Transportation of Federal Prisoners to State Courts
Pursuant to Writs of Habeas Corpus
T h e A tto rn e y G en eral needs no specific s ta tu to ry a u th o riz a tio n in o rd e r to su rre n d e r
c u sto d y o f a federal p riso n er to sta te au th o ritie s for tra n sp o rta tio n to a sta te c o u rt
p u rsu an t to a w rit o f h abeas co rp u s, an d no federal sta tu te p ro h ib its it.
S u rre n d e rin g a fed eral p riso n er to th e te m p o ra ry physical c u sto d y an d c o n tro l o f state
officers d o es not resu lt in a loss o f federal ju ris d ic tio n o v e r the prisoner.
E scap e o f a federal p riso n er tem p o rarily in th e c u sto d y o f sta te a u th o ritie s p ursuant to th e
d irectio n o f th e A tto rn e y G e n e ra l w o u ld v io late the federal escap e sta tu te , 18 U .S.C .
§751.
July 25, 1980
M EM ORANDUM OPINION FOR
T H E DIRECTOR, BUREAU O F PRISONS
This responds to your request for our opinion whether federal prison
ers may be released to the physical custody of state law enforcement
officers for transportation to a state court pursuant to the issuance of a
writ of habeas corpus ad testificandum or ad prosequendum . 1 You also
have requested our opinion whether escape by a prisoner thus released
could be prosecuted as escape from federal custody under 18 U.S.C.
§751 (Supp. I 1977).
The United States Marshals Service (USMS) concludes that the
Bureau of Prisons (BOP) may relinquish custody temporarily to state
officials on state court writs without waiving federal jurisdiction or
violating federal law. The USMS further concludes that a federal pris
oner who escapes from such temporary state custody has violated 18
U.S.C. § 751. In your view, a federal prisoner may not be released from
the physical custody of federal agents without specific statutory au
thorization, because federal custody must remain unbroken. You also
suggest that if a federal prisoner who is released to state officials
escapes, he could not be prosecuted under the federal escape statute.
For reasons stated more fully below, we conclude that federal juris
diction over a prisoner committed to the custody of the Attorney
General is not waived or otherwise lost if physical custody is surren
1 Y our question, and accordingly, this response, are limited to situations to w hich the Interstate
A greem ent on D etainers, 18 U.S.C. A ppendix, does not apply either because the requesting state is not
a party to the A greem ent o r because the request for production is pursuant to a w rit o f habeas corpus
ad testificandum, and thus not w ithin the scope o f the A greem ent.
719
dered temporarily to state officials for the purpose of producing the
prisoner in a state court pursuant to the issuance of a writ of habeas
corpus ad testificandum or ad prosequendum. We conclude that specific
statutory authorization is not required for such a temporary transfer of
custody, and we have found no statute which expressly or impliedly
prohibits it. We further conclude that escape by a federal prisoner
while in the temporary custody of state officials would violate the
federal escape statute.
I.
In 1922, the Supreme Court settled the question whether a federal
prisoner could be taken on a writ of habeas corpus to a state court and
there prosecuted on state charges. Ponzi v. Fessenden, 258 U.S. 254
(1922). Ponzi argued, inter alia, that the state court could not try him
without jurisdiction over his person and that, as a prisoner of the
United States, he was “within the dominion and exclusive jurisdiction”
of the United States. Id. at 258. The Court rejected this argument,
describing it as “a refinement which if entertained would merely ob
struct justice,” and stated:
The trial court is given all the jurisdiction needed to try
and hear him by the consent of the United States, which
only insists on his being kept safely from escape or from
danger under the eye and control of its officer. This
arrangement of comity between the two governments
works in no way to the prejudice of the prisoner or of
either sovereignty.
Id. at 265-66. The Court emphasized that our scheme of government,
with the federal government and the governments of the several states
each having their own system of courts, requires “not only definite
rules fixing the powers of the courts in cases of jurisdiction over the
same persons and things . . . but also a spirit of reciprocal comity and
mutual assistance to promote due and orderly procedure.” Id. at 259.
