By Dr. T. Markus Funk*

(2023) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Image link.

On the last day of August 2023, video captured 34-year-old convicted killer Danelo Cavalcante escaping his Pennsylvania maximum security prison by crab-walking up two walls separated by a five-foot hallway.^[1] Cavalcante was serving a life sentence for his brutal April 2021 stabbing murder of ex-girlfriend Deborah Brandao, an attack that took place in front of her two small children.^[2] He additionally is wanted in his native Brazil for felling a friend in a hail of bullets. (Only his 2018 decision to illegally enter the United States has thus far allowed him to avoid facing those charges.)

Cavalcante was and is a dangerous, hardened criminal—which explains why his escape made international news during the two weeks he was able to evade recapture despite the ongoing “intense manhunt.”^[3]

The United States is a country grappling with criminal justice reform efforts, many of which are sensible, morally compelled, and overdue. But it 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 non-violent prisoner escapes such as Cavalcante’s.^[4]

Prisoner Escapes Relatively Common

In the United States, as well as around the world, prison escapes such as Cavalcante’s occur with surprising regularity. US Department of Justice statistics show that approximately 3% of all prisoners try to escape at some point while serving their sentences.^[5] With a prison population approaching 2 million, this amounts to some 2,000 escapes a year.^[6]

Hollywood has in fact developed its own genre of movies based on prison escapes, frequently featuring, for dramatic effect, wrongly convicted escapee-protagonists. Classics like “The Fugitive”, “The Great Escape”, “The Defiant Ones”, “Midnight Express”, “The Shawshank Redemption”, “Escape from Alcatraz”, and “O Brother, Where Art Thou?” most immediately come to mind. In the movies, as in the United States and most countries around the world, the price for getting caught is high. Recaptured escapees face additional jail time, as well as harsher conditions of confinement.

Consider, for example, 54-year-old Timothy Clausen, who in 2018 escaped from the Lincoln Correctional Center in Nebraska. Clausen, who was serving a 50-year sentence for first-degree sexual abuse of a child, and another inmate escaped by hiding in a laundry basket that vendors collected and then drove out of the prison. Law enforcement caught the men after they stole a car and led the police on a high-speed chase. The escape itself, however, was non-violent. That did not stop the judge from sentencing Clausen to an additional 80–140 years in prison.^[7]

But several countries, including ones with highly developed criminal justice systems, do not punish “walkaway” escapes not involving aggravating circumstances such as threatened or actual violence, bribery, theft, or property damage. In these countries, a “mere” walkaway escape such as the ones undertaken by Cavalcante and Clausen would not face an additional day in prison for their escape (though prosecutors, of course, can still charge crimes committed during and following the escape).

This de facto immunity from prosecution is also not contingent on the significance of the resources expended on the escapee’s recapture. Nor do the seriousness of the offense that resulted in the initial carceral sentence, or the related potential danger posed to the public or those seeking to apprehend the escapee and return the prisoner to custody, matter. In these countries, walkaway escapes are never prosecutable, period.

Germany’s Rationale for Permitting Walkaway Escapes: The Inmate’s Basic Human “Urge to Be Free” Removes Moral Blame

Section 120 of the German Criminal Code (Strafgesetzbuch or StGB) provides that helping others escape is unlawful.^[8] That said, German lawmakers did not similarly outlaw the self-directed decision to escape (Gefangenenselbstbefreiung).^[9]

German law’s justification for not criminalizing walkaway escapes is generally the same as found in those other countries that permit them. The “urge to be free” (der natürliche Drang nach Freiheit) 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.^[10]

This rule against imposing punishment on those who escape without damage to property or harm to persons has been the law in Germany since the 1800s.^[11] It is tethered to Article 2 in Germany’s “Basic Law”/Constitution (Grundgesetz), which provides that “the freedom of a person is inviolable” (die Freiheit der Person ist unverletzlich).^[12]

Being imprisoned, so the German argument goes, violates individual freedom and, thus, human nature; a prisoner seeking freedom is accordingly viewed as simply acting consistent with the impulse for freedom captured in Article 2.^[13] And so when 40-year-old Rachid Chouakri, who in 2013 was convicted of strangling a 76-year-old female kiosk operator to death, in early 2023 fled from a courtroom through an unlocked conference room window in Regensburg, Germany, his resource-intensive recapture a few days later in France resulted in no additional charges.^[14] Chouakri, who is from Algeria and entered Germany illegally, at the time of his escape was in court facing charges related to his alleged assault of prison guards.^[15]

Even though the lack of punishment for escaping or attempting to escape undermines the goals of specific and general deterrence (to say nothing of incapacitation or rehabilitation), German inmates can in fact attempt to flee prison as often as they want without fear of formal sanction, provided they cause no personal harm or property damage in the process. That said, even in Germany, the escapee who the police capture and return to prison will in most cases be subjected to more restrictive and secure conditions, and thus less pleasant, confinement in German prison (Justizvollzugsanstalt or JVA).

Germany’s maximalist conception of an individual’s right to freedom and autonomy is broadly consistent with Germany’s law of self-defense (Notwehr).^[16] Pursuant to Section 32 of the StGB, individuals can use defensive force, up to and including deadly defensive force, to protect a broad swath of rights, including the right to individual autonomy and the protection of one’s property.

