LOUISVILLE, Ky. (AP) — When Benji Antonio Stout scaled a fence, ducked through a hole and sprinted away from the Lincoln County Detention Center, he didn't touch another person.
Even though Stout neither threatened nor attacked anyone, that 2005 escape amounts 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," Judge Edmund Sargus wrote Tuesday for the U.S. 6th Circuit Court of Appeals.
A divided appellate court cited the escape in upholding Stout's 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 that 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 that 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.
Police in Winchester stopped Stout, who has a criminal history involving both state and federal convictions, on Aug. 4, 2009 and found four pieces of body armor in his car. After being indicted, Stout challenged the violence 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.
When Stout left the jail, "his crime was complete," Donald wrote. Donald noted 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.
The statistic cited by Sargus and Cole is not persuasive, Donald wrote, because it only accounts for "a small percentage" of inmates who use violence to escape a secure facility and doesn't cite the number of inmates who simply walk away from a jail or halfway house.
"Here are the realities of our decision today," Donald wrote. "For climbing a wall and exiting through an open hole in a fence as an unarmed inmate-turned-escapee, Benji Stout is deemed to have committed a crime of violence."
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