Physical custody of the federal prisoner was not an issue in Ponzi,
however. A federal agent at all times had custody, and the Court, while
not expressly relying on this fact as essential to the holding, did note it.
Following the lead of Ponzi, federal courts consistently have ruled
that the federal government does not lose jurisdiction over a federal
prisoner if it, as a matter of comity, arranges to produce a prisoner for
prosecution in state court or for service of a state sentence. See, e.g.,
Chunn v. Clark, 451 F.2d 1005, 1006 (5th Cir. 1971); Truesdell v. United
States, 400 F.2d 859, 860 (8th Cir. 1968); Murray v. United States, 334
F.2d 616, 617 (9th Cir. 1964); Lovell v. Arnold, 391 F. Supp. 1047, 1048
(M.D. Pa. 1975); United States ex rel. Williams v. Fitzpatrick, 299 F.
Supp. 260, 261 (S.D.N.Y. 1969).
720
As noted in both your opinion request and the USMS memorandum,
the past practice consistently has been to transport federal prisoners to
state courts in the custody of a federal marshal and to require the states
to reimburse the USMS for this expense. Accordingly, the question
presented here, which is one of physical custody, has not been ad
dressed directly by the courts. The cases, such as those cited above,
which have considered related questions, however, have inferred that
temporary transfers of physical custody also are matters of comity to be
worked out between federal and state authorities.
In Allen v. Hunter, 65 F. Supp. 365 (D. Kan. 1946), for example, the
court rejected the petitioner’s claim that the federal government lost all
jurisdiction over him when, after convicting and sentencing him, it
permitted him to be returned to the Indiana State Prison. Quoting from
the Tenth Circuit in Wall v. Hudspeth, 108 F.2d 865, 866 (10th Cir.
1940), the court held:
When the court of one sovereign takes a person into its
custody on a criminal charge he remains in the jurisdic
tion of that sovereign until it has been exhausted, to the
exclusion of the courts of the other sovereign. That rule
rests upon principles of comity, and it exists between
federal and state courts. [Cites omitted.] But either the
federal or a state government may voluntarily surrender
its prisoner to the other without the consent of the pris
oner, and in such circumstances the question of jurisdic
tion and custody is purely one of comity between the two
sovereigns, not a personal right of the prisoner which he
can assert in a proceeding of this kind.
Allen v. Hunter, 65 F. Supp. at 367-68 (emphasis added). See also Young
v. Harris, 229 F. Supp. 922, 924 (W.D. Mo. 1964). The Fifth Circuit in
Chunn v. Clark, supra, believed it “well-established” that a prisoner has
no standing to contest an agreement between two sovereigns, and thus
ruled that federal authorities did not lose jurisdiction over Chunn by
complying with an Alabama writ. 451 F.2d at 1006.2 Similarly, in Potter
v. Ciccone, 316 F. Supp. 703, 705 (W.D. Mo. 1970), the court stated the
“well-established” rule that the federal government does not lose juris
diction of a prisoner because it permits a state “to take the prisoner into
its custody . . .” (Emphasis added.) The court continued: “Thus, while
the temporary custody of the other sovereign may postpone the rights
* M any o f these cases have arisen on w rits o f habeas corpus filed by prisoners seeking either a
release from custody o r freedom from prosecution. T h e courts have held that such prisoners have no
standing to contest an agreem ent betw een tw o sovereigns concerning the tem porary exchange o f
custody o f the prisoners on w rits o f habeas corpus ad prosequendum o r their agreem ent as to the order
o f prosecution o r execution o f sentence. See, e.g., Chunn v. Clark, 451 F.2d 1005 (Sth C ir. 1971);
Derengowski v. U.S. Marshal, 377 F.2d 223 (Sth Cir. 1967); Lovell v. Arnold, 391 F. Supp. 1047 (M .D.
Pa. 1975).
721
of the first sovereign, it cannot defeat them and jurisdiction is not lost.”