At the same time, however, it is difficult to reconcile this permission to escape with German self-defense law’s primary justification, namely, the defense and protection of the empirical inviolability of the legal order (the Rechtsbewährungsprinzip, which translates into “protection of the legal order justification”). Pursuant to this long-standing foundational view, a German defender’s exercise of legitimate defensive force ensures that the collective legal order is protected and preserved, and that the “right need not yield to the wrong” (das Recht muss dem Unrecht nicht weichen). The contemporary consensus view (Herrschende Meinung) among German scholars is that German self-defense law’s “harshness” (Schneidigkeit or Schärfe) is in fact derived from this traditional collective legal order justification.^[17]

Although beyond the scope of this article, it is difficult to reconcile a legal regime that permits a prisoner convicted of murder to sneak out of a prison with no risk of criminal sanction with an authorized criminal defence premised on advancing the systemic imperative of protecting the legal order. Sanctioning prisoner escape, if nothing else, certainly appears to undermine the legal order and the rule of law. Additionally, it appears to significantly undermine the core concept that the right (here, the justice system) need not yield to the wrong (the prisoner’s unilateral decision to free him or herself from the justly imposed term of imprisonment).

Germany Is Not Alone in Permitting Walkaway Escapes

Beyond Germany, other countries also decriminalize non-violent walkaway escapes. Had Cavalcante escaped in Mexico, Austria, Switzerland, the Netherlands, Belgium, or Switzerland, for example, he also would not have faced a single additional day in prison:

• Mexico follows the Germany approach by recognizing that the desire for liberty and freedom is considered an essential part of human nature and, therefore, a basic human right.^[18] As Jose Elias Romero Apis, member of Mexico’s lower house of Congress, put it, “[f]reedom is given priority over other values, including prison security.”^[19] As a result, per Federal Penal Code (Código Penal Federal) § 154, “[n]o sanction will be applied to the prisoner who escapes, except when he acts in concert [with others to effect an escape].”^[20]
• Austria, where only 80% of escapees are recaptured, also has no law prohibiting walkaway escape because it recognizes the inmates’ inherent desire to be free (Freiheitsdrang).^[21]
• Belgium also does not criminalize walkaway escapes.^[22]
• The Netherlands recognizes the right to try to escape in pursuit of the inmate’s pursuit of his or her fundamental and inalienable right to freedom and liberty.^[23] The government’s argument, which offers a slightly modified version of the logic advanced by the German justice system, is that, like the right against self-incrimination so as to not contribute to one’s own punishment, not taking advantage of an opportunity to escape also constitutes self-punishment.^[24] Of course, the most obvious problem with this line of reasoning is that it conflates the right not to act in the case of self-incrimination with the decision to take affirmative steps to physically escape from incarceration.
• Switzerland leads Europe in prison escapes (255 escapees for every 10,000 inmates—compared to 61 in Germany, 252 in Finland, 238 in Sweden, 88 in France, 30 in Austria, and 2 in Spain; the United States has an average of 200 escapes for every 10,000 inmates).^[25] Conceptually similar to the Dutch approach, Switzerland ties the right to escape to the right to engage in self-enrichment (Selbstbegünstigung) so long as the conduct does not harm others.^[26] The Swiss government, like in the Netherlands, somewhat awkwardly advances the right to not incriminate oneself as an example of such “self-enrichment.”^[27] As detailed below, however, the Swiss government’s necessary claim that escape is a harmless, cost-free crime misses the mark rather considerably; it, among other things, overlooks the insecurity created among the public, the threat to the rule of law, the risk to the governmental agents assigned to recapturing the escapee, and the oft-significant financial impact on taxpayers who shoulder the recapture costs.

Comparing US and European Prisons, Prisoners, and Theories of Penology

With the exception of Mexico, one commonality among this small cross-section of jurisdictions that permit walkaway prison escapes is that they are all in Western Europe and have comparatively unfortified prisons with far more lax security than is the norm in the typical prison in, say, the United States—or, for that matter, the prisons one finds in South America, Africa, Asia, and other countries that all criminalize all forms of attempted or completed escape.^[28]

The need for more secure prison environments in the United States can be traced, in part, to the length of the average US prison sentence. In the United States, judges hand down sentences of imprisonment that tend to be longer than those imposed in Europe. For example, in the United States, an average sentence for having engaged in first-degree homicide is 40.6 years; in France the sentence for the same offense averages out to 6.1 years; and in Germany, the typical sentence served by a person sentenced to life imprisonment for first-degree murder is 12–18 years.^[29]

Putting these incarceration statistics in context, the murder rate per 100,000 residents in the United States is 6.81, compared to 28.18 in Mexico, 1.14 in France, .83 in Germany, .73 in Austria, .65 in the Netherlands, and .48 in Switzerland. Leading the world’s murder rates are Jamaica with 52.13 and South Africa with 41.87 murders per 100,000 residents; the world’s average, moreover, is 2.6 murders per 100,000 residents.^[30]

The United States also accounts for 40% of the world’s population of inmates serving actual life sentences in prison, as well as 83% of those sentenced to life imprisonment without the possibility of parole. Finally, the United States leads the world in terms of its incarceration rates, with up to 400,000 individuals sentenced to state or federal prison each year, followed by China, Brazil, India, and Russia, respectively.^[31]

In a further deviation from the United States approach that is relevant to the conditions of confinement, in most European countries, privacy and prisoners’ self-directed conduct, such as permitting inmates to wear their own clothes (as opposed to the prison-issued uniforms ubiquitous in the United States) and cook their own meals, are considered necessary to prepare inmates for release into mainstream life. In the United States, in contrast, the focus, particularly for violent criminals, tends to be more squarely on incapacitation, deterrence, and retribution, all of which support a comparatively restrictive prison environment, mandatory minimum sentences, and other means of ensuring that prisoners are more severely punished and tightly controlled.^[32]

