In Kentucky, can someone on home incarceration be arrested for escape if they leave home without permission or cut off their ankle monitor?
Plain-English summary
Ohio County's ARCH Program monitors people a court has ordered into home incarceration instead of jail. Its director asked the Attorney General two practical questions: can law enforcement arrest and charge someone with escape for breaking a home-incarceration condition, and is cutting off an ankle monitor by itself an arrestable escape?
On the first question, the opinion says yes. KRS 532.220(1) requires a home incarceree to stay home except for six listed activities (approved work and travel to it, job seeking, medical or mental-health treatment, approved education, regularly scheduled religious services, and approved community work service), and a violation "may subject the home incarceree to prosecution under KRS 520.030 (escape)." Kentucky's Supreme Court has held that the incarceree's residence counts as a "detention facility," so leaving without permission is escape in the second degree, a Class D felony. Because that is a felony, an officer can make a warrantless arrest on probable cause, and a report from the monitoring program about an unauthorized absence supplies that probable cause. The opinion adds that the Commonwealth still has discretion not to prosecute.
On the second question (removing the ankle monitor), the analysis is more careful. The monitor requirement sits in KRS 532.220(6), not subsection (1), so the escape-prosecution trigger in KRS 532.220(2) is not directly implicated. But under Stroud v. Commonwealth, the Supreme Court upheld an escape conviction where the defendant removed his device, because he had knowingly accepted home-incarceration conditions and was at the time charged with a felony. Reading Stroud together with Lawton, the opinion explains the two halves of the escape statute: escape from a "detention facility" (the unauthorized-absence route) and escape from custody while charged with or convicted of a felony (the route that supported Stroud). The takeaway: if the person is on home incarceration for a felony, removing the monitor can support the charge; if not, the prosecutor must prove an actual unauthorized departure, or the conduct is at most misdemeanor third-degree escape.
What this means for you
Law enforcement
Under this opinion, a monitoring-program report that a home incarceree left without permission, or removed or disconnected a required ankle monitor, can give probable cause for a warrantless felony arrest for second-degree escape (KRS 431.005(1)(c)). The opinion notes the unauthorized-absence route applies regardless of whether the underlying offense was a felony.
Prosecutors
The opinion flags what you have to prove. For an unauthorized absence, the residence-as-detention-facility theory from Lawton applies. For monitor removal where the person is not on home incarceration for a felony, you must prove the person actually left home without permission; otherwise the charge is misdemeanor third-degree escape under KRS 520.040. The felony charge or conviction that supports the custody route must be the reason for the home incarceration.
Home incarceration program staff
The opinion treats your detection and report of a violation as the factual basis that gives officers probable cause. It also points to the written home-incarceration agreement (KRS 532.210) as establishing the incarceree's knowing acceptance of the conditions.
Defense attorneys
The opinion preserves a real distinction between the two statutory routes to second-degree escape and notes that prosecution remains discretionary and that monitor-removal alone, absent a felony predicate or proof of departure, may only reach misdemeanor third-degree escape.
Common questions
Q: Is leaving home without permission really a felony?
A: Under this opinion, yes. Kentucky's Supreme Court treats the home incarceree's residence as a "detention facility," so an unauthorized departure is escape in the second degree, a Class D felony (KRS 520.030).
Q: Can police arrest without a warrant?
A: Yes. Second-degree escape is a felony, and KRS 431.005(1)(c) lets an officer make a warrantless arrest on probable cause for a felony even if it did not happen in the officer's presence. A monitoring-program report of the violation can supply that probable cause.
Q: Is cutting off the ankle monitor automatically escape?
A: Not automatically for everyone. If the person is on home incarceration for a felony, case law (Stroud) supports an escape charge. If not, the opinion says the prosecutor must prove the person actually left home without permission; otherwise it is at most misdemeanor third-degree escape.
Q: Does an arrest mean the person will be prosecuted?