Id. at 705-06.3
These issues also have arisen when state authorities have released
state prisoners to the custody of federal authorities. Although in many
of these cases, actual physical custody was transferred to federal au
thorities, the courts refused to find a loss of state jurisdiction. In
Bullock v. Mississippi, 404 F.2d 75 (Sth Cir. 1968), the prisoner-appellant
sought release from a state detainer on the ground that by earlier
transferring him to federal custody, the state had waived its right to
jurisdiction over him. The court ruled that “[t]he State, by giving
temporary custody to the federal authorities does so without a com
plete surrender of its prior jurisdiction over him.” Id. at 76. See also
Derengowski v. U.S. Marshal, 377 F.2d 223 (8th Cir. 1967).
These same rules apply when a prisoner is produced pursuant to a
writ of habeas corpus ad testificandum. In In re Liberatore, 574 F.2d 78,
89 (2d Cir. 1978), the court held that: “any ‘loan’ to the second sover
eignty in compliance with such a writ or any other temporary transfer
of custody from the sovereignty having the prior jurisdiction cannot
affect in any way whatever any final judgment of conviction already
entered against the prisoner there or affect the running of the sentence
imposed pursuant to that judgment.” And, recently, the Ninth Circuit
implemented this rule by declaring that a district judge’s attempt to
transfer a prisoner (who was serving concurrent federal and state sen
tences in state prison) from state to federal custody violated fundamen
tal principles of comity and separation of powers. United States v.
Warren, 610 F.2d 680 (9th Cir. 1980). The court wrote:
Determination of priority o f custody and service of sen
tence between state and federal sovereigns is a matter o f
comity to be resolved by the executive branches of the
two sovereigns . . . [T]he sovereign with priority of juris
diction, here, the United States, may elect under the doc
trine of comity to relinquish it to another sovereign. This
discretionary election is an executive, and not a judicial
function. [Cites omitted.]
In the federal system, the “power and discretion” to
practice comity is vested in the Attorney General.
Id. at 684-85 (emphasis added).
The cases cited above establish that surrendering a prisoner to an
other jurisdiction for purposes of prosecution, testimony, or service of
sentence does not affect a loss of jurisdiction by the surrendering
3 Loss o f jurisdiction also has been asserted w here a state took into custody a federal defendant
w h o was released from federal custody pending appeal. In Jones v. Taylor, 327 F.2d 493, 493-94 (10th
Cir. 1964), the c o u rt rejected this contention because “ [w]hen a person is convicted o f independent
crim es in state and federal courts, the question o f jurisdiction and custody is one o f com ity betw een the
tw o governm ents and not a personal right o f the prisoner" (em phasis added).
722
authority. Although most of these cases did not address directly the
question you raise other than in dicta, we believe that the policies
underlying these cases yield the same result here. In our opinion,
therefore, Federal jurisdiction is not lost if physical custody and control
of Federal prisoners is transferred temporarily to State officers.4
II.
In addition to raising jurisdictional questions, you have suggested that
custody of a federal prisoner may not be surrendered to state authori
ties absent congressional authorization. Again relying on Ponzi v.
Fessenden, supra, we believe that, as a general rule, specific statutory
authorization is not required. In Ponzi, the Court wrote: “There is no
express authority authorizing the transfer of a federal prisoner to a state
court for [trial]. Yet we have no doubt that it exists and is to be
exercised with the consent of the Attorney General.” 258 U.S. at 261 —
62. The Court recited the many duties of the Attorney General with
respect to prisons and prisoners, and concluded:
This recital of the duties of the Attorney General leaves
no doubt that one of the interests of the United States
which he has authority and discretion to attend to,
through one of his subordinates, in a state court, under
§367, Rev. Stats., is that which relates to the safety and
custody of United States prisoners in confinement under
sentence of federal courts. In such matters he represents the
United States and may on its part practice the comity which
the harmonious and effective operation o f both systems o f
courts requires, provided it does not prevent enforcement o f
the sentence o f the federal courts or endanger the prisoner.
Logan v. United States, 144 U.S. 263.
