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.1
Orders for home incarceration must include the conditions in KRS 532.220.
KRS 532.220(1) states the following conditions:
1 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).Opinion of the Attorney General 24-05
April 26, 2024
Page 2
2
(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 settingOpinion of the Attorney General 24-05
April 26, 2024
Page 3
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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 aOpinion of the Attorney General 24-05
April 26, 2024
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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.”2 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
2 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.Opinion of the Attorney General 24-05
April 26, 2024
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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