Wisconsin Statutes
Wis. Stat. § 946.42 (2026)
Escape
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946.42(1)(a)1.a.a. Actual custody of an institution, including a juvenile correctional facility, as defined in s. 938.02 (10p), a secured residential care center for children and youth, as defined in s. 938.02 (15g), a juvenile detention facility, as defined in s. 938.02 (10r), a Type 2 residential care center for children and youth, as defined in s. 938.02 (19r), a facility used for the detention of persons detained under s. 980.04 (1), a facility specified in s. 980.065, or a juvenile portion of a county jail.
946.42(1)(a)1.c.c. Actual custody or authorized physical control of a probationer, parolee, or person on extended supervision by the department of corrections.
946.42(1)(a)1.f.f. Constructive custody of prisoners and juveniles subject to an order under s. 938.183, 938.34 (4d), (4h), or (4m), or 938.357 (4) or (5) (e) temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile, or otherwise.
946.42(1)(a)1.g.g. Custody of the sheriff of the county to which the prisoner was transferred after conviction.
946.42(1)(a)2.2. “Custody” does not include the constructive custody of a probationer, parolee, or person on extended supervision by the department of corrections or a probation, extended supervision, or parole agent or, subject to s. 938.533 (3) (a), the constructive custody of a person who has been released to community supervision or aftercare supervision under ch. 938.
946.42(1)(c)(c) “Legal arrest” includes without limitation an arrest pursuant to process fair on its face notwithstanding insubstantial irregularities and also includes taking a juvenile into custody under s. 938.19.
946.42(2)(2) A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class A misdemeanor:
946.42(2)(a)(a) Pursuant to a legal arrest for or lawfully charged with or convicted of a violation of a statutory traffic regulation, a statutory offense for which the penalty is a forfeiture or a municipal ordinance.
946.42(2)(b)(b) Lawfully taken into custody under s. 938.19 for a violation of or lawfully alleged or adjudged under ch. 938 to have violated a statutory traffic regulation, a statutory provision for which the penalty is a forfeiture or a municipal ordinance.
946.42(2m)(2m) A person who is in the custody of a probation, parole, or extended supervision agent, or a correctional officer, based on an allegation or a finding that the person violated the rules or conditions of probation, parole, or extended supervision and who intentionally escapes from custody is guilty of a Class H felony.
946.42(3)(3) A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class H felony:
946.42(3)(a)(a) Pursuant to a legal arrest for, lawfully charged with or convicted of or sentenced for a crime.
946.42(3)(b)(b) Lawfully taken into custody under s. 938.19 for or lawfully alleged or adjudged under ch. 938 to be delinquent on the basis of a violation of a criminal law.
946.42(3)(c)(c) Subject to a disposition under s. 938.34 (4d), (4h), or (4m), to a placement under s. 938.357 (4) or 938.533 (3) (a), or to community supervision or aftercare revocation under s. 938.357 (5) (e).
946.42(3)(e)(e) In custody under the circumstances described in sub. (2) and leaves the state to avoid apprehension. Leaving the state and failing to return is prima facie evidence of intent to avoid apprehension.
946.42(3m)(3m) A person who intentionally escapes from custody under any of the following circumstances is guilty of a Class F felony:
946.42(3m)(a)(a) While subject to a detention order under s. 980.04 (1) or a custody order under s. 980.04 (3).
946.42(3m)(b)(b) While subject to an order issued under s. 980.06 committing the person to custody of the department of health services, regardless of whether the person is placed in institutional care or on supervised release.
946.42(4)(4) If a person is convicted of an escape under this section, the maximum term of imprisonment for the escape may be increased by not more than 5 years if an individual who had custody of the person who escaped is injured during the course of the escape.
946.42 HistoryHistory: 1971 c. 164 s. 89; 1975 c. 39; 1977 c. 173, 312, 354, 418; 1985 a. 320; 1987 a. 27, 238, 352; 1987 a. 403 ss. 238, 239, 256; 1989 a. 31; 1993 a. 16, 377, 385, 491; 1995 a. 27 ss. 7233m, 7233p, 9126 (19); 1995 a. 77, 154, 352, 390; 1997 a. 35, 283; 1999 a. 9; 2001 a. 109; 2005 a. 344, 434; 2007 a. 20 s. 9121 (6) (a); 2007 a. 97, 226; 2013 a. 334; 2015 a. 55.
946.42 AnnotationThere is no denial of equal protection in the punishment under sub. (3) (d) [now sub. (3) (g)] of persons committed under the sex crimes law when persons civilly committed are not subject to the same statute. State v. Neutz, 69 Wis. 2d 292, 230 N.W.2d 806 (1975).