Id. at 263 (emphasis added).5
Although we believe that specific statutory authorization is not re
quired, it is necessary to review relevant statutes to determine whether
4 In one sense, federal jurisdiction may be lost if physical custody is relinquished to state authorities.
If a state violates doctrines o f com ity and refuses to return the prisoner to federal authorities, the
federal governm ent has no immediate jurisdiction o v er the prisoner w ithout actual physical custody of
the body. Its jurisdiction o v er the prisoner is limited to its pow er to enforce the federal sentence once
the prisoner is released from slate custody.
Unless an enforceable agreem ent is struck betw een federal and state authorities, the federal go v ern
ment would be w ithout an adequate immediate rem edy if the state refuses to return the prisoner. In
that event, absent a violation o f the C onstitution, law, o r treaties o f the U nited States (28 U.S.C.
§2254), the federal governm ent w ould have to aw ait the release o f the prisoner by the state. See
Strand v. Schmittroth, 251 F.2d 590, 604-06 (9th Cir. 1957). T he A ssociate D eputy A ttorney G eneral
has indicated that this is not a serious practical problem because, if it happened once, no additional
prisoners w ould be released to that state.
5 See also United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980). T h e legislation creating the
D epartm ent o f Justice authorized the A tto rn ey G eneral to send the Solicitor G eneral or any officer o f
the D epartm ent o f Justice “ to any State o r district in the U nited States to attend to the interests o f the
United States in any suit pending . . . o r to attend to any o th er interest o f the U nited States." A ct of
June 22, 1870, §5, 16 Stat. 162, 163. T h e current version o f this section is 28 U.S.C. §517.
723
Congress has prohibited, either expressly or impliedly, exercise of
comity in this area by the Attorney General. We find no express
statutory prohibition on temporary transfers of custody for the purpose
of transporting federal prisoners to state court. The only statute we find
which might be read to prohibit impliedly such a transfer is 18 U.S.C.
§4008.6
Section 4008 provides: “Prisoners shall be transported by agents
designated by the Attorney General or his authorized representative”
(emphasis added). The question raised by this section is whether it
requires that in all cases a federal prisoner must be transported by a
federal agent. We believe it should not be interpreted so restrictively.
In our opinion, this statute was not intended to cover transportation
solely for a state’s convenience and upon a state’s request.
Section 4008 was designed primarily to authorize payment of trans
portation expenses.7 After stating that prisoners shall be transported by
designated agents, the section provides: “The reasonable expense of
transportation, necessary subsistence, and hire and transportation of
guards and agents shall be paid by the Attorney General from such
appropriation for the Department of Justice as he shall direct.” 8 Simi
lar language first appeared in an 1864 Act, which provided:
Be it enacted . . . [t]hat all persons who have been, or
who may hereafter be, convicted of crime by any court of
the United States—not military—the punishment whereof
shall be imprisonment, in a district or territory where, at
the time of such conviction, there may be no penitentiary
or other prison suitable for the confinement of convicts of
6 Ac first glance, 18 U.S.C. § 4085(a) seems to relate to this question. This section provides:
W henever any federal prisoner has been indicted, inform ed against, o r convicted o f a
felony in a court o f record o f any State o r the D istrict o f Colum bia, the A ttorney
G eneral shall, if he finds it in the public interest to d o so, upon the request o f the
G o v e rn o r o r the executive authority thereof, and upon the presentation o f a certified
co p y o f such indictm ent, inform ation o r judgm ent o f conviction, cause such person,
prior to his release, to be transferred to a penal o r correctional institution w ithin such
State o r D istrict.
• * • • *
T h e expense o f personnel and transportation incurred shall be chargeable to the
appropriation for the “ Support o f U nited States prisoners."
This section, how ever, does not address the issue o f tem porary transfer o f custody. It is distinguishable
from the situations under review because it contem plates transfer im m ediately prior to expiration of
the federal sentence so that upon release the prisoner is subject to the state authority. See S. Rep. No.
1410, 76th C ong., 3d Sess. 1 (1940); H .R. Rep. No. 1885, 76th C ong., 1st Sess. 1-2 (1940).
