Under CRS 18-8-208, it is a crime in Colorado for a prisoner to escape (or for anyone to aid a prisoner in escaping) from a jail, prison or other penal institution.

Escaping from custody on a felony charge is a felony, and escape from custody on misdemeanor charges is a misdemeanor. In most cases, the term of imprisonment will run consecutively to any sentence the defendant was serving at the time of the escape.

In this article, our Denver Colorado criminal defense lawyers will address:

• 1. What is escape under Colorado law?
• 2. What is aiding escape?
• 3. What are the penalties?
• 4. What are the best defenses?
• 5. Related Offenses

1. What is escape under Colorado law?

Escape is a crime that is committed by “knowingly” escaping from custody or confinement.¹ This includes escaping from a:

• state prison (with the Colorado Department of Corrections),
• county jail,
• police holding cell, or
• any other detention facility or staff secure facility.

Escaping also comprises “walking away” from a work-release facility or a residential or non-residential community corrections facility.²

Like all crimes, escape consists of elements that prosecutors have the burden to prove should the case go to trial. These elements are:

1. A voluntary act;
2. This act constitutes a departure from one of the forms of lawful custody or confinement specified under the escape statute;
3. A prisoner commits this voluntary act; and
4. The prisoner commits this act “knowingly”, which means with an awareness on the part of the prisoner that his or her conduct is unlawful.³

Note that escape is a general intent crime, not a specific intent crime. This means people can be convicted of escape even if they did not necessarily mean to end up free from incarceration. Merely acting in a way that departs from how an inmate should not necessarily be treated as escape.⁴

Example: Mitch is an inmate being transported to court in a police car. The police officer who is driving insults Mitch. Angry, Mitch kicks the officer. This causes the driver to pass out and crash the car, resulting in Mitch being ejected. Here, Mitch could face escape charges even though escaping was not his intent when punching the officer.

Escape is a continuing crime. This means that once an individual escapes police custody, they are an escapee until they are returned to custody. The statute of limitations to press criminal charges for escape does not begin to run until the escapee has been returned to custody.⁵

2. What is aiding escape?

Any person who knowingly aids, abets, or assists another person to escape from custody or confinement commits the offense of aiding escape.

It is not necessary that the prisoner actually escapes or attempts to escape. Knowingly providing assistance to escape is enough to constitute a crime. This could include providing materials to help escape or providing assistance in the escape.⁶

3. What are the penalties?

The Colorado penalties for the crime of escape and aiding escape depend on the criminal offense for which the prisoner is in custody. Escape – or aiding escape – is generally a felony if the person was in custody for a felony, and a misdemeanor if the person was in custody for a misdemeanor offense. Penalties are generally more severe if the escape followed a criminal conviction than if the escape occurred before any conviction.

Note that the jail or prison sentence for an escape usually runs consecutively with any other criminal sentence the defendant was currently serving.

Example: Jenny just started a year-long prison sentence and escapes. Eventually Jenny gets caught, is convicted of escape, and is sentenced to four years. Therefore, Jenny will end up serving five years in prison. One for the original crime, and four for the escape.

The only time an escape sentence may run concurrently with any underlying sentence is if the defendant either:

1. was serving a direct sentence to a community corrections program, or
2. was in an intensive supervision parole program

In these two situations, the judge has the discretion to run the sentences one after each other or at the same time.⁷

Escape Penalties

Class of Offense Causing Confinement	Escape Offense Charges	Penalties
Convicted of Class 1 or Class 2 Felony	Class 2 Felony	8 to 24 years in prison and/or a fine of up to $1,000,000
Convicted of Any Other Felony	Class 3 Felony	4 to 12 years in prison and/or a fine of up to $750,000
Charged But Not Convicted of a Felony	Class 4 Felony	2 to 6 years in prison and/or a fine of up to $500,000
Convicted of a Misdemeanor or Petty Offense	Class 2 Misdemeanor	Up to 120 days in jail and/or up to $750
Charged But Not Convicted of a Misdemeanor or Petty Offense	Petty Offense	Up to 10 days in jail and/or a fine of up to $3008

Aiding Escape Penalties

Aiding escape is a class 2 felony if the person aided was in custody or confinement as a result of a conviction for a class 1 or class 2 felony. The penalties for a class 2 felony include 8 to 24 years in prison and a fine of up to $1 million. In addition, there is a mandatory parole period of 5 years for a class 2 felony conviction in Colorado.

Aiding escape is a class 3 felony if the person aided was in custody for any other felony (other than class 1 or class 2). The penalties for a class 3 felony include 4 to 12 years in prison and a fine of up to $750,000. In addition, there is a mandatory parole period of 5 years for a class 3 felony conviction in Colorado.

Aiding escape is a class 2 misdemeanor if the person aided was in custody or confinement for a misdemeanor or petty offense. The penalties for a class 2 misdemeanor include up to 120 days in jail and/or up to $750.⁹

4. What are the best defenses?

There are a number of defenses available to escape charges. Defenses include:

• The defendant did not knowingly attempt to escape
• The defendant did not knowingly aid the escapee
• The defendant did not actually aid anyone
• The defendant was not attempting to escape
• The defendant was not lawfully in confinement or custody
• The defendant was never convicted of any crime

Duress and “choice of evils” are two affirmative defenses available to criminal escape charges. This means that the defendant did escape from police custody, but they had a justification for doing so.

A person may not be convicted of aiding escape if they were acting at the direction of another person because of the use or threat of force. The force or threat of force must be such that a reasonable person in the same situation would be unable to resist.¹⁰

Escape is justifiable and not criminal when it is necessary as an emergency measure to avoid imminent injury by reason of a situation occasioned through no conduct of the actor. The “choice of evils” must be of sufficient gravity according to ordinary standards of intelligence and morality.¹¹

5. Related Offenses

Accessory to Crime – CRS 18-8-105

Giving assistance of any kind to someone who is suspected of a crime or has committed a crime is being an accessory. Penalties depend on the underlying crime.

Attempted Escape – CRS 18-8-208.1

Knowingly attempting to escape from prison or jail is a crime in Colorado. The penalties for attempted escape depend on the crime for which you were incarcerated. Attempted escape will generally result in mandatory prison time.¹²

Resisting Arrest – CRS 18-8-103

Resisting arrest or attempting to prevent a peace officer from effecting an arrest is a misdemeanor in Colorado. The penalties for resisting arrest by a law enforcement officer include up to 120 days in jail and/or up to $750.

Possession of contraband in the first degree (by an inmate) – CRS 18-8-204.1

Inmates found in possession of weapons or other prohibited items face charges for possession of contraband. Possession of a deadly weapon is a felony, carrying up to 6 years in prison and a fine of up to $500,000.

Introducing contraband in the first degree (to a jail or prison) – CRS 18-8-203

People who bring prohibited items into a jail or prison face charges for introducing contraband. The punishment for introducing contraband in the first degree includes up to 6 years in prison and a fine of up to $500,000.

Other related crimes not listed above include:

• inducing prisoners to absent selves (CRS 18-8-202)
• introducing contraband in the second degree (CRS 18-8-204)
• possession of contraband in the second degree (CRS 18-8-204.2)
• aiding escape from the civil process (CRS 18-8-205)
• assault during escape (CRS 18-8-206)
• holding hostages (CRS 18-8-207)
• unauthorized absence (CRS 18-8-208.2)
• riots in detention facilities (CRS 18-8-211)

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