946.42 AnnotationA defendant’s escape under the work-release statute was an escape under sub. (3). Brown v. State, 73 Wis. 2d 703, 245 N.W.2d 670 (1976).
946.42 AnnotationThe sentence for an escape conviction may be consecutive to a sex crime commitment. State v. Kruse, 101 Wis. 2d 387, 305 N.W.2d 85 (1981).
946.42 AnnotationIt is not necessary to leave the physical boundaries of an institution to complete an act of escape. State v. Sugden, 143 Wis. 2d 728, 422 N.W.2d 624 (1988).
946.42 AnnotationUnder sub. (5) (b) [now sub. (1) (a)], an individual is “in custody” once freedom of movement is restricted; one lawfully arrested may not leave without permission. State v. Adams, 152 Wis. 2d 68, 447 N.W.2d 90 (Ct. App. 1989).
946.42 AnnotationA person can be “in custody” without being under “legal arrest,” but a person cannot be under “legal arrest” without being “in custody.” State v. Hoffman, 163 Wis. 2d 752, 472 N.W.2d 558 (Ct. App. 1991).
946.42 AnnotationA traffic regulation under sub. (2) (a) does not include any offense punishable as a crime. State v. Beasley, 165 Wis. 2d 97, 477 N.W.2d 57 (Ct. App. 1991).
946.42 AnnotationUpon conviction of a crime, a person is in custody regardless of physical control. Leaving without the court’s granting release is escape. State v. Scott, 191 Wis. 2d 146, 528 N.W.2d 46 (Ct. App. 1995).
946.42 AnnotationAs used in sub. (1) (a), “medical care” includes treatment at drug and alcohol rehabilitation centers. State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996), 96-0729.
946.42 AnnotationFailure to return to jail while on work release from incarceration for failure to pay a municipal forfeiture is escape under this section. State v. Smith, 214 Wis. 2d 541, 571 N.W.2d 472 (Ct. App. 1997), 97-0266.
946.42 AnnotationCustody under sub. (1) (a) does not include the custody of a parole or probation officer. State v. Zimmerman, 2001 WI App 238, 248 Wis. 2d 370, 635 N.W.2d 864, 00-3173.
946.42 AnnotationDetention at the Wisconsin Resource Center while awaiting evaluation and trial on a petition for commitment as a sexually violent person under ch. 980 does not subject the detainee to escape charges under this section. State ex rel. Thorson v. Schwarz, 2004 WI 96, 274 Wis. 2d 1, 681 N.W.2d 914, 02-3380.
946.42 AnnotationTestimony adduced at trial may establish the element of being sentenced for a crime, regardless of whether the jury actually sees the certified judgment of conviction. State v. Hughes, 2011 WI App 87, 334 Wis. 2d 445, 799 N.W.2d 504, 10-1322.
Notes of Decisions
Cited in 80
cases (3 in the last 5 years), 1965–2025 · leading case: State v. Zachary S. Friedlander, 2019 WI 22, 923 N.W.2d 849.
State v. Zachary S. Friedlander, 2019 WI 22, 923 N.W.2d 849. “In doing so, we overrule the court of appeals' decisions in Riske and Dentici. ¶3 Second, we must determine whether Friedlander is entitled to sentence credit for time he spent at liberty after being mistakenly released from prison without being transferred to serve his…”
State ex rel. Thorson v. Schwarz, 2004 WI 96, 681 N.W.2d 914. “Under the language of the statute, two conditions must be met in order for a defendant to receive sentence credit: (1) the defendant must have been" in custody" for the period in question; and (2) the period "in custody" must have been "in connection with the course of conduct…”
State v. Carter, 2010 WI 77, 785 N.W.2d 516. “" It drew upon the definition of "custody" in Wis. Stat. § 946.42 (1981) and then gave examples: The following situations would be within this definition of custody: 1.”
State v. Magnuson, 2000 WI 19, 606 N.W.2d 536. “However, numerous cases have interpreted the sentence credit statute and concluded that the plain meaning of custody under the statute corresponds to the definition of custody contained in the escape statute, Wis. Stat. § 946.42 . ¶ 14. In State v. Gilbert, 115 Wis.”
State v. Dentici, 2002 WI App 77, 643 N.W.2d 180. “This definition includes, but is not limited to, the definition of custody contained in the escape statute, Wis. Stat. § 946.42 (l)(a), see id., which states, in relevant part: "Custody" includes without limitation actual custody of an institution, including a secured…”
United States v. Woods, 576 F.3d 400 (7th Cir. 2009). “Wis. Stat. § 946.42 (3). We stated accurately enough, as far as it goes that "it is possible to violate Wis.”