Differences in penological theory go far in explaining these divergent sentencing and incarceration approaches. The general European approach has traditionally been animated by a pursuit of the “rehabilitative ideal” and the associated belief that criminality is a manifestation of society failing the criminogenic individual.^[33] Unlike in the United States, convicts are not as a default considered morally damaged individuals but rather candidates for rehabilitation and reintegration.^[34] As a result, European sentencing tends to focus more on the act than the actor, with judges being less willing to carve convicted criminals out of society.^[35]

In contrast, in the United States that perception is resoundingly different. The US criminal justice system largely considers convicted criminals to be morally blameworthy individuals who failed society (as opposed to the other way around). As a manifestation of this philosophy, felons in the United States can temporarily or permanently lose certain important civil rights, including the right to vote, run for state office, sit on a jury, and possess a firearm.^[36] They, in short, are both literally and symbolically placed outside of ordinary society, suffering what some have called a “civil death.”^[37]

Of course, the European prison population has historically also been far less violent and recidivistic than prisoners in the United States. I say “historically” because these statistics are rapidly changing.^[38] Over the past decade, criminality, including violent and organized crime, has become far more widespread throughout Europe.^[39] These accelerating crime rates, in turn, have stoked the population’s growing fear of crime and victimization—and, correspondingly, have eroded the more empathetic, sympathetic view of criminals and the origin of criminality.

Those non-U.S. justice systems that have opted not to punish walkaway escapes reached their decisions at times when their crime rates were comparatively low, prisons tended to be largely calm and nonviolent places, and the population believed in rehabilitation and lacked a widespread fear of crime.

Today, as this picture of crime and the individual offender is becoming cloudier, it may very well be the case that there is less sympathy among the European population for a maximalist conception of, and concern for, prisoner’s desire to be free.^[40] As unease about victimization and social instability grows, it stands to reason that so do worries about maintaining law and order and the rule of law. As such, it is reasonable to predict that laws permitting walkaway prisoner escapes will, if anything, go further out of favour.

Exploring the (Very Limited) “Necessity” and “Duress” Defences to Prisoner Escape Under US Law

In the US there have been walkaway cases such as the ones discussed in the California Court of Appeals ruling of People v. Lovercamp.^[41] In that case, the court narrowly agreed that the two defendants, who claimed the prison conditions exposed them to an imminent and severe safety risk, could raise the defence of necessity.

In United States v. Bailey, the Court of Appeals for the District of Columbia fashioned a similar defence based on intent rather than duress.^[42] In that case, the court held that dangerous prison conditions can negate the specific intent and voluntariness required to convict someone of the federal crime of escape.

The US Supreme Court, however, disagreed with this creative analysis.^[43] It held that, to deserve an instruction on duress or necessity as a defence to a charge of escape, an escapee must first offer evidence justifying his or her continued absence from custody as well as his or her initial departure. An indispensable element of such an offer is evidence establishing a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. In the case before the Court, it concluded that the record did not contain such evidence necessary for a defence to the continuing offense of escape from federal custody.

Some scholars, perhaps unfamiliar with or ignoring Bailey, continue to argue that crowded prison conditions are writ large so intolerable and dangerous that prisoners should be able to raise duress or necessity defences to defeat escape charges.^[44] So far, however, US courts and legislators have not budged: escaping to save one’s life where an escape might be justified is very different from simply fleeing prison to be free from the conditions of confinement, where escape is not justified.

US Law Criminalizes Becoming a Fugitive—but When It Comes to Harbouring a Fugitive, US Law Does Recognize a Limited “Following Natural Human Instincts” Defence

Prison escape is, and always has been, punishable under US federal and state criminal statutes. Yet, US law curiously does recognize the notion that a person simply following “natural instincts” may not always warrant incarceration. Setting aside common defences such as necessity, duress, and self-defence, which are also premised on common human instincts, at least 14 US states, including Illinois, Iowa, North Carolina, and Kentucky, permit relatives to help harbour or hide a related fugitive.^[45]

Virginia’s statute, for example, explicitly states that “no person in the relation of spouse, parent or grandparent, child or grandchild, or sibling . . . who, after the commission of a felony, aids or assists a principal felon or accessory before the fact to avoid or escape from prosecution or punishment, shall be deemed an accessory after the fact.”^[46] The statute provides no carve-out for offenders who engaged in particularly serious offenses (such as a serial killer), nor is it limited to those who merely passively harbour or assist their fugitive family member (by, say, not revealing the whereabouts of the fugitive when asked by the police).

Using a hypothetical to illustrate the operation of this law, a wife who provides her convicted child-murderer husband with an escape vehicle and money and then, with the intent to obstruct the investigation, falsely tells the police that her husband has left the country is acting entirely within her rights in Virginia.

As the Florida Court of Appeals, upholding the state statute against an equal protection challenge, put it, the legislature made an intentional, praiseworthy decision to “confer[] immunity so that these individuals need never choose between love of family and obedience to the law.”^[47] As was the case in Virginia and most of the other states that provide such protections, neither the seriousness of the underlying crime nor the vigorousness of the family member’s concealment efforts changes the fact that all otherwise applicable charges are unavailable.

Even if there are sound public policy reasons for questioning these more permissive rules, it is fair to say that helping a relative remain free is normatively and morally distinguishable from a prisoner deciding to free him or herself.

