Clarifying the Authority to Apprehend Escapees

In those few cases in which appropriate security measures and

enhanced treatment opportunities do not prevent the escape of a special

civilly committed patient, authority to apprehend the escapee and to

return him to the mental treatment facility should be clearly articulated.

For example, a New York statute provides that if an insanity acquittee

escapes, the facility staff shall immediately notify the state police, the

sheriff of the county where the escape occurred, and any person the

facility believes to be in danger. Any peace officer is empowered to

apprehend, restrain, transport to, and return the escapee to the facility

from which the escape occurred.

398

_{In the District of Columbia, a statute}

requires the court that ordered the insanity acquittee’s confinement, upon

the government’s request, to order the acquittee’s return to the hospital

from which the escape occurred. That return order is effective

throughout the United States. Any judicial officer within whose

jurisdiction the escaped person is found is required to apprehend the

escapee and deliver him for return to the hospital.

399

_{Similarly, other}

statutes establish peace officer authority to return regular civilly

committed mental patient escapees.

400

Peace officers attempting to apprehend escapees need the assistance of

their co-professionals in other law enforcement organizations, and the

authority to provide that assistance should be specified. For example,

when Ronald Rogers escaped from Atascadero and fled north toward

Oregon, California peace officers desired to use the computerized index

of identification, criminal identification, crime, and other records in the

National Crime Information Center (NCIC), established and maintained

abnormal and unable to control his dangerousness. See Stephen J. Morse, Fear of Danger, Flight from Culpability, 4 PSYCHOL.PUB.POL’Y &L. 250 (1998).

It is utterly paradoxical to claim that a sexually violent predator is sufficiently responsible to deserve the stigma and punishment of criminal incarceration, but that the predator is not sufficiently responsible to be permitted the usual freedom from involuntary civil commitment that even very predictably dangerous but responsible agents retain . . . .

Id. at 258.

398. N.Y.CRIM.PROC.LAW § 330.20(19) (McKinney 1994). 399. D.C.CODE ANN. § 24-501(i) (2001).

400. See, e.g., CAL.WELF.&INST.CODE § 5358.5 (West 1998) (providing that a mental health conservator may request a peace officer to detain and return his conservatee to the mental health facility from which the escape occurred); N.Y.MENTAL HYG.L. § 29.19 (McKinney 2002) (providing that at the request of a representative of a facility from which a civilly committed patient escaped, “any peace officer, acting pursuant to his special duties, or any police officer who is a member of an authorized police department or force or of a sheriff’s department” may apprehend, transport, and return the escapee to the facility from which the escape occurred).

by the Federal Bureau of Investigation.

401

_{They believed, however, that}

such information was only available to them if they were seeking to

arrest an individual who committed either a state or federal crime.

402

_For

this reason, they sought and obtained warrants for Rogers’s arrest,

charging him with the nonexistent crime of escape and of unlawful flight

to avoid prosecution.

403

_{Nevertheless, even under current law, access to}

NCIC information is also available for persons who are missing and who

are under a proven mental disability.

404

_{Conceivably, Rogers could have}

been considered a missing person for the purpose of accessing the NCIC

database. If this interpretation is incorrect, the law should be amended

to assure access to that database by peace officers seeking to apprehend

mental patient escapees. Similarly, federal extradition laws should be

amended to allow the return of an apprehended mental patient escapee to

the state from which the escapee departed.

405

Assuring needed assistance in the apprehension of mental patient

escapees seems preferable to criminalizing patient escapees simply

because such assistance is not assured. Criminalizing a patient’s escape

can have devastating results for the patient. In California, for example,

the definition of SVP requires that the person be “convicted of a sexually

violent offense against two or more victims.”

406

_{If SVP escape is}

criminalized, then an SVP’s escape may well constitute a third strike

against him, resulting in a twenty-five year to life penal sentence.

407

Although he completed his sentence for the sex crimes he committed

and cannot be further punished for those acts, we were able to civilly

commit him to incapacitate him from committing future sex crimes. But

if the SVP’s escape is criminalized, we will be able to punish him by

imprisoning him for life. Are we doing so because he committed

another heinous sex crime and deserves punishment for that act? No, he

did not commit that crime. We claim we are punishing him because he

401. See 28 U.S.C. § 534 (2000).

402. Interview with L.J. Holt, Chief of Police Services, Atascadero State Hospital, in Atascadero, Cal. (Aug. 8, 2002).

403. Id.; see supra notes 4–7 and accompanying text.

404. Federal Bureau of Investigation, United States Department of Justice, National Crime Information Center (NCIC), Federation of American Scientists, at http://www.fas.org/ irp/agency/doj/fbi/is/ncic.htm (last visited Feb. 18, 2003).

405. See supra note 7 (discussing 18 U.S.C. § 1073, which authorizes federal prosecution for the crime of unlawful flight to avoid prosecution or extradition to the state from which the arrestee escaped to face state criminal charges).