State v. Griffith, 2000 WI 72, 613 N.W.2d 72. “In addition, if the passenger was never legally arrested, then he did not "escape" from *52 legal arrest in violation of Wis. Stat. § 946.42 (3)(a). [3] In sum, Griffith contends that because the officer lacked lawful authority to ask his name and date of birth, all of his…”
United States v. Templeton, 543 F.3d 378 (7th Cir. 2008). “The expert discovered that about 11% of those convicted of felony failure to report under Wis. Stat. § 946.425 , and 15% of those convicted of escape under Wis.”
State ex rel. Simpson v. Schwarz, 2002 WI App 7, 640 N.W.2d 527. “" In determining whether an individual would have been subject to an escape charge, we look both to the general escape statute, Wis. Stat. § 946.42 , as well as "other statutory *236 provisions in which the legislature has classified certain situations as restrictive and…”
State v. Sevelin, 554 N.W.2d 521 (Wis. Ct. App. 1996). “, was numbered § 946.42(5)(b). Certain changes, not relevant to this discussion, were made to the statute after Gilbert.”
State v. Swadley, 526 N.W.2d 778 (Wis. Ct. App. 1994). “, is the specific subsection of § 946.42 that the Wisconsin Criminal Jury Instructions Committee said was applicable to sentence credit eligibility.”
State v. Swanson, 475 N.W.2d 148 (Wis. 1991). “1 Section 946.42(3), Stats., provides, in part: A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class D felony: (a) Pursuant to a legal arrest for, lawfully charged with or convicted of or sentenced for a crime.”
Wis. Stat. § 946.42(1): 5 cases
State v. Cobb, 400 N.W.2d 9 (Wis. Ct. App. 1986).
Reginald D. v. State, 533 N.W.2d 181 (Wis. 1995).
State v. Thompson, 593 N.W.2d 875 (Wis. Ct. App. 1999).
State v. Sugden, 404 N.W.2d 126 (Wis. Ct. App. 1987).
State v. Allen J. Campbell, No. 2018AP000139-CR (Wis. Ct. App. Oct. 16, 2019).
Wis. Stat. § 946.42(1)(a): 7 cases
State v. Zachary S. Friedlander, 2019 WI 22, 923 N.W.2d 849. “In doing so, we overrule the court of appeals' decisions in Riske and Dentici. ¶3 Second, we must determine whether Friedlander is entitled to sentence credit for time he spent at liberty after being mistakenly released from prison without being transferred to serve his…”
State v. Dentici, 2002 WI App 77, 643 N.W.2d 180. “This definition includes, but is not limited to, the definition of custody contained in the escape statute, Wis. Stat. § 946.42 (l)(a), see id., which states, in relevant part: "Custody" includes without limitation actual custody of an institution, including a secured…”
State ex rel. Thorson v. Schwarz, 2004 WI 96, 681 N.W.2d 914. “Under the language of the statute, two conditions must be met in order for a defendant to receive sentence credit: (1) the defendant must have been" in custody" for the period in question; and (2) the period "in custody" must have been "in connection with the course of conduct…”
State v. Abbott, 558 N.W.2d 927 (Wis. Ct. App. 1996).
State v. Collett, 558 N.W.2d 642 (Wis. Ct. App. 1996).
Wis. Stat. § 946.42(2): 3 cases
State v. Adams, 447 N.W.2d 90 (Wis. Ct. App. 1989).
State v. Cobb, 400 N.W.2d 9 (Wis. Ct. App. 1986).
State v. Smith, 571 N.W.2d 472 (Wis. Ct. App. 1997).
Wis. Stat. § 946.42(2)(a): 3 cases
State v. Adams, 447 N.W.2d 90 (Wis. Ct. App. 1989).
State v. Smith, 571 N.W.2d 472 (Wis. Ct. App. 1997).
State v. Beasley, 477 N.W.2d 57 (Wis. Ct. App. 1991).
Wis. Stat. § 946.42(2)(c): 1 case
State v. Grobstick, 546 N.W.2d 187 (Wis. Ct. App. 1996).
Wis. Stat. § 946.42(3): 12 cases
State v. Killebrew, 340 N.W.2d 470 (Wis. 1983).
State ex rel. Thorson v. Schwarz, 2004 WI 96, 681 N.W.2d 914. “Under the language of the statute, two conditions must be met in order for a defendant to receive sentence credit: (1) the defendant must have been" in custody" for the period in question; and (2) the period "in custody" must have been "in connection with the course of conduct…”
State v. Swanson, 475 N.W.2d 148 (Wis. 1991). “1 Section 946.42(3), Stats., provides, in part: A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class D felony: (a) Pursuant to a legal arrest for, lawfully charged with or convicted of or sentenced for a crime.”