The “Human Frailty” Argument Oversimplifies the Important Moral, Practical, and Institutional Issues at Stake

As just noted, on both the federal and state levels, escape continues to be a criminal offense in the United States, even if some states do not punish family members who aid and abet prisoners in their escape efforts. For example, 18 USC § 751 punishes escape with up to five years’ incarceration.^[48] That said, some have attempted to push a version of the Lovercamp rationale (namely, that US prisons are dangerous places) to excuse what is still criminal behaviour. One law review article, for example, argues that “rescuers”, a term used for non-incarcerated individuals, are morally obligated to help free all prisoners. The piece puts it this way: “[T]he state of the U.S. penal system places a moral responsibility on those unincarcerated to immediately begin rescue of all prisoners of the nation until all jails are emptied.” ^[49]

Considering that such extreme arguments found a respectable publisher and considered in the context of the current flurry of criminal justice reforms, it is foreseeable that the United States could see a movement favouring German-style decriminalization of walkaway offenses.

The problem for those advocating the human frailty argument is that it loses considerable steam when we recognize that legislatures and the courts designed our democratic, rule of law-based system of justice to protect the public from crime and ensure just sentencing and punishment following reliable determinations of guilt.^[50] It, moreover, was the fugitive’s own knowing and intentional criminal conduct that forced the government to place the convict behind bars (or, in the harbouring context, put the family members in a difficult divided-loyalties situation).

Notably missing from the justification in favour of legal escape is the appropriately meaningful recognition that escape, no matter how nonviolent, is freighted with serious inherent risks. If nothing else, particularly when confronted with an escapee incarcerated for violent conduct it forces the government to expend considerable law enforcement resources and exposes the public and those tasked with recapturing the escapee to material risk.

Firmly tied to the self-evident need to recapture those who have escaped is the need to protect society from the criminal and the systemic directive that those convicted of crimes serve out their lawfully imposed sentences. These public policy arguments carry even more weight when the escapee, like Cavalcante, is a convicted violent offender who presents a real and present danger to the community, as well as to those officers charged with returning the individual to prison.

Logic and experience teach that escapees, in addition to forcing a significant financial burden on the taxpayer who must pay for the fugitive hunt the escapee has triggered, present a heightened danger not only to the public in general but specifically to those charged with recapturing them. As the United States’ federal Tenth Circuit Court of Appeals persuasively explained in United States v. Moudy, 132 F.3d 618, 620 (1998):

[E]very escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so. A defendant who escapes from a jail is likely to possess a variety of supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, ordinary citizens, or even fellow escapees. Consequently, violence could erupt at any time. Indeed, even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.^[51]

In other words, even though initial circumstances of an escape may be nonviolent, “there is no way to predict what an escapee will do when encountered by authorities.”^[52] As another US federal appellate court put it, “[i]ndividuals who find custody intolerable to the point of escape are unlikely to calmly succumb to recapture efforts.”^[53]

The challenge with the approach Germany and the other countries that sanction walkaway escapes take is that they fail to make any effort to distinguish between, say, the one-time tax cheat who walks away from a low-security camp and the inmate who, like Cavalcante, has an established track record of violence and escaped from a high-security setting. Whereas in the United States, where all escapes are unlawful and subject to their own circumstance-dependent punishment, in Germany, all walkaway escapes are punishment-free.

Rather than these all-or-none approach to punishing walkaway escapes, it is sensible to consider an approach premised on the recognition that different escapees deserve different, more nuanced treatment. Factors weighing for or against punishment could include acts of violence and other criminality during and following the scape; the state’s need to quickly deploy resources to recapture the escapee; the risk they pose to the public and the officer’s pursuing the escapee; the damage the escapee has caused to the public’s perception of the security of the prison regime; and, relatedly, the impact the escapee had on the society’s sense of security.

In the final analysis, one cannot credibly take issue with the reality that vastly different law enforcement responses are required and appropriate when dealing with a dangerous murderer as opposed to a tax cheat. To treat all cases of escape the same by not punishing them (or, alternatively, by punishing them all with equal harshness), regardless of the escapee’s criminal background and the circumstances and impact of the escape if nothing else represents bad public policy.

The appeal to human nature also makes for a treacherously slippery slope. If one accepts the “natural instincts that made me do it” argument in escape and obstruction cases, why not also apply it when a parent harms the suspected abuser of his or her child, a mother steals to feed her starving baby, or a person assaults another who without provocation hurled hurtful insults? What of the excessively fearful person who mistakenly shoots a suspected robber? Are those individuals not also simply following their inherently subjective “natural instincts.” Can one plausibly argue that those instincts are not as deep-seated as the desire to escape from prison after being, say, convicted of a double homicide or sexual abuse of a child?

The short answer is that subjective desires rarely govern our justice systems. We regularly expect people to conform their conduct to the law’s requirements and to stifle their understandable, but socially undesirable, impulses and urges, “natural” or otherwise. Whether viewed from a public policy, penology, or moral theory perspective, it is challenging to justify why we would select convicted criminals as the subgroup within the overall population to protect in this manner.

Further, if the innate desire to be free is in fact the appropriate touchstone, why do these justice systems allow prosecutors to press charges against those escapees who during the escape damage, say, a prison door or saw through prison bars? Are those acts of minor property damage not similarly animated by the prisoner’s purportedly irrepressible desire to be free?

