CRS 18-8-208.1 is the Colorado law making it a crime to attempt to escape from a jail, prison or other penal institution. The penalty carries mandatory incarceration, and the length of the sentence depends on the criminal offense for which the defendant was originally incarcerated.
The court may not grant a suspended sentence unless the defendant is a juvenile offender.
In this article, our Denver Colorado criminal defense lawyers discuss:
- 1. What is “attempt to escape” in Colorado?
- 2. What is the punishment?
- 3. How can defendants fight the charges?
Violating CRS 18-8-208.1 is not a probationable offense.
1. What is the definition of “attempt to escape” in Colorado?
The Colorado crime of attempt to escape is when a person in custody for criminal charges or a conviction knowingly tries but fails to break out. It makes no difference whether the location is
- a county jail,
- Colorado State Prison,
- a police station,
- a sheriff’s office, or
- a transport vehicle, such as a prison bus.1
Classic examples of attempting to escape include trying to jump the prison fence or dig an underground tunnel. Other examples that may violate the escape statute include picking locks, hacking prison security computers, or possibly bribing a prison guard or other law enforcement.
If the prisoner actually escapes, he or she would likely be charged with the crime of escape from custody (CRS 18-8-208).
2. What is the punishment?
Colorado penalties for escaping from jail or prison depend on why the defendant was being incarcerated:
| Reason for incarceration | Penalty for attempted escape in Colorado |
| Felony conviction | Class 4 felony:
|
| Charged with felony | Class 5 felony:
|
| Misdemeanor or petty offense conviction | Class 2 misdemeanor:
|
| Charged with misdemeanor or petty offense | Petty offense:
|
The sentence for escaping from custody runs consecutively with any original sentence the defendant was currently serving or will be serving upon conviction of the underlying charges.3
Example: Joseph is arrested and booked for the felony charge of rape (CRS 18-3-402). While in jail awaiting his trial, he attempts to escape. For the attempted escape, Joseph is sentenced to 6 years in prison. Joseph later gets convicted as a sex offender on the rape charge and is ordered to serve 5 years. Since the escape and rape sentences run one after the other (“consecutive sentences”), Joseph will serve a total of 11 years in prison.
Note that judges may not grant probation in attempted escape cases. The only defendants eligible for a suspended sentence in attempted escape cases are those sentenced to the youthful offender system.4
A potential defense to attempted escape is that the defendant did not act knowingly.
3. How can defendants fight the charges?
Three potential defenses to charges of attempted escape include the following:
- Mistaken identity. Maybe the jail guards misidentified the defendant as the real escapee. Inmates are all dressed in identical uniforms, so it is easy for staff or police officers to have trouble distinguishing between them. If the District Attorney cannot demonstrate beyond a reasonable doubt that the defendant was the one trying to escape, the charge should be dropped.
- False accusations. Division of Criminal Justice facilities are rough places, and inmates may attempt to get one another in trouble by levying false allegations. Sometimes prison staff attempt to get inmates into trouble by falsely alleging that they tried to break out. In these cases, the defense attorney would try to impeach the accuser’s credibility to unearth his/her motive to lie. This may be sufficient to cause the D.A. to dismiss the charge.
- No knowledge. Perhaps the defendant had no intention to escape and simply took a wrong turn while walking away. Or perhaps the defendant was in the midst of a medical episode and had no control over his/her actions at the alleged time of the escape. Unless prosecutors can prove the defendant knowingly tried to escape as a voluntary act, criminal charges should not stand.
Example: A Colorado inmate is scared to get the COVID 19 vaccine. When the nurse appears the inmate runs and crouches in a hiding place, which turns out to be a tunnel leading to the outside of the prison. Because the inmate did not knowingly try to escape lawful custody, he has a solid defense to attempted escape charges.
Legal References
- Colorado Revised Statute 18-8-208.1. Attempt to Escape. The code section states that:
(1) Except as otherwise provided in subsection (1.5) of this section, if a person, while in custody or confinement following conviction of a felony, knowingly attempts to escape from said custody or confinement, he or she commits a class 4 felony. The sentence imposed pursuant to this subsection (1) shall run consecutively with any sentences being served by the offender.(1.5) If a person is serving a direct sentence to a community corrections program pursuant [residential community corrections facility] to section 18-1.3-301, or is transitioning from the department of corrections to a community corrections program, or is placed in an intensive supervision program pursuant to section 17-27.5-101, or is participating in a work release or home detention program pursuant to section 18-1.3-106 (1.1), intensive supervision program [intensive supervision parole program], or any other similar authorized supervised or unsupervised absence from a detention facility as defined in section 18-8-203 (3), is housed in a staff secure facility as defined in section 19-1-103 (101.5), or is placed in a community corrections program for purposes of obtaining residential treatment as a condition of probation pursuant to section 18-1.3-204 (2.2) or 18-1.3-301 (4)(b), then the person is not in custody or confinement for purposes of this section.(2) If a person, while in custody or confinement and held for or charged with but not convicted of a felony, knowingly attempts to escape from said custody or confinement, he commits a class 5 felony. If the person is convicted of the felony or other crime for which he was originally in custody or confinement, the sentence imposed pursuant to this subsection (2) shall run consecutively with any sentences being served by the offender.(3) If a person, while in custody or confinement following conviction of a misdemeanor or petty offense, knowingly attempts to escape from said custody or confinement, he is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than two months nor more than four months. The sentence imposed pursuant to this subsection (3) shall run consecutively with any sentences being served by the offender.(4) If a person, while in custody or confinement and held for or charged with but not convicted of a misdemeanor or petty offense, knowingly attempts to escape from said custody or confinement, he is guilty of a petty offense and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than two months nor more than four months. If the person is convicted of the misdemeanor or petty offense for which he was originally in custody or confinement, the sentence imposed pursuant to this subsection (4) shall run consecutively with any sentences being served by the offender.(5) The sentences imposed by subsections (1), (1.5), and (2) of this section and the minimum sentences imposed by subsections (3) and (4) of this section shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part; except that the court may grant a suspended sentence if the court is sentencing a person to the youthful offender system pursuant to section 18-1.3-407.(6) Repealed.(7) Any person held in a staff secure facility, as defined in section 19-1-103 (101.5), C.R.S., shall be deemed to be in custody or confinement for purposes of this section.
- CRS 18-8-208.1 Prior to March 1, 2022, the misdemeanor penalties included 2 to 4 months in jail. SB21-271.
- Same; People v. Evans, (2015) Court of Appeals, 156, 363 P.3d 814; People v. Luther, (Colo. 2002) 58 P.3d 1013.
- CRS 18-8-208.1.