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10th Circuit Reverses Dismissal of Halfway House Escape Charge

10th Circuit Reverses Dismissal of Halfway House Escape Charge

by Derek Gilna

A federal prisoner without any detainers (“holds” placed by other law enforcement agencies) can generally count on a period of community confinement at the end of his sentence, during which he reports to a halfway house under the direct supervision of the Bureau of Prisons (BOP). Most federal circuit courts agree that the halfway house time, even if served on home confinement, counts against the prisoner’s sentence, and it stands to reason that an unauthorized absence from a halfway house or home confinement would thus be considered “escape.”

A district court judge in Kansas disagreed, finding that when Michael Ko failed to return to his residence while on home confinement, based on an alert from his GPS monitoring device, that failure did not constitute an escape.

The court dismissed the indictment filed against Ko for escape from custody, reasoning “the absence of Supreme Court or Tenth Circuit precedent addressing the facts in this case” required dismissal.

In reversing the district court’s judgment, the Tenth Circuit noted the terms of Ko’s confinement included constant monitoring, the wearing of an electronic monitoring device and limitations as to travel and reporting. In “that way, the restrictions on his life in home confinement were sufficiently limiting so as to constitute custody under [the statute]. So long as a prisoner is confined to serve a term of imprisonment at a place designated by the BOP, he is in ‘custody’ and liable for escape.” See: United States v. Ko, 739 F.3d 558 (10th Cir. 2014).

Following remand, Ko entered a guilty plea to the escape from custody charge; he was sentenced in August 2014 to 12 months and one day in federal prison, plus an additional two-year term of supervised release.

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Related legal case

United States v. Ko