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June 13, 2007

Should failure to return to a halfway house qualify as a "violent felony"?

I have not discussed much lately the Kafkaesque reality that, as discussed before here and here, many seemingly non-violent state offenses can qualify as crimes of violence triggering severe federal sentence enhancements.  But the issue merits another spotlight today following a strong concurring opinion from Judge Hill of the Eleventh Circuit in US v. Taylor, No. 05-15088 (11th Cir. June 13, 2007) (available here).

In Taylor, the panel affirms an enhancement under the Armed Career Criminal Act (ACCA) based upon an escape conviction for "failure to return" to a halfway house counting as a "violent felony."  Judge Hill, feeling bound by circuit precedent, concurs separately (along with Judge Wilson) in order to "a tiny, but growing, choruses of doubt that a district court is permitted to enhance a sentence under the ACCA based in part upon a 'failure to return' prior escape conviction."  Anyone working on these intricate criminal history issues (or perhaps seeking a cert-worthy issue to pursue) ought to check out Taylor.

June 13, 2007 at 04:09 PM | Permalink


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The Ninth Circuit held similarly just recently.

Check out US v. Savage, No. 06-30451

Where the appropriate documents reveal that a defendant was previously convicted of escaping from a jail or prison, the previous conviction qualifies as a "crime of violence" under U.S.S.G. section 4B1.2(a).


• Howard O. Kieffer
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Posted by: Howard O. Kieffer | Jun 13, 2007 4:29:54 PM

In a sentencing hearing about three years ago, prior to Booker, we argued before a district court in the NDOH the absurdity of classifying a failure to return as a crime of violence. As part of our investigation, we interviewed one of the county probation supervisors, who acknowledged that charging such individuals with an "attempted escape" felony was the easiest way to have a warrant issued. The judge, without opinion unfortunately, departed on grounds not unlike the notion of a variance even though Booker had not yet been decided. If you're challenging the law, check to see if your probation officers have the same policy as those up here. That policy certainly weighs heavily against a classification as a crime of violence.

Posted by: Dennis Terez | Jun 13, 2007 5:42:35 PM

Is a halfway house a "jail or prison"?

Posted by: William Jockusch | Jun 13, 2007 6:19:03 PM

William, it's certainly not, and walking away from a home does not involve a use of force, nor does it create a substantial risk of injury -- in reality -- so it shouldn't be a crime of violence. But the courts take a "categorical" approach, and since most of the time "escape" involves a risk of injury, the defendant's conduct doesn't matter. All that matters is the state stature making the conduct a crime. Because states have "escape" statutes, not "escape from max security" and "escape from halfway home," under the ACCA they're both "escape" and both serve as predicates because "escape" involves a substantial risk of harm. Comity sucks, eh?

Reversing Taylor (US '90) would correct this problem. The categorical approach was reaffirmed in 2005 in Shepard.

Posted by: rothmatisseko | Jun 13, 2007 7:42:03 PM

The technical term for a halfway house is "residential work release center" (RWR) in our state they are operated by Community Based Correction (CBC) a division of the Department of Corrections and they can be used to house probationers or parolees who work at jobs (day or night shift) and then return to the RWR after work and on weekends. So they can be called a jail alternative or a prison alternative depending on the client.

In our state if they fail to return the charge could be "absent from custody" or "escape" it would also be a technical violation of probation/parole. An arrest warrant is issued and they usually are found (or they turn themselves in) and the are booked into jail. They may sit in jail for awhile until CBC and the judge decide if the probation/parole should be revoked or some other remedy is better choice.

Obviously CBC has to be very selective in what type of offender is placed in RWR. If someone on WR escapes and commits a heinous crime the resulting public outrage could result in the end of RWR.

Posted by: John Neff | Jun 13, 2007 8:21:20 PM

Thanks for that personal information.. howard.. i'll just add to my blog.

Posted by: Juno888 | Jun 19, 2007 2:40:14 AM

My son walked out of the halfway house that his parole took him to. He said that he just couldn't take it. The reason he was sent there was minor. He is not a violent criminal and was in prison for a DUI. Is he going to be charged with an escape felony or what. I really didn't think that he should have been sent there anyway. What will happen to him now.

Posted by: Sandra J McGuire | Sep 24, 2007 11:34:41 AM

if someone ecapes from a halfway house after serving time for a non-violent crime how much time will they face once caught ?

Posted by: l scherer | Feb 9, 2009 5:10:31 PM

How much time can one expect for the offense of "escape from a halfway house"
I would love to see the question answered above by "Sandra J McGuire" I find it curious that I can find nothing on the internet regarding sentencing tendencies. I am sure if you drudge through thousands of pages of cases maybe you can find something. I am particularly interested in Anchorage Alaska.

The problem is within a halfway house decisions regarding your return to prison are very erratic at best. Thanks, and what an excellent site.

Posted by: Stevenf | Aug 22, 2009 2:14:14 PM

Where's S.cotus when you need him (or her)? Does my proposal to seize members of the family's property "work corruption of Blood"

Posted by: nike air jordan spizike | Nov 29, 2010 3:43:31 AM

i was wondering why no one has answered about the sentencing tendencies of the walk away from halfway houses. I ask because now i am in this situation. my son recently signed out of the halfway house did not return in time and then called and was told a warrent for unlawfull evasion / failure to return was issued. he only had a remaining 37 days left of sentence and by no means was planning anything like this. just got spooked. he is currently looking for counsel at this time before I turn himself in . So if someone could please post and answer if possible it would be highly appreciated. Thanks

Posted by: R.Soderberg | May 5, 2012 12:36:21 AM

Hello. I reside at the halfway house and its more strict than BOP. I would like to run away but how much time will I get if my previous charge was a violent crime?

Posted by: Francis | Jul 23, 2014 3:24:54 PM

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