Finally, if escapes are in fact morally justified as some countries contend, it seems odd to tie the ability to file additional charges on the property damage caused during the scape. True, the escapee may have caused a few hundred dollars in damage by breaking down a door to secure his or her release. But why is the financial damage caused by the escapee artificially limited to the minutes during which the escapee physically moved away from the institution, rather than to the ensuring fugitive hunt the escapee predictably set off? The costs associated with such a search and recapture mission are significant, and one struggles to distinguish those expenses from the comparatively trivial expenses required to fix the property damage the prisoner caused on his or her way out of prison.

Parting Thoughts

There is nothing morally wrong with taking an empathetic approach to crime, questioning aspects of the United States’ sentencing approach and carceral system, and recognizing that human nature can sometimes cause even the best-intentioned among us to make bad, sometimes criminal, decisions. In fact, as those with experience in the criminal justice trenches know, these are weighty issues requiring thoughtful, good-faith debate informed by input from all stakeholders.

Further, it must be stipulated that neither crimes nor criminals are all the same. Even in the United States, those inmates incarcerated for non-violent crimes and housed in lower security settings who one day simply walk away from prison rarely suffer draconian sanction for their escapes; particularly harsh punishment for escape is generally reserved for violent criminals who have shown particularly flagrant disregard for the law. The United States justice system in that sense builds leniency, including through the exercise of prosecutorial discretion, into the structure.

That said, a well-run, democratic system of justice should not permit the subjective desire for freedom that motivated hardened lawbreakers like Cavalcante, Clausen, or Chouakri to escape their prisons (and, thus, lawfully imposed punishment) to trump the justice system’s need to ensure that convicts serve their sentences and society is protected.

Our system of justice operates on the reasonable expectation that we will conform our conduct to the law’s requirements even when doing so is anything but easy. 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. On this issue, I submit that those countries criminalizing all forms of escape and providing for appropriate nuance and discretion when meeting out punishment to the escapees once recaptured, have the better of the arguments.

Whether viewed from a public policy, penology, or moral theory perspective, one searches in vain for a sound reason justifying giving escaped prisoners like Cavalcante a pass while expecting restraint and self-control from the rest of us.

* Markus Funk, Ph.D. (Oxford), served as a federal prosecutor in Chicago and as a US State Department Section Chief in Kosovo. He also taught criminal and comparative criminal law at institutions including the University of Chicago, Northwestern University, the University of Colorado, and Oxford University. Now in private practice with the international law firm of Perkins Coie LLP, you can reach Markus at mfunk@perkinscoie.com and follow him @TMarkusFunk1.↑

