Analysis of “Powder Keg Theory” in State Escape Statutes

• Author: Mijin Kim,Jeff Mellow
• Date: 01 February 2018
• DOI: 10.1177/0887403415619006
• Published date: 01 February 2018
• Subject Matter: Articles

Criminal Justice Policy Review

2018, Vol. 29(1) 3 –23

© The Author(s) 2015

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DOI: 10.1177/0887403415619006

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Article

Analysis of “Powder Keg

Theory” in State Escape

Statutes

Mijin Kim1 and Jeff Mellow1

Abstract

Escape research has debunked the powder keg theory that all escapes are inherently

violent and may explode into violence at any given time. The vast majority of escapes

takes place from minimum secure facilities and do not involve force at time of escape

or recapture. Nevertheless, federal defendants often receive unduly harsh sentences

based on prior escape convictions because courts assume that the majority of

escapes are violent for purposes of sentencing enhancement. This study analyzed all

50 U.S. state escape statutes to determine which states classify escapes in a manner

consistent with the powder keg theory. Results indicated that the majority of state

statutes neither concurred with the powder keg theory nor favored a more nuanced

understanding of the relationship between escapes and potential violence. Policy

implications of these findings and potential pathways for future escape research are

discussed. This article concludes that criminal acts of escape must be reconsidered

for sentencing purposes in relation to their potential violence, risks, and intentions.

Keywords

escapes, powder keg theory, ACCA, state escape statutes

In 1984, Congress enacted the Armed Career Criminal Act (ACCA), which requires a

minimum 15-year sentence for individuals with three prior violent felony convictions

who are subsequently convicted of unlawful possession of a firearm. Federal courts

often judge custodial escapes as categorically violent under the ACCA despite the lack

of reliable evidence to substantiate this judgment. Misconceptions about the degree of

violence in custodial escapes are largely due to popular culture and fear-based news

1John Jay College of Criminal Justice, City University of New York, New York City, NY, USA

Corresponding Author:

Mijin Kim, John Jay College of Criminal Justice, City University of New York, 524 West 59th Street, New

York, NY 10019, USA.

Email: mjkim310@gmail.com

619006CJPXXX10.1177/0887403415619006Criminal Justice Policy ReviewKim and Mellow

research-article2015

4 Criminal Justice Policy Review 29(1)

stories that disproportionately report on violent crimes (Beckett, 1997; Cavender &

Fishman, 1998; Pollak & Kubrin, 2007). Peterson (2014) found that sensational prison

escapes involving elaborate escape plans or violence were over-reported in a national

newspaper’s crime stories between 2006 and 2010. Prison administrators are sensitive

to public safety risks and political ramifications of escapes, explaining why escape rate

is one of two correctional public safety national performance indicators (Wright, 1991).

In this atmosphere, numerous court rulings have held that escape convictions are cate-

gorically crimes of violence, and state and federal legislators continue to impose harsh

penalties for criminals who escape. Alabama, Arkansas, and Texas, for example, impose

sentences up to 10 years for non-violent third-degree escapes (Ala. Code §3A-10-33,

2013; Ark. Code Ann. §5-54-112, 2012; Tex. Bus. & Com. Code § 38.06, 2012).

The powder keg theory ties these different institutional views together, assuming

escapees may explode into violence during escape and their efforts to avoid recapture

(United States v. Gosling, 1994). Research, however, challenges the powder keg theory

that escapes are categorically violent. In recent years, a more nuanced portrait of escapes

has evolved. Courts have recognized that modes of escape from custody such as failure

to return and walkaways are less serious and that no sentencing enhancement should be

triggered (United States v. Chambers, 2007; United States v. Stout, 2013). Even prison

and jail breaks, often referred to as “forced” escapes because they entail overcoming

physical barriers, are rarely violent from the time of the escape through recapture (Culp,

2005; Peterson, Fera, & Mellow, 2016; U.S. Sentencing Commission [USSC], 2008).

This research underscores the need to understand how each state punishes escapees

in accordance with their statutes or penal codes. The objective of this study is to deter-

mine whether state escape statutes reflect the misperception that escapes are categori-

cally violent or whether the laws have evolved to reflect empirical research and recent

court decisions on escapes.

Defining Escapes

Although escape definitions vary by state, they usually refer to an unauthorized depar-

ture from custody or correctional facilities. Escapes can be divided into several catego-

ries from more serious to less (USSC, 2008) as follows:

i. Leaving Secure Custody: the escapee left or attempted to leave the custody of a

location with a secure perimeter, such as a prison or jail.

ii. Leaving Law Enforcement Custody: the escapee left or attempted to leave the

custody of a law enforcement officer, such as during transport between institutions.

iii. Leaving Non-secure Custody (“Walkaway”): the escapee left or attempted to leave

custody with no significant physical restraint, such as a halfway house, a prison

camp, home detention, or a supervised work detail.

iv. Failure to Return: the escapee failed to return to custody after being released

temporarily, such as for unsupervised work release.