Prison reform must not include decriminalizing nonviolent prison escapes

On the last day of August, surveillance cameras 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. Cavalcante was serving a life sentence for viciously stabbing ex-girlfriend Deborah Brandão to death while her two small children watched. He is also wanted in his native Brazil for felling a friend in a hail of bullets.

Cavalcante was and is a dangerous, ruthless, 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.”

The United States is a country grappling with broad criminal justice reform efforts, some 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 nonviolent prisoner escapes such as Cavalcante’s.

In America, as well as around the world, prison escapes occur with surprising regularity. With a prison population approaching 2 million (the U.S. leads the world in terms of its incarceration rates), the United States has about 2,000 escapes a year.

Hollywood has its own genre of movies based on such prison breakouts, such as “The Fugitive” and “The Shawshank Redemption,” usually featuring wrongly convicted escapee-protagonists. In the movies, as in the United States and most countries around the world, the price for getting caught is high. Recaptured escapees face years of additional jail time, as well as harsher conditions of confinement.

But some countries, including ones with advanced 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, escapees like Cavalcante who make a nonviolent break for it will never face an additional day in prison (though prosecutors, of course, can still charge crimes committed during and following the escape).

German law exemplifies the logic used to justify this lenient approach. The “urge to be free” is said to be deeply ingrained in human nature, rendering the prisoner acting on the “instinct to escape” insufficiently morally blameworthy to justify additional charges. The number of prior escape attempts, like the inmate’s criminal history, do not factor in.

Mexico take a similar approach. As the late Supreme Court Justice Juventino Victor Castro y Castro put it, “the basic desire for freedom is implicit inside every man, so trying to escape cannot be considered a crime.”

The moral underpinnings of the U.S. approach to criminal justice find their origins in the perception of felons as morally damaged individuals who, through their illegal conduct, have placed themselves outside of ordered society. Convicts can therefore lose important civil rights, including the right to vote, run for state office, sit on a jury and possess a firearm.

In stark contrast, Western European and Scandinavian criminal justice systems focus more on the act and less on the actor. They are less willing to cleave convicted criminals from the very society that the lawmakers consider at least partially to blame for the offenders’ unlawful conduct. The focus, then, is on rehabilitation and reintegration into mainstream life, which explains why prisoners wear their own clothes rather than orange jumpsuits, cook their own meals and are entitled to “intimate” (conjugal) visits.

Effective rehabilitation and mainstreaming in a calm, nonviolent and generally more easygoing prison setting of course sounds wonderful. Problems arise, however, when reality crashes into such quixotic idealism.

Criminality, including violent and organized crime, is rising throughout Europe. These accelerating crime and recidivism rates, in turn, stoke the population’s growing fear of victimization, and reluctance to consider convicted criminals as mere victims of society who simply need a therapy-driven prison setting to be “cured” of their antisocial impulses.

The human frailty argument advanced by those who believe that it is only human to engage in such nonviolent escapes also fails for several additional reasons. For one, democratic, rule-of-law-based justice systems, like the prisons that house those unwilling to comply with society’s most basic rules, are purpose-built to protect the public from convicted criminals like Cavalcante. They use punishment to deter undesirable conduct.

Advocates like the Urban Institute may contend that the public need not “be worried about prison escapes.” Courts throughout the U.S., however, have appropriately noted that escapees, by their very nature, operate under “supercharged emotions.” They pose a significant threat to those assigned to recapture them, as well as to the public more generally. Further, recapturing an escapee — particularly one who has crossed state lines or the U.S. border — also predictably places a significant financial burden on the taxpayer.

Finally, the reformers’ appeal to human nature makes for a particularly treacherous slippery slope. If we permit a “natural impulses” argument for prison escapees, then why not for those who assault child abusers, steal to feed their families, are overcome with road rage, etc.?

There is nothing wrong with taking a more empathetic approach to crime, questioning aspects of our sentencing policy and prison system, and recognizing that human nature can sometimes cause even the best intentioned among us to make bad, sometimes criminal, decisions.

But our system of justice is premised on the expectation that we will conform our conduct to the law’s requirements, even when doing so is anything but easy. Whether viewed from the perspective of public policy, penology or moral theory, one searches in vain for a sound justification to give escaped prisoners like Cavalcante an automatic pass, while expecting restraint and self-control from the rest of us.

T. Markus Funk, now in private practice, served as a federal prosecutor in Chicago and United States Department of State Section Chief in Kosovo. The author of a dozen books on criminal law, he teaches criminal law at the University of Colorado.