1. Max Matza, ‘Danelo Cavalcante: Surveillance footage shows killer ‘crab walk’ out of US prison’ (BBC News, 7 September 2023) <https://www.bbc.com/news/world-us-canada-66736451> accessed 17 October 2023. ↑
2. Alessandra Freitas, ‘Slain woman’s sister says Pennsylvania fugitive transformed from a kind neighbor into a jealous and threatening boyfriend’ (CNN, 12 September 2023) <https://www.cnn.com/2023/09/07/us/deborah-brandao-danelo-cavalcante-girlfriend/index.html> accessed 12 November 2023. ↑
3. Staff, ‘Video shows convict Danelo Cavalcante escaping from US jail by crab-walking’ (Aljazeera, 7 September 2023) <https://www.aljazeera.com/news/2023/9/7/video-shows-convict-escaping-from-us-jail-by-crab-walking> accessed 17 October 2023; Richard Luscombe, ‘Escaped convict Danelo Cavalcante caught after intense manhunt’ (The Guardian, 13 September 2023) <https://www.theguardian.com/us-news/2023/sep/13/danelo-cavalcante-captured-latest-news-pennsylvania-jail-escape> accessed 17 October 2023. ↑
4. See generally Jorge Alvarez, ‘The controversial right of the prisoner to escape, which is not a crime in countries such as Germany or Belgium’ (LBV, 5 February 2019) <https://www.labrujulaverde.com/en/2019/02/the-controversial-right-of-the-prisoner-to-escape-which-is-not-a-crime-in-countries-such-as-germany-or-belgium/> accessed 12 November 2023. ↑
5. Richard F. Culp, ‘Frequency and Characteristics of Prison Escapes in the United States: An Analysis of National Data’ (2005) 85/3 The Prison Journal [first page of the article]. ↑
6. Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2023 (Prison Policy Initiative, 14 March 2023) <https://www.prisonpolicy.org/blog/2023/03/14/whole_pie_2023/> accessed 17 October 2023. ↑
7. Staff, ‘Prison escape in Laundry Truck Means Life Behind Bars for Nebraska Inmate’ (KETV, 27 November 2018) <https://www.ketv.com/article/prison-escape-in-laundry-truck-means-life-behind-bars-for-nebraska-inmate/25323486> accessed 13 November 2023; Staff, ‘Escapee Found in Omaha After 5-Day Search in 2016 Will Spend Rest of His Life in Prison’ (Omaha World-Herald, 11 December 2020). <https://omaha.com/news/crime/escapee-found-in-omaha-after-5-day-search-in-2016-will-spend-rest-of-his/article_90108df7-7a79-500a-a6c7-824ca592d3d3.html> accessed 12 November 2023. ↑
8. Criminal Code in the version published on November 13, 1998 (BGBl. I p. 3322), last amended by Article 2 of the law of November 22, 2021 (BGBl. I p. 4906) <https://www.gesetze-im-internet.de/englisch_stgb/> accessed 17 October 2023. ↑
9. Scientific Services of the German Bundestag, ‘Zur Strafbarkeit der Gefangenenselbstbefreiung’ (Wissenschaftliche Dienste – Deutscher Bundestag, 2019), 6-10 <https://www.bundestag.de/resource/blob/645640/f537c6845e0ce4e36ac40574e4cb0a5f/WD-7-053-19-pdf-data.pdf> accessed 12 November 2023. ↑
10. Id. See also Michael Juhas, Die Privilegierung der Selbstbegünstigung im deutschen und spanischen Strafrecht (Springer 2019) 138-44; Hartmut Schneider, Grund und Grenzen des strafrechtlichen Selbstbegünstigungsprinzips auf der Basis eines generalpräventiv-funktionalen Schuldmodells (Duncker & Humblot 2021) pages 188-90. ↑
11. Scientific Services of the German Bundestag (n 9) 6-7. ↑
12. Manuel Brunner, ‘Das Grundrecht auf Freiheit der Person (Art.2 II 2, 104 GG)’ (2020) 42(12) Juristische Ausbildung 1 <https://www.degruyter.com/document/doi/10.1515/jura-2020-2600/html> accessed 18 October 2023; ‘Grundgesetz für die Bundesrepublik DeutschlandArt 2’ (Bundesministerium Der Justiz) <https://www.gesetze-im-internet.de/gg/art_2.html> accessed 18 October 2023. ↑
13. See generally Juhas (n. 10); Schneider (n. 10); Anke Donner, ‘Das Recht auf Freiheit: Darum ist die Flucht aus dem Gefängnis nicht strafbar’ (Regionalheute.de, 16 February 2023) <https://regionalheute.de/das-recht-auf-freiheit-darum-ist-die-flucht-aus-dem-gefaengnis-nicht-strafbar-braunschweig-gifhorn-goslar-harz-helmstedt-peine-salzgitter-wolfenbuettel-wolfsburg-1676542851/> accessed 18 October 2023. ↑
14. Svenja Moller, ‘Offenbar geplante Flucht aus Gericht: Gab es Helfer?’ (Augsburger Allgemeine, 19 January 2023) <https://www.augsburger-allgemeine.de/bayern/regensburg-moerder-nach-flucht-festgenommen-polizei-nennt-details-id65082291.html> accessed 18 October 2023; Göran Schattauer, ‘Geflohener Mörder Rachid Chouakri in Frankreich festgenommen’ (FOCUS online,10 January 2023) <https://www.focus.de/panorama/focus-online-exklusiv-irre-flucht-des-killers-aus-gericht-sein-anwalt-sah-noch-die-schuhsohlen_id_182552545.html> accessed 18 October 2023. ↑
15. Meike Föckersperger and Veronika Meier, ‘Mörder auf der Flucht: 150 Hinweise, bislang keine heiße Spur’ (BR24, 9 January 2023) <https://www.br.de/nachrichten/bayern/regensburg-verurteilter-moerder-weiter-auf-der-flucht,TS4sMlZ> accessed 18 October 2023. ↑
16. T. Markus Funk, ‘What U.S. Law Reformers Can Learn from Germany’s Value-Explicit Approach to Self-Defense’ (2021) 73 South Carolina Law Review 220 <https://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=4403&context=sclr> accessed 18 October 2023. ↑
17. Ibid at 223-24. ↑
18. Mary Jordan and Kevin Sullivan, ‘Mexican Jailbirds Get to Fly for Free’ (The Washington Post, 15 November 2002) <https://www.washingtonpost.com/archive/politics/2002/11/15/mexican-jailbirds-get-to-fly-for-free/c06edac3-fa9c-4c7f-a955-290656451b06/> accessed 18 October 2023. ↑
19. Ibid. ↑
20. Código Penal Federal (Federal Criminal Code) (Mexico, 13 August 1931 (as of 2013)) <https://ihl-databases.icrc.org/en/national-practice/federal-penal-code-1931-2013> accessed 18 October 2023. ↑
