Escape and Failure to Return in Massachusetts: What Must Be Proved, the 10-Year Penalty, and Your Defenses

Escape is a felony in Massachusetts, and it covers far more than climbing a prison wall. Walking away from a courthouse, slipping out of an officer’s custody during transport, defeating an electronic monitor, or simply not coming back from a furlough or work release can all be charged under the same statute, with up to 10 years in state prison.

What the Law Covers

G.L. c. 268, § 16 applies to a prisoner of any penal institution, a prisoner held for a court appearance, a person committed to the treatment center as sexually dangerous, and anyone committed to a jail or correctional institution by a lawful court order. The crime is committed by anyone in that group who:

• escapes or attempts to escape from the institution or its grounds;
• escapes or attempts to escape from a courthouse or its grounds;
• escapes from the custody of an officer while being taken to or from the institution;
• knowingly disables, or tries to disable or defeat, electronic monitoring; or
• fails to return from a temporary release, including a furlough under G.L. c. 127, § 90A.

The Appeals Court has held that failing to report to serve a weekend sentence is escape (Commonwealth v. Porter, 87 Mass. App. Ct. 676 (2015)), and the SJC has held that walking away from a work release program can be prosecuted under § 16 (Commonwealth v. Best, 381 Mass. 60 (1980)). The statute also covers pretrial detainees, not just people serving a sentence.

What the Commonwealth Must Prove

Under the District Court model jury instruction for escape (Instruction 7.220), the Commonwealth must prove three things beyond a reasonable doubt:

• You were a prisoner committed by legal procedures to the custody of a penal or correctional institution or a jail;
• You escaped from, or failed to return from a temporary release from, that institution or jail, its grounds, a courthouse or its grounds, or an officer’s custody while being taken to or from the institution; and
• You intentionally left custody without permission, not by accident or mistake.

For an attempt, the Commonwealth must also prove an overt act toward the escape. Lawful custody is an element, but the Commonwealth does not have to show that the conviction you were held on was free of legal error. Wrongful intent can be inferred from an unauthorized departure if there is no satisfactory explanation. And the Commonwealth must prove you actually left the grounds; being unaccounted for inside the facility for a time is not enough.

Penalties

• Escape, attempted escape, or failure to return (§ 16): up to 10 years in state prison, or up to 2½ years in a jail or house of correction. Because it can be punished by state prison, it is a felony.
• Escape from a city or town jail (§ 15A): up to 2½ years in a jail or house of correction, a fine of up to $500, or both.
• Helping a prisoner escape (§ 15): up to 10 years in state prison (or a fine up to $500) if the prisoner is serving a state prison sentence or charged with a felony; up to 7 years if serving a sentence elsewhere; and up to 2 years in jail (or a fine up to $500) if the prisoner is charged with a misdemeanor.
• Aiding an escape from an officer (§ 17): up to 2 years, a fine of up to $500, or both.

Defenses

• No lawful custody: the Commonwealth must prove you were lawfully committed. Paperwork gaps matter.
• Not a covered place or custody: § 16 lists specific institutions, courthouses, and custody during transport. Whether your situation fits is often a real question.
• No intent: leaving by accident or mistake, or a genuine misunderstanding about a release date or reporting time, is not escape.
• Never left the grounds: being missing from a count or an assigned area is not the same as leaving the institution.
• Duress: a recognized defense in Massachusetts, with strict requirements.

Why a Lawyer Matters

An escape charge carries a 10-year state prison exposure on top of whatever case or sentence you already face, and judges take it seriously when setting bail and sentencing. Many cases turn on records: commitment papers, furlough or work release terms, and what you were told about when to return. Attorney William J. Barabino has defended criminal cases for 23 years. Call 781-393-5900.

Related Charges

• Bail jumping (G.L. c. 276, § 82A): failing to appear in court while released on bail, rather than leaving custody.
• Resisting arrest (G.L. c. 268, § 32B): using or threatening force to stop an arrest, before you are in custody.
• A&B on a police officer or public employee (G.L. c. 265, § 13D): often charged when an escape attempt involves force.

Disclaimer

This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.