clear their name by finding exculpatory evidence.
The Problem with Escape
Regardless of one’s innocence, it is illegal to evade arrest or to escape from police custody or prison. That makes sense. One of the essential features of our justice system is that it provides every defendant a fair opportunity to collect evidence and present a defense. The system is designed to be flexible and is administered by judges who have discretion to change the timing, form, or setting of the trial to account for unusual or unexpected circumstances.
This means that a defendant need only ask the judge for permission to conduct their own investigation, to delay the trial until more information is uncovered, or to arrange for additional security measures to protect them or their family. If the request is reasonable, the judge can grant it. If the request is erroneously denied, the defendant can appeal any subsequent conviction and receive a new trial. In the eyes of the law, the usual Hollywood-style justifications for escape are illegitimate.
The result is that escape is viewed as a distinct crime in the United States, evaluated independently from the original wrongdoing. But not all escapes are the same. The severity of an escape depends on when and where it takes place. At one end of the spectrum are acts that arguably don’t even qualify as an escape, such as avoiding the police. Simply being the subject of an investigation or even an arrest warrant is not a crime. While evading police or other law enforcement officials could be used as a basis to deny bail, it is not likely to lead to criminal charges.
Things are much worse for suspects who flee from officers who are actively attempting to apprehend them. Resisting arrest is a crime, but it’s a relatively minor offense. While the specific details vary from state to state, a person who runs from police on foot can generally be charged with a misdemeanor, while a person involved in a car chase or someone who causes property damage over the course of an escape can be charged with a felony.
The most serious category of escape involves individuals who escape after being convicted of a crime. The specifics vary from state to state, but generally speaking, the more severe the underlying crime, the more serious the escape considered. For example, in Missouri, escaping from custody is a misdemeanor if the underlying conviction is for a misdemeanor, and it is a felony if the underlying conviction is for a felony. Interestingly, in some countries, like Mexico, escape is not considered a crime, and escapees are not subject to any additional punishments for escape attempts.
Gaming Out the Scenarios
With those basics under our belts, we can consider the best- and worst-case scenarios for an escapee. For the purposes of this analysis, I’ll consider a Hollywood hero who escaped from prison after being convicted.
In the best-case scenario, the escapee would execute a well-designed escape plan and encounter little or no resistance from prison guards or other law enforcement officials. The escape would involve little or no property damage and would not involve the use of force. Once the escape is complete, our hero would conduct an investigation and find compelling evidence showing that he did not commit the crime that led to his initial conviction. Since we’re in the absolute best-case scenario, we can also say that our hero uncovered evidence of a conspiracy that would explain why he could not have presented the evidence during his initial trial. The hero would then give the evidence to his attorney and surrender to the authorities.
The hero would still likely be charged for the unlawful escape, and to minimize his sentence he would plead guilty. At sentencing, the court would consider the non-violent nature of his escape, his voluntary return, and the public service he performed by uncovering a national or international conspiracy.
At the same time, the hero would seek to have his previous conviction overturned based on the evidence he found during his escape. This is very hard to do and requires compelling evidence. But since we’re in the best-case scenario, we can assume that the evidence is available and that the court was willing to reverse the conviction. Most people are not so lucky — even if they have DNA evidence proving their innocence.
Using the reversed conviction, the hero could argue that instead of going to jail for his escape attempt, he should be given credit for the time he spent in jail due to the improper conviction. The story of Orlando Boquete is actually very close to this scenario. He was convicted of burglary and attempted sexual battery, escaped from prison, and later proved his innocence with DNA evidence.
The worst-case scenario involves the same steps, but with the facts turned around. Instead of a stealthy, conflict-free escape, there would be violent altercations, an extended car chase, millions of dollars in damage, and significant injuries for law enforcement officials and civilians. The hero might find exculpatory evidence, but it’s destroyed before he can use it. He’s also involuntarily captured instead of surrendering himself to the authorities. In this scenario, the initial conviction would not be overturned and our hero would be subject to criminal charges and civil liability for the damage and destruction caused by the escape. He would be returned to prison with an additional 20 or so years added to his sentence.
The scenarios above show that there can be a lot of variability when it comes to escapes. The unfortunate reality, however, is that most jailbreaks are closer to the worst-case scenario. Most escapees do not seek to prove their innocence or uncover a conspiracy, but instead simply seek to get out of jail. When it comes to violent criminals, we can be thankful that there is no Get Out of Jail Free card. That may be bad news for The Fugitive’s Richard Kimble or Marvel’s Bucky Barnes, but it’s good news for pretty much everyone in the real world.