State v. Cobb, 400 N.W.2d 9 (Wis. Ct. App. 1986).
State v. Sugden, 422 N.W.2d 624 (Wis. 1988).
Wis. Stat. § 946.42(3)(a): 20 cases
State v. Griffith, 2000 WI 72, 613 N.W.2d 72. “In addition, if the passenger was never legally arrested, then he did not "escape" from *52 legal arrest in violation of Wis. Stat. § 946.42 (3)(a). [3] In sum, Griffith contends that because the officer lacked lawful authority to ask his name and date of birth, all of his…”
State v. Swanson, 475 N.W.2d 148 (Wis. 1991). “1 Section 946.42(3), Stats., provides, in part: A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class D felony: (a) Pursuant to a legal arrest for, lawfully charged with or convicted of or sentenced for a crime.”
State v. Scott, 528 N.W.2d 46 (Wis. Ct. App. 1995).
State v. Sugden, 422 N.W.2d 624 (Wis. 1988).
State v. Grobstick, 546 N.W.2d 187 (Wis. Ct. App. 1996).
Wis. Stat. § 946.42(3)(f): 1 case
State v. Hoffman, 472 N.W.2d 558 (Wis. Ct. App. 1991).
Wis. Stat. § 946.42(3)(g): 1 case
State ex rel. Thorson v. Schwarz, 2004 WI 96, 681 N.W.2d 914. “Under the language of the statute, two conditions must be met in order for a defendant to receive sentence credit: (1) the defendant must have been" in custody" for the period in question; and (2) the period "in custody" must have been "in connection with the course of conduct…”
Wis. Stat. § 946.42(4): 6 cases
State v. Kruzycki, 531 N.W.2d 429 (Wis. Ct. App. 1995).
State v. Hungerford, 251 N.W.2d 9 (Wis. 1977).
State v. Kruse, 305 N.W.2d 85 (Wis. 1981).
State v. Ledford, 339 N.W.2d 361 (Wis. Ct. App. 1983).
State v. Schultz, 429 N.W.2d 79 (Wis. Ct. App. 1988).
Wis. Stat. § 946.42(4)(a): 1 case
State v. Thomas F. Ball, II, 944 N.W.2d 353 (Wis. Ct. App. 2020).
Wis. Stat. § 946.42(5)(a): 3 cases
State v. Sugden, 422 N.W.2d 624 (Wis. 1988).
State v. Adams, 447 N.W.2d 90 (Wis. Ct. App. 1989).
State v. Sugden, 404 N.W.2d 126 (Wis. Ct. App. 1987).
Wis. Stat. § 946.42(5)(b): 6 cases
State v. Cobb, 400 N.W.2d 9 (Wis. Ct. App. 1986).
State v. Sugden, 404 N.W.2d 126 (Wis. Ct. App. 1987).
State v. Adams, 447 N.W.2d 90 (Wis. Ct. App. 1989).
State v. Hoffman, 472 N.W.2d 558 (Wis. Ct. App. 1991).
State v. Sevelin, 554 N.W.2d 521 (Wis. Ct. App. 1996). “, was numbered § 946.42(5)(b). Certain changes, not relevant to this discussion, were made to the statute after Gilbert.”
Wis. Stat. § 946.42(l)(a): 12 cases
State ex rel. Thorson v. Schwarz, 2004 WI 96, 681 N.W.2d 914. “Under the language of the statute, two conditions must be met in order for a defendant to receive sentence credit: (1) the defendant must have been" in custody" for the period in question; and (2) the period "in custody" must have been "in connection with the course of conduct…”
State v. Sevelin, 554 N.W.2d 521 (Wis. Ct. App. 1996). “, was numbered § 946.42(5)(b). Certain changes, not relevant to this discussion, were made to the statute after Gilbert.”
State v. Swadley, 526 N.W.2d 778 (Wis. Ct. App. 1994). “, is the specific subsection of § 946.42 that the Wisconsin Criminal Jury Instructions Committee said was applicable to sentence credit eligibility.”
State v. Magnuson, 2000 WI 19, 606 N.W.2d 536. “However, numerous cases have interpreted the sentence credit statute and concluded that the plain meaning of custody under the statute corresponds to the definition of custody contained in the escape statute, Wis. Stat. § 946.42 . ¶ 14. In State v. Gilbert, 115 Wis.”
State ex rel. Simpson v. Schwarz, 2002 WI App 7, 640 N.W.2d 527. “" In determining whether an individual would have been subject to an escape charge, we look both to the general escape statute, Wis. Stat. § 946.42 , as well as "other statutory *236 provisions in which the legislature has classified certain situations as restrictive and…”
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