7 If a section heading is enacted as part o f an act o r as part o f a code, one may look to the heading
as an aid to the legislative intent. Know/ton v. Moore, 178 U.S. 41.77 (1849); Clawans v. Sheetz, 92 F.2d
517, 521 (D .C . Cir. 1937); Sutherland, Statutes and Statutory C onstruction §47.14 (1973 & Supp.
1978). Section 4008 is headed “T ransportation expenses,” suggesting that the prim ary purpose o f the
statute was to authorize paym ent for such expenses.
8 T he rem ainder o f the section provides:
U pon conviction by a consular co u rt o r court martial the prisoner shall be transported
from the court to the place o f confinem ent by agents o f the D epartm ent o f State, the
A rm y, N avy, o r A ir Force, as the case may be, the expense to be paid out o f the
T reasu ry o f the U nited States in the m anner provided by law.
724
the United States, and available therefor, shall be confined
. . . in some suitable prison in a convenient state or terri
tory to be designated by the Secretary of Interior, and
shall be transported and delivered to the warden or keeper o f
the prison by the m arshal. . . the reasonable actual expense
o f transportation, necessary subsistence and hire, and trans
portation o f guards and the marshal . . . to be paid by the
Secretary o f the Interior, out o f the judiciary fund. . . .
Act of May 12, 1864, § 1, 13 Stat. .74, 74-75 (emphasis added).9 This
section further provided that if, in the opinion of the Secretary, the
expense of transportation would exceed the cost of maintaining a pris
oner in a jail in the state of his conviction, then it would be lawful so to
confine him. This measure passed the Congress with no recorded floor
debate on its provisions. 64 Cong. Globe, 38th Cong., 1st Sess. 1684
(1864); 65 Cong. Globe 38th Cong., 1st Sess. 2207 (1864). The text of
the Act suggests that its purpose was to resolve the question where
federal prisoners should be incarcerated if there was no suitable peni
tentiary in the state or territory of conviction. The transportation provi
sion, authorizing transportation and delivery to a suitable prison, was
part of the resolution of this question.10
In 1876, responsibility for designating places of confinement was
transferred to the Attorney General. Act of July 12, 1876, 19 Stat. 88-
89. This Act also amended the Act of May 12, 1864, supra, by allowing
the Attorney General to change the place of imprisonment as neces
sary. The transportation provisions in the Act were not substantively
altered, however. They provided that prisoners “shall be transported
and delivered to the warden . . . by the marshal . . . the reasonable
actual expense of transportation, necessary subsistence, and hire and
transportation of guards and the marshal . . . to be paid by the A ttor
ney General, out of the judiciary fund.” Id. An 1891 statute authorizing
the establishment of three United States prisons also contained a section
providing that transportation of all United States prisoners and their
delivery to United States prisons shall be by the marshal and allowed
the same expenses as did the previous statutes.11 The language was
9 Prior to that time, statutes allow ed costs to U nited States M arshals for “transporting crim inals."
See A ct o f Feb. 26, 1853, 10 Stat. 165.
10 A similar statute, providing for the confinem ent o f juvenile offenders, and their transportation to
the place o f confinem ent by the marshal, w as passed in 1865. A ct o f M arch 3, 1865, § 1, 13 Stat. 538.
T his A ct provided:
Be it enacted . . . [t]hat juvenile offenders . . . shall be confined . . . in som e house of
refuge to be designated by the Secretary o f the Interior, and shall be transported and
delivered to the w arden o r keeper o f such house o f refuge by the marshal . . . and the
reasonable actual expense o f the transportation, necessary subsistence, and hire, and
transportation o f assistants and the marshal o r w arden, only shall be paid by the
S ecretary o f the Interior, out o f the judiciary fund.
11 A ct o f M arch 3, 1891, § 5, 26 Stat. 839, 839-40. Section 5 provided:
T hat the transportation o f all U nited States prisoners convicted o f crim es against the
laws o f the U nited States in any State, D istrict o r T errito ry , and sentenced to term s o f
C ontinued
725
again amended in 1901, but, again, the substance of the transportation
provisions was not changed. Act of March 3, 1901, 31 Stat. 1450-51.
