Can you escape from electronic home detention? YES says the Court of Appeals of Virginia

Circumstances at the Virginia Appellate Lawyer Social Media Bunker permit to address the single published opinion of the Court of Appeals of Virginia in a more timely fashion than last week or week before.

Jai A. King v. Commonwealth of Virginia poses the interesting question, “Can one “escape” from a detention that takes place in one’s own home while being electronically monitored by big brother the local constabulary.  As the headline has already give away the answer, I shall not keep you in suspense — yes, yes one can.  Here are the details: Mr. KIng was at some point in the past convicted of a felony.  Later, he was found in possession of some ammunition.  It may come as a surprise to those not familiar with the “felon in possession” law that having ammunition alone, with no gun to put it in and fire it, is still frowned upon in Virginia.  So much so that Mr. King faced five years in prison. The court suspended three and remanded king to the custody of the local sheriff.

Now here is something that may likewise come a surprise to some — although felons are supposed to be packed off to a state penitentiary after conviction and sentencing, quite a few of them never make it out of the local hoosegow.  There are reasons for this, but suffice to say that so long as they remain in the local jail (including a regional jail that to most looks and awful lot like a prison — perhaps I will get around to writing an essay explaining the intricacies of the different places we house of burgeoning population of inmates one of these days), the rules applies to their housing are the same as any other local inmate — and that means they can qualify for release to a residential situation subject to some form of monitoring — electronic ankle bracelets currently being all the rage.

This, Mr. King found himself after a time back in the bosom of his loving family (I am assuming here — perhaps he is a bachelor and lives alone) with the aforementioned fashion accessory strapped to his leg. He was allowed to remain at his home and travel to and from work.  Apparently, however, he was in desperate need of some commercial product and decided that a short trip to a local market would not be too much of a stretch on the limits of his tether.  Likely all would have been well, except that Mr. King drove to said store, was stopped by a local gendarme (we don’t know what for) who discovered that Mr. King was not presently authorized to drive and was duly issued a summons for said offense.

Apparently recognizing that this would potentially alert authorities to his having taking the unauthorized sojourn, King contacted the Sheriff’s Department and reported his transgression.  “No problem,” said the deputy who took the call, “just come in and let me make a copy of the summons for the file.”  Now at this point we need to speculate what went through Mr. King’s mind. It’s possible he heard General Akbar shouting “It’s a trap!” and reasoned that if he went to the Sheriff’s Department, he would be immediately arrested for breaking his house arrest; perhaps he thought that copying the summons was just a preliminary, and he would be arrested later; or, perhaps he just decided that he this was as good a time as any for a change of scenery.

Regardless of his through processes, what we know happened was that shortly after taking King’s call, the same deputy received an alert that King’s monitoring bracelet had been tampered with.  Unable to raise King on his cellphone, the deputy went to the last location of the monitor and found it there . . . just not King.  Elvis had left the building . . . or rather the off-ramp of the Interstate were the bracelet was found with its strap cut through (you’s think they would make those straps a little sturdier, wouldn’t you?).

Cutting to the chase (quite literally), a warrant was issued for King’s arrest on a charge of felony escape and he was subsequently arrested after about three weeks of freedom.  At trial, King argued that he couldn’t be guilty of escape, because he was not in a jail or prison or otherwise in the physical custody of the Commonwealth.  The trial court rejected King’s argument, convicted him, gave him five years with one to serve (and likely some comeback time from the felon in possession conviction) and presumably sent him back to the Sheriff where he likely applied for home release.

Today, the Court of Appeals affirms the conviction.  The Court notes that Code § 18.2-479(B) makes it a felony for “any person . . . in the custody of any court, officer of the court, or of any law-enforcement officer on a . . . conviction of a felony” to escape from that “custody.”  Now you probably noted that unlike some similar statues, there is no mention of being under “arrest” or in “jail” or being “imprisoned.”  The Court of Appeals recognizes that custody “requires more than purely constructive control over a person. Davis v. Commonwealth, 45 Va. App. 12, 14-15 (2005). However, it includes circumstances “involving less deprivation of liberty than absolute confinement.” White v. Commonwealth, 267 Va. 96, 104 (2004).”  Noting that the whether electronic home monitoring is a form of “custody” is an issue of first impression, the Court concludes that it fails squarely with in the White definition of a definition of a “depravation of liberty” that is less than absolute confinement, but still subject to control by the court and the police power of the state.  The Court reaches this conclusion even though there is a lesser punishment available for tampering with a monitoring device in the statutory scheme authorizing such programs.  Expect an appeal to be noted to the Supreme Court.