A: Not necessarily. The opinion stresses the Commonwealth keeps discretion to decline prosecution, reflecting the statute's use of the word "may."
Background and statutory framework
A sentencing court may order home incarceration in lieu of jail for misdemeanants and non-violent felons (KRS 532.210(1)), subject to the conditions in KRS 532.220, including confinement to the home except for six listed activities (KRS 532.220(1)), a schedule of permitted absences (KRS 532.220(3)), and wearing an approved monitoring device (KRS 532.220(6)). A violation of subsection (1) may trigger escape prosecution under KRS 520.030 (KRS 532.220(2)). Escape in the second degree (KRS 520.030) is a Class D felony reached either by escape from a "detention facility" or by escape from custody while charged with or convicted of a felony; "escape" and "custody" are defined in KRS 520.010(5) and (2). The opinion relies on Lawton v. Commonwealth, 354 S.W.3d 565 (Ky. 2011), treating the residence as a detention facility; Stroud v. Commonwealth, 922 S.W.2d 382 (Ky. 1996), on monitor removal; Weaver v. Commonwealth, 156 S.W.3d 270 (Ky. 2005), on home incarceration as custody; Crawford v. Commonwealth, 824 S.W.2d 847 (Ky. 1992), and Baltimore v. Commonwealth, 119 S.W.3d 532 (Ky. App. 2003), on probable cause for warrantless arrest under KRS 431.005(1)(c). Conduct that does not meet the felony route falls under misdemeanor third-degree escape (KRS 520.040).
Citations and references
Statutes:
- KRS 532.210(1), KRS 532.220, and subsections (1), (2), (3), (6) (home incarceration and its conditions)
- KRS 520.030, (1), (2); KRS 520.010(2), (5); KRS 520.040 (escape offenses and definitions)
- KRS 431.005(1)(c) (warrantless felony arrest); KRS 532.210 (written agreement)
Cases:
- Lawton v. Commonwealth, 354 S.W.3d 565 (Ky. 2011), residence is a detention facility; two routes to second-degree escape
- Stroud v. Commonwealth, 922 S.W.2d 382 (Ky. 1996), monitor removal supported escape conviction
- Weaver v. Commonwealth, 156 S.W.3d 270 (Ky. 2005), home incarceration is custody
- Crawford v. Commonwealth, 824 S.W.2d 847 (Ky. 1992), and Baltimore v. Commonwealth, 119 S.W.3d 532 (Ky. App. 2003), probable cause for warrantless arrest
Source
- Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
- Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20Attorney%20General%2024-05.pdf
Original opinion text
The full opinion as issued by the Office of the Kentucky Attorney General:
April 26, 2024
OAG 24-05
Subjects: Whether home incarcerees may be arrested and charged with escape for violating a condition of their home incarceration.
Requested by: Jimmy Cantrell, Executive Director, Ohio County ARCH Program
Written by: Jeremy J. Sylvester, Assistant Attorney General
Syllabus: Home incarcerees may be arrested and charged with escape if the ARCH Program detects a violation of the conditions of their home incarceration, which may include an unauthorized absence from their home or removal of their monitoring device.
Opinion of the Attorney General
KRS 532.210(1) allows a sentencing court to order persons convicted of misdemeanors or non-violent felonies to serve part or all their sentences in their homes in lieu of the county jail. The Ohio County ARCH Program oversees the monitoring system for people ordered into home incarceration in Ohio County, Kentucky. [Footnote: Some individuals are subject to conditions of a pre-trial bond that include GPS monitoring and remaining at home except for approved matters. A violation of pre-trial bond conditions may not be considered escape. See KRS 520.010(2) (defining custody for the purpose of escape statutes as "restraint by a public servant pursuant to a lawful arrest, detention, or an order of court for law enforcement purposes, but does not include supervision of probation or parole or constraint incidental to release on bail."); see also, Weaver v. Commonwealth, 156 S.W.3d 270, 271 (Ky. 2005) (discussing the difference between release on bail versus home incarceration ordered as a form of pre-trial release).]