The legislative history of these acts is brief and the transportation
provisions are not specifically addressed. 4 Cong. Rec. 2339, 4268
(1876); 22 Cong. Rec. 2925, 3563-64 (1891).
In 1930, Congress created the Bureau of Prisons and revised the laws
relating to federal prisoners. The law regarding transportation of pris
oners was amended to read substantially as it does today. As enacted at
that time, it provided:
All transportation of prisoners shall be by such agent or
agents of the Department of Justice as the Attorney Gen
eral or his authorized representative shall from time to
time nominate, the reasonable expense of transportation,
necessary subsistence, and hire and transportation of
guards and agent or agents to be paid by the Attorney
General from any appropriation to the Department of
Justice as he may direct. . . .
Act of May 14, 1930, Pub. L. No. 71-218, §8, 46 Stat. 325, 328. The
major change was that “all transportation” shall be by “an agent or
agents of the Department of Justice,” rather than that transportation
and delivery of prisoners to the place of confinement shall be by the
marshal. The legislative history of this 1930 modification does not
explain why these changes were made. The committee reports do
indicate that the act resulted from concern about the lack of proper
care and supervision of the increasing number of federal prisoners. H.R.
Rep. No. 106, 71st Cong., 2d Sess. 1 (1930). The few federal penitentia
ries were congested and “great masses” of federal prisoners were held
in local jails and workhouses, some of which were considered “unsani
tary and generally deplorable.” S. Rep. No. 533, 71st Cong., 2d Sess. 1,
2 (1930). Accordingly, these reports and the floor debates concentrate
on a program to provide adequate prison facilities and a proper organi
zation to administer the federal penal system. 72 Cong. Rec. 2157-58
(1930). The only reference to the bill’s transportation section in either
report is a reference found in an attached Attorney General’s analysis
of the bill. That analysis stated: “Section 8 of the proposed bill clarifies
how prisoners may be transported and the fund which is chargeable.”
H.R. Rep. No. 106, supra, at 3; S. Rep. No. 533, supra, at 3. There is no
indication, however, that Congress intended that section to extend
beyond its prior coverage of transportation and delivery to a place of
im prisonm ent in a penitentiary, and their delivery to the superintendent, w arden, or
keeper o f such U nited States prisons, shall be by the marshal o f the D istrict or
T e rrito ry w here such conviction m ay o ccu r, after the erection and com pletion o f said
prisons. T h at the actual expenses o f such marshal, including transportation and subsist
ence, hire, transportation and subsistence o f guards, and the transportation and subsist
ence o f the convict o r convicts, be paid, on the approval o f the A ttorney G enera) out
o f the ju d iciary fund.
726
confinement or that it intended to restrict the Attorney General’s broad
discretionary authority as to the care and custody of federal prisoners.
In light of this legislative history, it is not necessary to assume that
by providing that the expenses of all transportation were to be paid by
the Attorney General, the Congress intended that transportation re
quested by a state for purposes unrelated to the federal conviction or
incarceration be paid by the federal government. Nor is it necessary to
interpret the statement that prisoners “shall be transported” by agents
designated by the Attorney General as precluding the Attorney Gen
eral from promoting comity among sovereigns by exercising his author
ity to approve temporary transfers of custody. Rather, we believe it is
more reasonable to conclude that Congress intended § 4008 to provide
for transportation for federal purposes, such as transportation from the
court of conviction to the place of confinement as did the previous
statutes on which that section is based. The “clarification” mentioned in
the committee reports most likely referred to the authorization for any
agent designated by the Attorney General to transport prisoners rather
than the marshal exclusively.
In the 1948 codification of the United States Criminal Code, the
section was revised to its present form .12 Act of June 25, 1948, Pub. L.
No. 80-772, § 4008, 62 Stat. 683, 849. It was explained in a committee
report that the revisions were “ [m]inor changes in phraseology,” not
substantive changes. H.R. Rep. No. 304, 80th Cong., 1st Sess. A179
(1947). See Muniz v. Hoffman, 422 U.S. 454, 468-70 (1975). We con
clude, therefore, that § 4008 does not prohibit the Attorney General
from making arrangements for state law enforcement officers to assume
temporary custody of federal prisoners for the purpose of production in
a state court, pursuant to a writ of habeas corpus. Nor have we found
any other federal statute which prohibits such action.
