Transportation of Federal Prisoners to State Courts Pursuant to Writs of Habeas Corpus

• Court: Department of Justice Office of Legal Counsel
• Decided: July 25, 1980
• Status: Published

Opinion

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).

728 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 729 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