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In the last five years, appellate courts have responded sympathetically to the claims of prisoners who have escaped to avoid the threat of physical violence and homosexual rape. Lovercamp began the trend in 1974. Today the reports are replete with reversals directing trial courts to hear evidence bearing on the conditions that prompted the escape.

The courts have moved so quickly into this new field that they have had little chance to refine the underlying rationale for admitting the evidence. Appellate opinions, as well as several commentators, have sought to squeeze the new issue into one of three received doctrinal categories: (1) duress, (2) necessity, and (3) the intent required for escape. The important preliminary question, however, is not which doctrinal label we should use, but whether the principle requiring consideration of the evidence is one of justification or of excuse. Does the threat of a homosexual rape render it right and proper for the defendant to escape from prison (a principle of justification)? Or is it rather that the impending violence negates the defendant's culpability for unlawful, unjustified escape (a principle of excuse)? This basic question influences the contours of the defense. Among the controversial questions that might be affected are (1) the relevance of the defendant's using force to effectuate his escape, and (2) the requirement that the defendant surrender after a successful escape.

My thesis is that the impending violence generates at most an excuse and not a justification. The threatened homosexual rape bears on the culpability of the prisoner in unlawfully escaping, not on the question whether his escaping is lawful and proper. If we could achieve a consensus on this basic rationale for the defense, we could then consider whether the label of "duress" or "necessity" appropriately describes the defendant's claim. Neither the term "duress" nor "necessity" is linked irretrievably to a theory of justification or excuse. Some people maintain, incorrectly in my view, that duress is a justification. The general trend, however, is to treat duress as an excuse. Similarly, there is considerable authority for the view that necessity functions as an excuse. Yet many writers refer to the issue of necessity, particularly the claim of lesser evils, as a justification. The confusion about the inner logic of duress and necessity renders it imperative that we first clarify the underlying principle of evidence bearing on intolerable prison conditions. Choosing the proper doctrinal label is a secondary matter.


Criminal Law | Law


This article was originally published in UCLA Law Review.

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