21. Julia Riegler and Herbert Zwickl, ‘Moment der Unachtsamkeit’ (Öffentliche Sicherheit, 2 January 2020) <https://www.bmi.gv.at/magazinfiles/2020/01_02/strafvollzug_bf_20200114.pdf> accessed 12 November 2023. ↑
22. Alan Hope, ‘Brussels defence lawyer goes for trial in prison break case’ (The Brussels Times, 7 August 2021) <https://www.brusselstimes.com/180476/brussels-defence-lawyer-goes-for-trial-in-prison-break-case> accessed 19 October 2023; Code Pénal/Strafwetboek (Belgium, 15 January 2014) <https://issuu.com/ethics360/docs/penal_code__belgium_> accessed 19 October 2023; Jorge Álvarez. ‘The controversial right of the prisoner to escape, which is not a crime in countries such as Germany or Belgium’ (LBV, 5 February 2019) <https://www.labrujulaverde.com/en/2019/02/the-controversial-right-of-the-prisoner-to-escape-which-is-not-a-crime-in-countries-such-as-germany-or-belgium/> accessed 14 November 2023. ↑
23. Staff, ‘Why is prison escape not a crime in the Netherlands?’ (Tours In Amsterdam, 1 February 2022) <https://www.toursinamsterdam.com/prison-escape-netherlands-no-crime/> accessed 19 October 2023. ↑
24. Ibid. ↑
25. Stephan Rahgeb, ‘Switzerland is Europe Leader in Prison Escapes’ (Swissinfo, 3 April 2019) <https://www.swissinfo.ch/eng/society/soft-detention_switzerland-is-europe-leader-in-prison-escapees/44873488> accessed 14 November 2023. ↑
26. Bundesgericht [BGer] [Federal Supreme Court] 124 IV 127 <https://www.bger.ch/ext/eurospider/live/de/php/clir/http/index.php?highlight_docid=atf%3A%2F%2F124-IV-127%3Ade&lang=de&zoom=&type=show_document> accessed 19 October 2023; ‘Strafvereitelung’ in Juraforum Lexikon (18 October 2023) <https://www.juraforum.de/lexikon/strafvereitelung#:~:text=Der%20%C2%A7%20258%20V%20StGB,dieser%20ihn%20sonst%20anzeigen%20will.> accessed 19 October 2023. ↑
27. Reimann Luke, ‘Make prison escape a criminal offense’ (Swiss Parliament, 19 June 2015) <https://www.parlament.ch/de/ratsbetrieb/suche-curia-vista/geschaeft?AffairId=20153753> accessed 19 October 2023. ↑
28. Russell Patterson, ‘Punishing Violent Crime’ (2020) 85 New York University Law Review 1521 <https://www.nyulawreview.org/wp-content/uploads/2020/11/NYULawReview-Volume-95-Issue-5-Patterson.pdf> accessed 19 October 2023. ↑
29. See Council on Criminal Justice, Task Force on Long Sentences Final Report (Report, March 2023), <https://counciloncj.foleon.com/tfls/long-sentences-final-report/> accessed 12 November 2023. ↑
30. WiseVoter, Murder Rate by Country (Report, undated) <https://wisevoter.com/country-rankings/murder-rate-by-country/> accessed 19 October 2023. ↑
31. World Population Review, Incarceration Rates by Country 2023 (Report, 2023) <https://worldpopulationreview.com/country-rankings/incarceration-rates-by-country> accessed 19 October 2023; David J. Harding, ‘Do Prisons Make Us Safer?’ (Scientific American, 21 June 2019) <https://www.scientificamerican.com/article/do-prisons-make-us-safer> accessed 19 October 2023. ↑
32. Patterson (n 28); Jessica M. Eaglin, ‘The Perils of “Old” and “New” in Sentencing Reform’ (2021) 76 New York University Annual Survey of American Law <https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=4032&context=facpub> accessed 19 October 2023; Staff, ‘Five Things About Deterrence’ (National Institute of Justice, 5 June 2016) <https://nij.ojp.gov/topics/articles/five-things-about-deterrence> accessed 19 October 2023; Jacob Schuman, ‘Revocation and Retribution’ (2019) 96 Washington University Law Review <https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=5181&context=wlr> accessed 19 October 2023; Rebecca Wasif, ‘Reforming Expansive Crime Control & Sentencing Legislation in an Era of Mass Incarceration: a National and Cross-national Study’ (2019) 27 Miami International & Comparative Law Review, Volume 27 <https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1338&context=umiclr> accessed 19 October 2023; Paul Larkin and Evan Bernick, ‘Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms’ (The Heritage Foundation, 10 February 2014) <https://www.heritage.org/crime-and-justice/report/reconsidering-mandatory-minimum-sentences-the-arguments-and-against> accessed 19 October 2023. ↑
33. See generally Adriano Martufi, ‘The Paths of Offender Rehabilitation and the European Dimension of Punishment: New Challenges for an Old Ideal?’ (2023) 25 Maastricht Journal of European and Comparative Law <https://journals.sagepub.com/doi/pdf/10.1177/1023263X18820678> accessed 12 November 2023; Sonja Meijer, ‘Rehabilitation as a Positive Obligation’ (2017) 25 European Journal of Crime, Criminal Law and Criminal Justice <https://brill.com/view/journals/eccl/25/2/article-p145_4.xml > accessed 14 November 2023; Ram Subramanian, ‘How Some European Prisons Are Based on Dignity Instead of Dehumanization’ (Brennan Center for Justice, 29 November 2021),<https://www.brennancenter.org/our-work/analysis-opinion/how-some-european-prisons-are-based-dignity-instead-dehumanization> accessed 11 November 2023. ↑
34. Kent Greenawalt, ‘Punishment’ (1983) 74 Journal of Criminal Law and Criminology <https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6366&context=jclc> accessed 14 November 2023; Joshua Kleinfeld, ‘Two Cultures of Punishment’ (2016) 68 Stanford Law Review <https://www.stanfordlawreview.org/wp-content/uploads/sites/3/2016/06/68_Kleinfeld_-_Stan._L._Rev._933.pdf> accessed 12 November 2023; Jordan M. Hyat, et al., ‘”We Can Actually Do This”: Adapting Scandinavian Correctional Culture in Pennsylvania’ (2021) 58 American Criminal Law Review <https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2021/07/58-4_Hyatt-et-al-We-Can-Actually-Do-This.pdf> accessed 12 November 2023. ↑