Orders for home incarceration must include the conditions in KRS 532.220. KRS 532.220(1) states the following conditions:
(1) The home incarceree shall be confined to his home at all times except when:
(a) Working at approved employment or traveling directly to and from such employment;
(b) Seeking employment;
(c) Undergoing available medical, psychiatric, or mental health treatment or approved counseling and after care programs;
(d) Attending an approved educational institution or program;
(e) Attending a regularly scheduled religious service at a place of worship; and
(f) Participating in an approved community work service program;
KRS 532.220(3) through (7) contain additional conditions of home incarceration.
A violation of the conditions in KRS 532.220(1) "may subject the home incarceree to prosecution under KRS 520.030 (escape)." KRS 532.220(2). KRS 520.030 provides:
(1) A person is guilty of escape in the second degree when he escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody.
(2) Escape in the second degree is a Class D felony.
The ARCH Program seeks guidance from our Office on what constitutes escape from home incarceration by asking the following questions:
(1) May law enforcement arrest and charge an incarceree for escape when the incarceree violates a condition set forth in KRS 532.220(1)?
A home incarceree may be prosecuted for the crime of escape in the second degree when he or she violates the conditions under KRS 532.220(1). KRS 532.220(2). KRS 532.220(1) requires that "[t]he home incarceree shall be confined to his home at all times except when" engaging in six allowable activities. Moreover, the home incarceree must conform to a schedule prepared by his supervising officer setting forth the times when the home incarceree has permission to be absent from his home and the locations where he may be during those times. KRS 532.220(3).
A person is guilty of escape in the second degree "when he escapes from a detention facility." KRS 520.030(1). Escape is statutorily defined as "departure from custody or the detention facility in which a person is held or detained when the departure is unpermitted, or failure to return to custody or detention following a temporary leave granted for a specific purpose or for a limited period." KRS 520.010(5). The residence of the home incarceree is a "detention facility" as that term is used in KRS 520.030(1). Lawton v. Commonwealth, 354 S.W.3d 565, 569 (Ky. 2011). Thus, leaving the residence for unauthorized reasons without permission constitutes escape in the second degree. Id. ("[F]or an incarceree in HIP, leaving the specified home without permission, or failing to return to the home after a temporary, authorized leave, is escape from a detention facility under KRS 520.030(1)."); see also, Weaver v. Commonwealth, 156 S.W.3d 270, 272 (Ky. 2005) (reversing dismissal of escape charge against person who absconded from his home for several weeks because home incarceration is considered "custody" within the meaning of the escape statute).
A police officer may conduct a warrantless arrest of a suspect who the officer has probable cause to believe committed a felony, even if the felony is not committed in the officer's presence. KRS 431.005(1)(c); see also, Crawford v. Commonwealth, 824 S.W.2d 847, 849 (Ky. 1992) (warrantless arrest of rape suspect proper based on eyewitness account, rape victim's identification of suspect, and victim's injuries). Escape in the second degree under KRS 520.030(1) is a felony. KRS 520.030(2). Thus, ARCH Program's report to law enforcement of its detection of a home incarceree's unauthorized departure from his home, which is also a violation of the conditions in KRS 532.220(1), should provide the necessary probable cause for law enforcement to perform a warrantless arrest of the home incarceree and charge him with escape in the second degree. The Commonwealth, however, retains the discretion to refrain from prosecuting the home incarceree following his arrest. Lawton 354 S.W.3d at 569 (discussing the KRS 532.220(2)'s use of the word "may").
(2) Does unauthorized removal of an ankle monitor constitute an arrestable offense of escape?
