At first blush the average person would immediately reject a defendant’s claim that he is entitled to escape from incarceration, especially if he makes no assertion therein that at the time of his escape he was unlawfully confined. However, after having studied the history of the crime of escape, it can be concluded that the defense of necessity to the crime of escape should, under certain limited conditions, be available to one who is accused of escaping from lawful confinement.
The crime of escape, as we know it today, is of ancient vintage. The English scholar Holdsworth informs us that by the end of the medieval period, such offenses as rescous, (the violent taking away of a man who was under arrest and setting him at liberty), escape, and prison breach came into being. Holdsworth, II A History of English Law, commencing at page 278. The principle that a defense of necessity justifies an escape was observed by the Common Law scholar Edmund Plowden in 1307, after the following English statute was enacted:
Concerning prisoners which break prison, our Lord the King willeth and commandeth, That none from henceforth that breaketh Prison shall have Judgment of Life or Member for breaking of prison only, except the cause for which he was taken and imprisoned did require such Judgment, if he had been convicted thereupon according to the Law and Custom of the Realm, albeit in Times past it hath been ruled otherwise.” Anno. I Edw. II Stat. 2.
Plowden, using nothing more than common sense as authority, interpreted the above statute not to be violated where a prisoner has escaped from prison because the prison was on fire — “for he is not to be hanged because he would not stay to be burnt.”
In 1869, the United States Supreme Court, in United States v. Kirby, 7 Wall. 482, 487, 19 L.Ed. 278 (1869), applied Plowden’s thinking to a situation where delivery of the United States mail was temporarily obstructed or retarded by the arrest of the carrier upon an indictment for murder, and held that the defendant could not be convicted for committing that offense.
In the pre-eminent federal authority on the use of the necessity defense to a charge of escape, the United States Supreme Court held that “[a]n escapee who flees from a jail that is in the process of burning to the ground may well be entitled to an instruction on duress or necessity, ‘for he is not to be hanged because he would not stay to be burnt.’” United States v. Bailey, 444 U.S. 394, 415(1980), quoting, United States v. Kirby, 7 Wall. 482, 487, 19 L.Ed. 278(1869). Importantly, the majority in Bailey never questioned the existence of the defense of necessity in relation to an escape charge, but unlike Justice Blackmun’s dissent emphasized the importance of surrender as an element of the defense of necessity to an escape charge. Bailey, 444 U.S. at 415 n.11.
The Bailey Court noted that the circuit court had erred in holding that an escapee did not act with the requisite intent if he escaped in order to avoid oppressive conditions in prison. The Court held, rather, that the prosecution sustains its burden of proof on intent when it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission and that if a defendant contends that circumstances within the prison compelled him to leave, he must raise these matters through the defense of duress or necessity.
Bailey thus requires a defendant to admit she violated the escape statute and then offer necessity as a justification. The Court went on to point out that before an escapee is entitled to present evidence to the jury about the conditions in prison which caused him to escape, “he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.” Bailey, 444 U.S. at 415. The bona fide effort to report to proper authorities limits the application of the necessity defense to a charge of escape. People v. Lovercamp, 43 Cal. App. 3d 823, 831, 118 Cal. Rptr. 110(Ca. App. 1974). “Thus, the defense becomes meaningless to one who would use it as an excuse to depart from lawful custody and thereafter go his merry way relieved of any responsibility for his unseemingly departure.” Id.
The necessity defense promotes the notion that although the harm caused should be avoided, the “harm is outweighed by the need to avoid an even greater harm and to further a greater societal interest.” 1 Paul H. Robinson, Criminal Law Defenses 24(a) (1984). See, 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law 5.4(a) (1986) [hereinafter Substantive Criminal Law] (explaining that “one who, under the pressure of circumstances, commits what would otherwise be a crime may be justified by “necessity’ in doing as he did and so not be guilty of the crime in question”).
This rationale for the necessity defense has been adopted in Wisconsin. State v. Brown, 107 Wis.2d 44, 53, 318 N.W.2d 370(1982)(defense of legal justification available in civil traffic case where State itself, through action of law enforcement officer, caused traffic violation); Moes v. State, 91 Wis.2d 756, 768, 284 N.W.2d 66(1979); State v. Olsen, 99 Wis.2d 572, 575-76, 299 N.W.2d 632(Ct. App. 1980). Wisconsin Statute § 939.45 makes necessity, duress, self-defense and defense of others privileged conduct. Though the federal due process clause does not require the state to disprove beyond reasonable doubt a statutory privilege like necessity, this burden is imposed upon the state as a matter of Wisconsin law. Moes v. State, 91 Wis.2d at 768. Thus the effect of a successful assertion of a necessity defense to a criminal charge (except for homicide) is a not guilty verdict. Platz, The Criminal Code, 1956 Wis. L. Rev. 350, 366.
