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Opinion No. 5219

August 30, 1977


Penalty for escape from a county jail.


'Penal or reformatory institution'

A county jail is a 'penal or reformatory institution' as that phrase is used in the statute punishing a person who escapes from a penal or reformatory institution. Therefore, a person who escapes from a county jail is subject to the penalties prescribed by the statute.

Honorable Stanley M. Powell

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion as to whether the term 'penal or reformatory institution' as it is used in 1927 PA 175, Sec. 7a as last amended by 1976 PA 184; MCLA 768.7a; MSA 28.1030(1) includes a county jail.

1927 PA 175, Sec. 7a provides in part:

'A person who is incarcerated in a penal or reformatory instutition in this state, or who escapes from that institution, and who commits a crime during the incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction thereof, be subject to sentence therefor in the manner provided by law for such crimes. The term of sentence imposed for the crime shall commence at the expiration of the term or terms of sentence which the person is serving or has become liable to serve in a penal or reformatory institution in this state.' (Emphasis added)

Under recent case interpretations of statutes which allow the trial court to determine the length and place of imprisonment for felony violations of a statute, sentencing judges have been allowed to incarcerate felony offenders for terms in county jails. People v Shirley Ann Johnson, ---- Mich App ----; ---- NW2d ---- (Court of Appeals No. 27170, released March 31, 1977). In Commonwealth v Hughes, 364 Mass 426, 305 NE2d 117, 120 (1973), a defendant incarcerated at a county jail had failed to return from a furlough and was charged and convicted under a statute which prohibited escape 'from any penal institution other than the Massachusetts Correctional Institution,' Massachusetts General Laws, c. 268, Sec. 16, as amended, St. 1955, c. 770, Sec. 82. The court held that the failure to return from a furlough constitutes an escape and affirmed the conviction. In so doing, the court recognized that terms used in statutes regulating this subject matter must, in absence of legislative definition, be interpreted to achiever their purpose, stating:

'Literally, G.L. c. 268 Sec. 16, did not make it a crime to remove oneself from the 'custody of the correctional facility.' The statute did, however, provide punishment for escape from the 'penal institution' itself. While most likely that language was originally designed for escapes from the physical confines of the institution, it can, and indeed should, see Matter of Haines, supra, be construed in light of deterring (1) the statute's over-all purpose of deterring and punishing prisoner escapes, and (2) the introduction of the concept of 'constructive custody' in G.L. c. 127, Sec. 90A. Importantly, c. 268, Sec. 16, did not define, and thereby limit, the term 'penal institution,' and thus the language is open to interpretive expansion suited to changes in the area of corrections which have come about since the time of its formulation.'

Other state courts have held that a county jail is a 'penal institution'. Ex Parte Wolfson, 30 Cal2d 20, 180 P2d 326, 330 (1947); People v James, 155 Cal2d 604, 318 P2d 175, 181 (1957); Lane v Tahash, 264 Minn 300, 119 NW2d 15, 19 (1962) cert den 375 US 840 (1963); State v Provencher, 128 Vt 586, 270 A2d 147, 149 (1970). Similarly, the Michigan legislature has defined the term 'penal institution' as it is used in the uniform rendition of prisoners as witnesses act, 1967 PA 161, Sec. 2(b), MCLA 780.112; MSA 28.1288, as follows:

"Penal institutions' includes a jail, prison, penitentiary, house of correction or other place of penal detention.'

It is therefore my opinion that the term 'penal or reformatory institution' includes a county jail as well as a state penal institution. Therefore, a person who escapes from a county jail is subject to the penalties prescribed by 1927 PA 175, Sec. 7a, supra.

Frank J. Kelley

Attorney General