2008 edition - Fort Sam Houston - U.S. Army

20. Article 96—Releasing prisoner without
proper authority
a. Text of statute.
Any person subject to this chapter who, without
proper authority, releases any prisoner committed
to his charge, or who through neglect or
design suffers any such prisoner to escape, shall
b e p u n i s h e d a s a c o u r t - m a r t i a l m a y d i r e c t ,
whether or not the prisoner was committed in
strict compliance with law.
b. Elements.
(1) Releasing a prisoner without proper authority.
(a) That a certain prisoner was committed to
the charge of the accused; and
(b) That the accused released the prisoner without
proper authority.
(2) Suffering a prisoner to escape through neglect.
(a) That a certain prisoner was committed to
the charge of the accused;
(b) That the prisoner escaped;
(c) That the accused did not take such care to
prevent the escape as a reasonably careful person,
acting in the capacity in which the accused was
acting, would have taken in the same or similar
circumstances; and
(d) That the escape was the proximate result of
the neglect.
(3) Suffering a prisoner to escape through design.
(a) That a certain prisoner was committed to
the charge of the accused;
(b) That the design of the accused was to suffer
the escape of that prisoner; and
(c) That the prisoner escaped as a result of the
carrying out of the design of the accused.
c. Explanation.
(1) Releasing a prisoner without proper authority.
(a) Prisoner. “Prisoner” includes a civilian or
military person who has been confined.
(b) Release. The release of a prisoner is removal
of restraint by the custodian rather than by
the prisoner.
(c) Authority to release. See R.C.M. 305(g) as
to who may release pretrial prisoners. Normally, the
l o w e s t a u t h o r i t y c o m p e t e n t t o o r d e r r e l e a s e o f a
20.e.(3)
post-trial prisoner is the commander who convened
the court-martial which sentenced the prisoner or the
officer exercising general court-martial jurisdiction
over the prisoner. See also R.C.M. 1101.
(d) Committed. Once a prisoner has been conf
i n e d , t h e p r i s o n e r h a s b e e n “ c o m m i t t e d ” i n t h e
sense of Article 96, and only a competent authority
(see subparagraph (c)) may order release, regardless
of failure to follow procedures prescribed by the
code, this Manual, or other law.
(2) Suffering a prisoner to escape through neglect.
(a) Suffer. “Suffer” means to allow or permit;
not to forbid or hinder.
(b) Neglect. “Neglect” is a relative term. It is
t h e a b s e n c e o f c o n d u c t w h i c h w o u l d h a v e b e e n
taken by a reasonably careful person in the same or
similar circumstances.
( c ) E s c a p e . E s c a p e i s d e f i n e d i n p a r a g r a p h
19c(4)(c).
(d) Status of prisoner after escape not a defense.
After escape, the fact that a prisoner returns,
i s c a p t u r e d , k i l l e d , o r o t h e r w i s e d i e s i s n o t a
defense.
(3) Suffering a prisoner to escape through design.
An escape is suffered through design when it is
intended. Such intent may be inferred from conduct
so wantonly devoid of care that the only reasonable
inference which may be drawn is that the escape
was contemplated as a probable result.
d. Lesser included offenses.
(1) Releasing a prisoner without proper authority.
Article 80—attempts
(2) Suffering a prisoner to escape through neglect.
None
(3) Suffering a prisoner to escape through design.
(a) Article 96—suffering a prisoner to escape
through neglect
(b) Article 80—attempts
e. Maximum punishment.
(1) Releasing a prisoner without proper authority.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 2 years.
(2) Suffering a prisoner to escape through neglect.
Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
(3) Suffering a prisoner to escape through design.
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