Defining what is a sufficient amount of evidence to bring an issue to the jury has depended on both the specific facts of the crime and of the defense. But it is clear that the defendant need not prove his case: he need only meet a minimum standard of evidence. Bailey, 444 U.S. at 415. Thus, the question of necessity is completely for a jury to decide, not a judge, unless the evidence is completely inadequate. This principle was announced in Brisbee Deportation Case, State v. Wooton, Crim. No. 2065(Cochise Cty., Ariz., Sept. 13, 1919)(holding a judge can exclude evidence of necessity only if the evidence is completely inadequate or could in no way establish a defense of necessity). See, Arnolds and Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289, 292-94(1974); Comment, The Law of Necessity as Applied in the Brisbee Deportation Case, 3 Ariz. L. Rev. 264(1963). A “defendant is entitled to have the jury consider any theory of defense which is supported by law and has some foundation in the evidence even though such evidence may be weak, insufficient or of doubtful credibility.” United States v. Brown, 785 F.2d 587, 590 (7th Cir. 1986) (quoting United States v. Patrick, 542 F.2d 381, 386 (7th Cir. 1976)); United States v. Lehman, 468 F.2d 93, 108 (7th Cir. 1972), cert. denied.
There is some difference of opinion as to the elements of the defense of necessity. There is no Wisconsin decision specifying the elements of a necessity defense to the charge of escape. Other jurisdictions have held that relevant noncontrolling preconditions in establishing a claim of necessity to a charge of escape include the following: (1) the presence of imminent danger of such a nature as to induce apprehension of death or great bodily harm if the escape is not committed, (2) there is no time to complain to authorities or complaints would be futile, (3) no opportunity to resort to courts, (4) force or violence has not been used towards prison/jail personnel, and (5) prisoner reports to authorities when he has attained safety from immediate threat. See, People v. Lovercamp, 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110(Ca. App. 1974); People v. Unger, 66 Ill. 2d 333, 362 N.E.2d 319(1977). The absence of one or more of these conditions does not automatically preclude a claim of necessity. Unger, 66 Ill. 2d at 342-43; People v. Pelate, 49 Ill. App. 3d 11, 17, 363 N.E.2d 860(1977). Since Bailey, however, courts have held that a “bona fide effort to surrender or return to custody as soon as the claimed *** necessity had lost its coercive force” was an “indispensable element of such an offer.” People v. Scott, 194 Ill. App. 3d 634, 551 N.E.2d 288, 292(1990), quoting, Bailey, 444 U.S. at 412-13. Courts have set forth a similar formula for duress: (1) threatening conduct which creates in the mind of a reasonable person a fear of death or serious bodily harm; (2) the conduct in fact caused such fear in the mind of the defendant; (3) the fear or duress was operating upon the mind of the defendant at the time of the alleged act; and (4) the defendant committed the act to avoid the threatened harm. People v. Luther, 394 Mich. 619, 232 N.W. 2d 184, 187(1975). Wisconsin Criminal Jury Instruction 792 sets forth the elements of necessity as follows:The State must prove by evidence which satisfies you beyond a reasonable doubt that the defendant was not acting lawfully under the defense of necessity. The law allows the defendant to act under the defense of necessity only if the pressure of natural physical forces caused the defendant to believe that his act was the only means of preventing [imminent public disaster] [imminent death or great bodily harm to himself (or to others)] and which pressure caused him to act as he did. In addition, the defendant’s beliefs must have been reasonable. A belief may be reasonable even though mistaken. In determining whether the defendant’s beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense. The reasonableness of the defendant’s beliefs must be determined from the standpoint of the defendant at the time of his acts and not from the viewpoint of the jury now. If you are satisfied beyond a reasonable doubt that [SUMMARIZE THE ELEMENTS OF THE CRIME BY REFERRING TO THE RELEVANT INSTRUCTION, THEN CONTINUE WITH THE FOLLOWING] and that the defendant did not act lawfully under the defense of necessity, you should find the defendant guilty. If you are not so satisfied, you must find the defendant not guilty. In State v. Anthuber, 201 Wis.2d 512, 518, 549 N.W.2d 477 (Ct. App. 1996), the court cited an earlier decision as identifying four elements to the necessity defense: (1) the defendant must have acted under pressure from natural physical forces (2) the defendant’s act was necessary to prevent imminent public disaster, or death, or great bodily harm; (3) the defendant had no alternative means of preventing the harm; and (4) the defendant’s beliefs were reasonable, citing, State v. Olsen, supra, at 577-78.Anthuber was not a case dealing with an escapee who claimed a necessity defense. In a footnote, the Anthuber decision noted that Wis JI-Criminal 792 takes a different approach and stated: “While we find no substantive difference in the two tests, we nonetheless believe that the four-part test is simpler to understand and discuss.” Anthuber, 201 Wis.2d at 518-19, at note 1. This footnote by the Anthuber court is incorrect since Wisconsin Statute § 939.45 does not require, as suggested by the “four elements” approach, that the defendant’s act actually be necessary to prevent the harm and that there actually be no alternative means. The words of the statute indicate a reasonable belief as to each aspect is sufficient. The “reasonableness of belief” has long been a cornerstone of the necessity defense. United States v. Ashton, 24 F. Cas. 873 (C. C.D. Mass. 1834)(actual unseaworthiness of ship not necessary where crew had reasonable belief in unseaworthiness of ship)
Coercion is closely related to the defense of necessity. The distinction between the two defenses is that with coercion the outside force, which influences the actor, has its source in the actions of other human beings. Necessity involves natural physical forces beyond the actor’s control that force him to choose committing the crime as the lesser of two evils. Bailey, 444 U.S. at 409-10. Examples of natural physical forces include storms, fires, privations, and drowning. Olsen, 99 Wis.2d at 576. The Court of Appeals in Olsen found that the actions of private industry in shipping nuclear fuel did not constitute a natural physical force due to government control of the shipping. Id. In deciding if a force is a natural physical force, one examines if the activity is one that is beyond human control. Id.