We emphasize that this memorandum addresses only those circum
stances in which the Interstate Agreement on Detainers (IAD) is not
applicable.13 If the state is a party to the IAD, the procedures estab
lished under it may be exclusive. See United States ex rel. Escola v.
Groomes, 520 F.2d 830, 837-38 (3d Cir. 1975). Even if the state in
volved is not a party to the IAD, that agreement should be used as a
guide for all temporary transfers of custody, for state prosecution or
testimony. The party states of the IAD, which now include the federal
government and approximately 42 states, find that proper proceedings
on charges emanating from other jurisdictions cannot be had in the
absence of cooperative procedures, and declare that the purpose of the
12 In 1949, the third paragraph o f the section, dealing w ith prisoners convicted by a consular court
o r court martial, was am ended. A ct o f M ay 24, 1949, Pub. L. No. 81-72, § 4121, 63 Stat. 89, 98. These
am endm ents d o not affect the first and second paragraphs o f the section w ith w hich w e are concerned
here.
13 See note 1, supra.
in
IA D is to provide such procedures.14 The Department of Justice initi
ated and supported congressional adoption of the IAD because existing
procedures were inadequate. See H.R. Rep. No. 1018, 91st Cong., 2d
Sess. 3 (1970).
To avoid the damaging effects of detainers on prisoners, the IAD
guarantees certain procedural rights to prisoners. For example, prison
authorities are required to inform prisoners of all charges on the basis
of which detainers have been lodged. Prisoners may then request a trial
on the charges and if such trial does not commence within 180 days,
the charges must be dismissed with prejudice. A non-IAD agreement to
transfer custody to a state for purposes of prosecution should include
all legally available safeguards of both the prisoner’s and the govern
ment’s interests. A state, by refusing to become party to the IAD,
should not be able to avoid entirely the procedural requirements of it
while securing its benefits.15
III.
As you suggested in your request, additional legal questions may
arise from such temporary transfers of custody. You requested that we
address one such problem—escape from custody. The federal escape
statute, 18 U.S.C. § 751(a) (Supp. I 1977) provides:
W hoever escapes or attempts to escape from the cus
tody of the Attorney General or his authorized represent
ative, or from any institution or facility in which he is
confined by direction of the Attorney General, or from
any custody under or by virtue of any process issued
under the laws of the United States by any court, judge,
or commissioner, or from the custody of an officer or
employee of the United States pursuant to lawful arrest,
shall [be fined or imprisoned, or both].
The question raised here is whether escape from the temporary custody
of the state law enforcement officers would violate this statute.
This section was first enacted in 1930, when the Bureau of Prisons
was established. It read:
14 IA D , A rt. I, 18 U .S.C. A ppendix. W hen (he IA D was enacted by C ongress, 28 states w ere
parties to it. C ongress expected that the rem aining 22 states w ould becom e partners as soon as their
legislatures next met. 116 C ong. Rec. 38,841 (1970) (rem arks o f Sen. Hruska).
13 W e d o not believe that C ongress intended the IA D to be the exclusive means o f transfer o f
custody in all cases, thereby precluding transfer if the requesting state is not a party to it. Such an
interpretation is not supported by the language o f the A greem ent o r its legislative history and w ould
exacerbate, for non-party states, the problem s the A greem ent is directed tow ard am eliorating. It w ould
preclude any transfers to non-party states for purposes o f prosecution, for exam ple, thus leaving
prisoners w ith no w ay o f clearing detainers filed against them and precluding prosecutors from
bringing defendants to trial w ithin a reasonable time after charges are filed. This w ould result in
dismissal o f charges not tim ely prosecuted. See Dickey v. Florida, 398 U.S. 30 (1970).
