Daily Independent (Ashland, KY)

February 9, 2013

Creative decision

Appeals court ruling expands definition of a ‘violent crime’

The Independent

ASHLAND — Benji Antonio Stout never touched another person when he scaled a fence in 2005, ducked through a hole and sprinted away from the Lincoln County Detention Center. But the U.S. District Court of Appeals ruled Tuesday that Stout’s escape properly amounted to a “crime of violence” and upheld the longer prison term he received for another crime Stout committed.

How can a crime in which no one was touched and violence was not even threatened be considered a violent crime? Well, according to Judge Edmund Sargus, the escape amounted to a crime of violence because “it is natural to infer a significant risk that an inmate will resort to violence rather than being recaptured.”

A divided appellate court cited the escape in upholding Stout’s 2010 conviction and 12-month federal prison sentence for possession of body armor by a person convicted of a violent crime.

Sargus, joined by Judge R. Guy Cole, found 8 percent of escaped inmates commit violent offenses against guards in the process of getting away. That prospect renders the escape a violent crime, Sargus concluded.

“Our holding today is not based on a broad speculation as to the future events that might occur after the crime,” Sargus wrote. “Rather, it is based on the substantial risk that offenders who choose to escape from secured settings will engage in physical violence during the course of the escape.”

Judge Bernice Bouie Donald dissented, citing notable fictional escapes in “The Count of Monte Cristo” and “The Shawshank Redemption” and pointing out the getaways by the characters Edmond Dantes and Andy Dufresne involved acts of violence, when all Stout did was scale a fence and run through a hole he didn’t make.

“Something is missing here — perhaps it is common sense,” Donald wrote.

Stout has an extensive criminal history involving both state and federal convictions, but none of his crimes had involved violence. On Aug, 4, 2009, police in Winchester stopped Stout and found four pieces of body armor in his car. After being indicted, Stout challenged the violent crime designation, but a judge rejected his arguments.

Stout pleaded guilty in 2010 in federal court in Lexington to the body armor charge in exchange for several drug-related counts being dismissed by prosecutors. A judge sentenced him to a year in federal prison. Stout appealed the violent crime designation.

Sargus wrote that escape from a secure jail doesn’t involve a risk of “simply accidental injury,” but a likelihood of the inmate using violence to get away while being detected and confronted.

“In other terms, given the serious consequences that result from capture, it is likely that many offenders will not simply give up their escape if they encounter security,” Sargus wrote.

In  his dissent, Donald said when Stout left the jail, “his crime was complete.” He added that the U.S. Supreme Court ruled in 2010 that a violent crime must involve “a substantial degree of force.”

“Keeping this in mind, it is not farfetched to say that climbing a wall or crawling through an open hole does not ordinarily involve a ‘substantial degree of force’,” Donald wrote.

Given his criminal history, it is difficult to have much sympathy for Stout, but based simply what he did  — and not on speculation of what he might of done if given the opportunity — the escape was not a crime of violence. From our viewpoint, Judges Sargus and Cole erred in their ruling; Judge Donald got it right.