The home incarceration condition to wear an approved monitoring device is found in KRS 532.220(6). Thus, KRS 532.220(2), which refers to violations of subsection (1) as providing the basis of a prosecution for escape, is not directly implicated. Nonetheless, the Supreme Court of Kentucky has held that a home incarceree's unauthorized removal of his monitoring device is sufficient to sustain a conviction for escape in the second degree under KRS 520.030. Stroud v. Commonwealth, 922 S.W.2d 382, 384-85 (Ky. 1996) (affirming a conviction for escape because the defendant removed his monitoring device in violation of a condition of his home incarceration). The holding hinged on the defendant's knowing and voluntary acceptance of the conditions of home incarceration, which broadly were construed to constitute "custody" under the statute. Id. at 384-85. Every home incarceree must sign a written agreement with the court setting forth all conditions of home incarceration. KRS 532.210. Thus, every home incarceree should have knowingly and voluntarily accepted those conditions like the defendant in Stroud.
In Lawton, the Supreme Court of Kentucky discussed Stroud and made sure to delineate the two parts of the statute defining escape in the second degree, KRS 520.030. Lawton, 354 S.W.3d at 569-70. Under the first part of the statute, the defendant is guilty of escape in the second degree if he escapes from a "detention facility," which includes unauthorized absences from the residence of a home incarceree. Id. at 569. That was the ultimate holding of Lawton. The defendant in Stroud, however, was found guilty of escape in the second degree based on the second part of the statute "that criminalizes escape from custody while charged with or convicted of a felony." [Footnote: The felony charge or conviction must be the reason for the home incarceration. Lawton, 354 S.W.3d at 572. It is not sufficient to rely on a previous unrelated felony conviction to support a charge of escape in the second degree. Id.] Id. at 569. If a person escapes from custody without having been charged with or convicted of a felony, the person is only guilty of misdemeanor escape in the third degree. KRS 520.040.
In the opinion of the Office, law enforcement would have probable cause to believe that a home incarceree is committing felony escape in the second degree upon receipt of a report from the ARCH Program that he has removed or disconnected the ankle monitor required to be worn as a condition of home incarceration. As stated above, officers may effectuate a warrantless arrest of a suspect who the officers have probable cause to believe committed a felony. KRS 431.005(1)(c). Under Stroud, a home incarceree convicted of or being charged with a felony may be convicted of escape in the second degree by removing or disconnecting the ankle monitor ordered to be worn as a condition of home incarceration. Stroud, 922 S.W.2d at 385-86. Officers also would have probable cause to believe that a home incarceree, even one who has not been convicted of or charged with a felony, removed the ankle monitor to conceal an unauthorized departure from his residence. See Baltimore v. Commonwealth, 119 S.W.3d 532, 538-39 (Ky. App. 2003) ("[P]robable cause for arrest involves reasonable grounds for the belief that the suspect has committed, is committing, or is about to commit an offense."). As previously stated, a home incarceree's unauthorized absence from the home is an escape from a detention facility, which also constitutes escape in the second degree. Lawton, 354 S.W.3d at 569.
After the arrest of the home incarceree, the prosecution must carefully consider whether it can prove the elements of escape in the second degree beyond a reasonable doubt. Stroud was decided on the basis that the defendant had escaped from "custody" because he disconnected the bracelet he was required to wear as a condition of his home incarceration. Stroud, 922 S.W.2d at 383. The opinion is not clear on whether the prosecution also proved that the defendant made an unauthorized departure from his home. However, as the Supreme Court of Kentucky in Lawton pointed out, the defendant in Stroud was being charged with felony robbery at the time he was under home incarceration. Lawton, 354 S.W.3d at 569-70. Because of that felony charge, the conviction for escape in the second degree was proper under the part of KRS 520.030(1) criminalizing escape from custody while charged with or convicted of a felony. Id. at 570. If the home incarceree has not been charged with or convicted of a felony, it is the opinion of the Office that a prosecutor must prove beyond a reasonable doubt that a home incarceree impermissibly left his home after removing or disabling the monitoring device required to be worn as a condition of home incarceration. Absent that proof, the home incarceree would at most be guilty of misdemeanor third-degree escape from custody. KRS 520.040.
Russell Coleman
ATTORNEY GENERAL
Jeremy J. Sylvester