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Any person properly committed to the custody of the
Attorney General or his authorized representative or who
is confined in any penal or correctional institution, pursu
ant to the direction of the Attorney General, who escapes
or attempts to escape therefrom shall be guilty of an
offense. . . .
Act of May 14, 1930, Pub. L. No. 71-218, §9, 46 Stat. 327. In the
Attorney General’s analysis of this Act prior to its enactment, he
explained that there was “no statutory penalty for escaping from the
custody of a Federal prison or Federal officers.” H.R. Rep. No. 106,
supra at 3; S. Rep. No. 533, supra at 3. Since 1930, the section has been
modified to clarify ambiguities and to broaden its scope. For example,
in 1935, Congress added the phrase “[any person] who is in custody by
virtue of any process issued under the laws of the United States by any
court, judge, or commissioner.” Act of Aug. 3, 1935, Pub. L. No. 74-
233, 49 Stat. 513, 513-14. In 1948, several amendments were made to
remove ambiguities and to improve phraseology. Act of June 25, 1948,
Pub. L. No. 80-772, § 751, 62 Stat. 683, 734. See H.R. Rep. No. 304,
80th Cong., 1st Sess. A67 (1947).
The term “custody,” as it is used in this statute, has been defined
very broadly. Although none of the cases deal with the specific situa
tion presented here, they are sufficiently analogous to support the
conclusion that such escape would violate §751. For example, in
United States v. Eaglin, 571 F.2d 1069 (9th Cir. 1977), the court con
cluded that a prisoner serving concurrent state and federal sentences in
a state penitentiary who failed to return after he was released on a
“social” pass violated §751. The court reasoned that 18 U.S.C.
§ 4082(b) provides that a federal sentence may be served in an institu
tion not maintained by the federal government and that “an escape
from a State institution is an escape from the custody of the Attorney
General if the prisoner has been confined there under the authority of
the Attorney General.” Id. at 1073. The Ninth Circuit in an earlier case
identified the three elements which must be proved to sustain a convic
tion under § 751: “(a) that there was a prior federal conviction; (b) that
there was an escape; and (c) that such escape was from a confinement
arising by virtue of the conviction.” Hardwick v. United States, 296
F.2d 24, 26 (9th Cir. 1961). The court found no basis to the defendant’s
argument that the prisoner be in the actual physical custody of a federal
official. Similarly, in McCullough v. United States, 369 F.2d 548, 550
(8th Cir. 1966), the court held that § 751 punishes “escape from custody
or from any facility in which the prisoner is confined by direction of
the Attorney General.” If the Attorney General, through the BOP,
enters into an agreement with state officials in which the state officials
agree to keep the prisoner safely confined, the prisoner would be
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confined by virtue of the federal conviction and by direction of the
Attorney General.
In United States v. Bailey, 585 F.2d 1087 (D.C. Cir. 1978), the court
upheld a conviction under § 751 of a federal prisoner who escaped from
custody after being transferred to a local jail pursuant to a writ of
habeas corpus ad testificandum. The court ruled:
[We decide] that a prisoner who has been committed to
the custody of the Attorney General by virtue of a con
viction is still in the custody of the Attorney General by
virtue of that conviction for the purposes of Section
751(a) when he is transferred pursuant to a writ of habeas
corpus ad testificandum and confined in an institution des
ignated by the Attorney General for the custody of fed
eral prisoners. Policy considerations support at least this
broad an interpretation of Section 751. The jurisdiction
from which a prisoner is brought pursuant to a writ of
habeas corpus has a significant interest in preventing the
prisoner’s escape from custody. This interest has been
recognized in an analogous situation by the drafters of the
Interstate Agreement on Detainers (IAD), who provided
that when a prisoner serving a sentence in one jurisdiction
is brought to another jurisdiction for trial on another
offense and escapes while in the receiving jurisdiction, he
may be prosecuted under the escape statute of the sending
jurisdiction.
585 F.2d at 1104 (footnote omitted). We conclude, therefore, that
escape from state law enforcement officers by a prisoner who is in
custody pursuant to a federal conviction and is confined under the
direction of the Attorney General violates § 751.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
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