concurring.
Williams, who had just been paroled on condition that he reside at a halfway house designated by the Parole Board, fled from the van that was transporting him to this halfway house. For this act of flight, Williams was charged with second-degree escape under AS 11.56.310(a)(1)(B). To prove this crime, the State had to show that Williams removed himself from official detention for a felony when he had no lawful authority to do so.
Broadly speaking, the issue raised in this appeal is whether Williams was in "official detention" when he fled.
The phrase "official detention" is defined in AS 11.81.900(b)(40) as encompassing "custody, arrest, [or] surrender in lieu of arrest", as well as "actual or constructive restraint under [any] order of a court in a criminal or juvenile proceeding, other than an order of conditional bail release".
The State concedes that the only part of this definition that conceivably applies to Williams's situation is "custody". Thus, the real question is whether a person who has been released from prison on parole, but who has been ordered by the Parole Board to reside at a specific halfway house, remains in "custody" for purposes of the escape statute.
The Alaska Statutes do not contain a pertinent definition of "custody". However, the State takes the position that the core meaning of "custody" is "physical restraint". For this reason, the State concedes that people who have been released from prison on either probation or parole are, generally speaking, not "in custody".
However, the State argues that sometimes, when a person's conditions of probation or parole impose restrictions on the person's residence, or on the person's physical movement (or both), the restrictions can be so broad or extensive that they approximate physical confinement. In such instances, the State contends, the probationer or parolee should be considered to be "in custody" for purposes of the escape statutes.
In essence, the State proposes that this Court adopt the same approach to "custody" (for purposes of the escape statutes) as the approach that this Court adopted in Nygren v. State1 on the question of whether a defendant's conditions of bail release are so restrictive that they should be deemed "incarceration" for purposes of awarding the defendant credit against any subsequently imposed sentence of imprisonment.
But the Alaska Legislature has already declared that it does not want to incorporate the Nygren line of cases-more specifically, the Nygren approach to "incarceration"into the escape statutes.
As explained earlier in this concurrence, a charge of second-degree escape requires the State to prove that the defendant unlawfully removed themself from "official detention". And the legislature's definition of "official detention", AS 11.81.900(b)(40), declares that this term does not include "orderf{s] of conditional bail release".
By adding this clause to the definition of "official detention", the legislature essentially declared that it did not want charges of escape to turn on a case-by-case assessment of the nature of a defendant's bail conditions, and whether those conditions were restrictive enough to approximate incarceration.
Because the legislature rejected the Ny-gren approach to bail conditions when it framed the definition of "official detention", I conclude that it would run counter to the legislature's intent for us to adopt the State's current proposal of a Nygren-like approach to the definition of "custody" in the context of probation and parole.
For these reasons, I agree with my colleagues that Williams's conviction for second-degree escape should be reversed.
. 658 P.2d 141, 146 (Alaska App.1983).