In juxtaposing the Court of Appeals decision in Olsen with the Wisconsin Supreme Court decision in Brown one identifies an important trend in modern cases: the blurring of the distinction between coercion an necessity. Bailey, 444 U.S. at 410. Rather than focusing on whether a natural physical force exists, modern courts examine the social policies underlying the two defenses. Id. That is, did the defendant reasonably believe that his criminal action “was necessary to avoid a harm more serious than that sought to be prevented by the statute defining the offense.” Bailey, 444 U.S. at 410, quoting, United States v. Bailey, 585 F.2d 1087, 1097-98(D.C. Cir. 1978)
For instance, the Wisconsin Supreme Court in Brown indicated that the defendant was arguing that his speeding was justified since it occurred under circumstances of coercion or necessity. Brown, 107 Wis.2d at 48. Brown contains no discussion of whether the law enforcement officer’s actions in causing the defendant to speed were natural physical forces. Nor does Brown attempt to specify which defense the facts of the case support. Instead, the Court simply held:
Where the violation of the speeding law is caused by the state itself through the actions of a law enforcement officer, we conclude that the public interest in allowing the violator to claim a defense outweighs the public interest in ease of prosecution….[T]he actor may claim the defense of legal justification if the conduct of a law enforcement officer causes the actor reasonably to believe that violating the law is the only means of preventing bodily harm to the actor or another and causes the actor to violate the law. Brown, 107 Wis. 2d at 55-56. Emphasis added.
The modern Bailey-Brown approach of examining if a legal justification exists is the better reasoned position. This is because the natural physical forces distinction “resulted from the historical accident that most lesser evils cases have in fact involved the forces of nature….The more common modern approach is to drop the natural force limitation on [the] lesser evils [defense].” 2 Paul H. Robinson, Criminal Law Defenses 45, 55(1984).
Another important element of the necessity defense is imminence. Whether a threat is imminent is tested by the objective standard of the reasonable person. Olsen, 99 Wis.2d at 578. Thus,
“The term ‘imminent’ does not describe the proximity of the danger by any rule of mechanical measurement…The law does not fix the distance of time between the justifiable defense and the mischief, for all cases, by the clock or calendar. The chronological part of the doctrine of defense, like the rest of it, is a matter of reasonableness; and reasonableness depends on the circumstances. Aldrich v. Wright, 53 N.H. 398, 401-03(1873).
Courts have explained that “future” or “later” or possible and “imminent” are opposites. United States v. Tokash, 282 F.3rd 962, 970(7th Cir. 2002); People v. Ballard, 59 Ill. 2d 580, 322 N.E.2d 473, 475(Ill. 1975)(“vague impression that someone might get hurt” did not establish necessity defense). An imminent threat is not debatable. Olsen, 99 Wis.2d at 578 n.5. There can be no reasonable option other than violating the law. Tokash, 282 F.3rd at 971.
Based on the cases reviewed, “imminence” depends on two things: specific facts of a case and the specific attitude of the court. For instance, in People v. Richards, 269 Cal. App.2d 768, 75 Cal. Rptr. 597(1969) a defendant was inflicted with acts of sodomy and received a death threat before the afternoon of the escape. He had also exhausted remedies short of escape. The Richards court held the defendant was not entitled to present to the jury a necessity defense since death threat was not imminent. Richards, 269 Cal. App.2d at 778. However, in People v. Harmon, 53 Mich. App. 482, 220 N.W.2d 212(1974) an escapee was threatened with sodomy but did not report threats to guards for fear of reprisals. The next night the defendant escaped. The Harmon court held that the necessity defense should go to the jury since imminence is “to be decided by the trier of fact taking into consideration all the surrounding circumstances, including defendant’s opportunity and ability to avoid the feared harm.” Harmon, 220 N.W.2d at 214.