35. Kleinfeld (n 34). ↑
36. Collateral Consequences Resource Center, Restoration of Rights Project (Report, undated) <https://ccresourcecenter.org/restoration-2/> accessed 23 October 2023; U.S. Department of Justice, Guide to State Voting Rules That Apply After a Criminal Conviction (Guide, June 2022) <https://www.justice.gov/voting/file/1507306/download> accessed 23 October 2023. ↑
37. Bryan Lee Miller and Joseph F. Spillane, ‘Civil Death: An Examination of Ex-Felon Disenfranchisement and Reintegration’ (2012) 14(4) Punishment & Society <https://www.ojp.gov/ncjrs/virtual-library/abstracts/civil-death-examination-ex-felon-disenfranchisement-and> accessed 23 October 2023. ↑
38. Erika Váradi Csemáné, ‘Harmful Effects of Imprisonment, Overcrowding in Prisons – Facts, Reasons, and the Way Forward’ (2020) 1 Central European Journal of Comparative Law <https://ojs3-mtak-hu.translate.goog/index.php/cejcl/article/view/4462/3588?_x_tr_sl=auto&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=wapp> accessed 23 October 2023. ↑
39. Eurostat, Crime statistics (Statistics, April 2023) <https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Crime_statistics> accessed 23 October 2023. ↑
40. Magdalena Pistorius, ‘Violence and harassment in Europe “far more frequent than official data indicate” (EURACTIV, 25 February 2021) <https://www.euractiv.com/section/non-discrimination/news/violence-and-harassment-in-europe-far-more-frequent-than-official-data-indicate/> accessed 23 October 2023. ↑
41. [1974] 43 Cal.App.3d 823 <https://law.justia.com/cases/california/court-of-appeal/3d/43/823.html> accessed 23 October 2023. ↑
42. [1978] 190 U.S. App. D.C. 142 <https://case-law.vlex.com/vid/u-s-v-bailey-895559675> accessed 23 October 2023. ↑
43. [1980] 444 U.S. 394 <https://supreme.justia.com/cases/federal/us/444/394/> accessed 23 October 2023. ↑
44. Judith Zubrin Gold, ‘Prison Escape and Defenses Based on Conditions: A Theory of Social Preference’ (California Law Review, Volume 67, 1979) <https://lawcat.berkeley.edu/record/1111322?ln=en> accessed 23 October 2023. ↑
45. 720 Ill. Comp. Stat. 5/31‑1 (2005) <https://law.justia.com/codes/illinois/2005/chapter53/60778.html> accessed 12 November 2023; Iowa Code § 703.3 (2023) <https://www.legis.iowa.gov/docs/code/703.3.pdf> accessed 12 November 2023; N.C. Gen. Stat. § 14-259 (2023) <https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_14/GS_14-259.pdf> accessed 12 November 2023; KY Rev. Statu. Ann. § 520.110 (2023) < https://www.lawserver.com/law/state/kentucky/ky-statutes/kentucky_statutes_520-110> accessed 12 November 2023; Jennifer Collins, et al., ‘When the Fugitive Is a Family Member: A Guest Post’ (Freakonomics, 13 July 2009) <https://freakonomics.com/2009/07/when-the-fugitive-is-a-family-member-a-guest-post/> accessed 23 October 2023. ↑
46. Va. Code Ann. § 18.2-19 (2023) <https://law.lis.virginia.gov/vacodefull/title18.2/chapter2/#:~:text=%C2%A7%2018.2%2D19.,case%20of%20any%20other%20felony.> accessed 23 October 2023. ↑
47. State v. CH, 421 So. 2d 62 (Fla. Dist. Ct. App. 1982) <https://www.courtlistener.com/opinion/1799171/state-v-ch/?q=cites%3A(1774879)> accessed 23 October 2023. ↑
48. 18 U.S. Code § 751 (2023) <https://www.law.cornell.edu/uscode/text/18/751> accessed 12 November 2023; Criminal Resource Manual 1801-1899, ‘1801 Introduction – Escape from Custody Resulting from Conviction (18 U.S.C. § 751 and 752)’ (17 January 2020) <https://www.justice.gov/archives/jm/criminal-resource-manual-1801-introduction-escape-custody-resulting-conviction-18-usc-751-and> accessed 23 October 2023. ↑
49. David W Frank, ‘Abetting Mass Prison Escape: A Defense’ (2016) 6 University of Miami Race & Social Justice Law Review <https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1073&context=umrsjlr /> accessed 23 October 2023. ↑
50. See generally Lord Bingham, ‘The Rule of Law‘ (2007) Cambridge Law Journal 67-85 < https://www.jstor.org/stable/4500873> accessed 14 November 2023; William M Cohen, ‘Principles for Establishment of a Rule of Law Criminal Justice System’ (1993) 23 Georgia Journal of International and Comparative Law 269-88. <https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1557&context=gjicl> accessed 14 November 2023; Paul Gowder, ‘Democracy, Solidarity, and the Rule of Law: Lessons from Athens’ (2014) 62 Buffalo Law Review1-68 <https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=4445&context=buffalolawreview> accessed 14 November 2023. ↑
51. 132 F.3d 618 (10^th Cir. 1998),< https://casetext.com/case/united-states-v-moudy-2> accessed 14 November 2023. ↑
52. United States v. Turner, 285 F.3d 909, 916 (10th Cir. 2002) <https://www.courtlistener.com/opinion/162165/united-states-v-turner/summaries/?q=&court_nj=on&order_by=dateFiled+desc> accessed 12 November 2023. ↑
53. 482 F.3d 743, 748 (4th Cir. 2007) <https://law.resource.org/pub/us/case/reporter/F3/482/482.F3d.743.06-4109.html> accessed 12 November 2023; see also United States v. Mathias, (4th Cir. 2007) (holding that “escape is a volatile enterprise. At the outset, there is always a chance that an escape attempt will be interrupted—by a prison guard, work supervisor, or citizen bystander. Such an encounter leads to an immediate and substantial risk that the situation will escalate to one involving physical force.”) <https://caselaw.findlaw.com/court/us-4th-circuit/1044609.html> accessed 12 November 2023. ↑