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The Defense of Necessity in Criminal Law: the Right to Choose the Lesser Evil

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The Defense of Necessity in Criminal Law: the Right to Choose the Lesser Evil Journal of Criminal Law and Criminology Volume 65 | Issue 3 Article 2 1975 The efeD nse of Necessity in Criminal Law: The Right to Choose the Lesser Evil Edward B. Arnolds Norman F. Garland Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Edward B. Arnolds, Norman F. Garland, The efeD nse of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289 (1974) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JouAL.os CnaNeAL LAW & CRnNOLOGY Vol. 65, No. 3 Copyright C 1974 by Northwestern University School of Law Printed in US.A. THE DEFENSE OF NECESSITY IN CRIMINAL LAW: THE RIGHT TO CHOOSE THE LESSER EVIL EDWARD B. ARNOLDS* AND NORMAN F. GARLANDt Introduction the Final Report they rejected this definition of the defense in favor of partial codification. Criminal defendants who intentionally and Section 601 (1) of the Final Report thus provides: "Except knowingly violate a criminal statute may never- as otherwise provided, justification or excuse theless claim that they have committed no crime. under this chapter is a defense." 4 These defendants make this assertion even though This article will discuss the issue of codifying they admit committing the act and possessing the the defense of necessity. It will initially review the mental element proscribed by the law. For ex- policy reasons and elements of that defense. It ample, the Supreme Court of Rhode Island held will then analyze two alternatives to a plea of that a member of the United States Naval Re- necessity, jury nullification and prosecutorial dis- serve Force, on duty as a despatch driver, was not cretion, to test their adequacy where a defendant amenable to the speed laws of the state while on makes a non-frivolous claim that he or she com- his way to deliver a message, at the command of mitted the otherwise criminal act to preserve some his superior officer, which that officer deemed higher value. Finally, the article will discuss the urgent.' The decision rested on the principal of effect codifying the defense will have on the right public necessity, a principle which the court stated of the jury to determine the issue of relative values. is "without application to cases which show a failure to comply with our laws and ordinances I. Definitions and Policy Factors when no military necessity exists." 2 This holding is an example of the application of At the outset it is necessary to distinguish the the defense of necessity. The defendant admitted defense of necessity from other related defenses intentionally exceeding the speed limit knowing to avoid confusion over labels. Glanville Williams the act was illegal. But under the pressure of cir- defined necessity in the manner used in this article: "By necessity is meant the assertion that conduct cumstances the act was justified by "necessity." promotes some value higher than the value of The National Commission on Reform of Fed- literal compliance with the law." 5 eral Criminal Laws considered whether or not to Courts sometimes use the term justification as a codify the defense of necessity in the Proposed synonym for necessity.' justification, however, is New Federal Criminal Code. The Commissioners a generic term which may comprise besides neces- initially adopted the defense as it is usually de- sity, the defense of self-defense, defense of others, fined by the courts and legislatures.' However, in defense of property, or execution of official duty.7 * J. D., Northwestern University, 1973. To justify does not mean to excuse; justification t J. D., Northwestern University, 1964; L.L.M., is a circumstance which actually exists and which Georgetown University, 1965, presently Associate Pro- makes harmful conduct fessor of Law at Northwestern University. proper and noncriminal, ' State v. Burton, 41 R.I. 303, 103 A. 962 (1918). while excuse is a circumstance which excuses the 2Id. at 305, 103 A. at 963. actor from criminal liability even though the actor 3 Conduct which Avoids Greater Harm. Conduct is justified if it is necessary and appropriate to avoid CRfNAL ConE, § 608 (1970) [hereinafter cited as harm clearly greater than the harm which might STuoy4 DRAFT]. result from such conduct and the situation devel- FINAL REPORT OF THE NATIONAL COMMSSION ON oped through no fault of the actor. The necessity REORM or FEDERAL C wmMNALLAWS § 601 (1) (1971) and justifiability of such conduct may not rest upon [hereinafter cited as FINAL REPORT]. considerations pertaining only to the morality and 5 G. Wnxmtws, THE CRMNAL LAW § 229 (2nd ed. advisability of the penal statute defining the of- 1970) [hereinafter cited as Wnuxs, CRIMINAL LAW]. fense, either in its general application or with re- 6 See, e.g., United States v. Simpson, 460 F.2d 515 spect to its application to a particular class of (9th Cir. 1972). cases arising thereunder. 7 FINAL REPORT §§ 606-608, .supranote 4. See also UNITED STATES COiMUSSION ON REFORM OF FEDERAL IV. LAFAvE & A. ScOTT, HANDBOOK ON CRMINAL LAW CRIMINAL LAWS, STUDY DRAFT OF A NEW FEDERAL §§ 47-57 (1972). ARNOLDS AND GARLAND [Vol. 65 was technically not justified in doing what he One explanation of the defense of duress is the did." Examples of excuses are mistake and duress.9 free will theory: a person is not guilty of an offense The rationale behind the excuse defenses was by reason of conduct performed under pressure so stated by Mr. Justice Holmes: "Detached reflec- great as to deprive an ordinary person of his free tion cannot be expected in the presence of an up- will under the circumstances. 15 Other commenta- lifted knife." 10 The rationale behind the justifica- tors contend that the rationale for the defense of tion defense is that one should not be punished duress is deterrence: there is no likely deterrence where his act of breaking the law prevents more when the punishment threatened is less motivating evil than it causes."' The difference is the same as than the harm which the actor would suffer if he between being forgivably wrong and being right does not commit the "crime." 16 Under either the- or between being pardoned and being praised. ory courts limit the defense of duress to fear of Neither pardon, mitigation nor excuse can sub- serious bodily injury or death and make the de- stitute for justification for where a person has fense personal to the person threatened.17 It makes acted meritoriously (justification) he has no need no sense, however, to put those restrictions on the of forgiveness. defense of necessity, since necessity is a justifica- Courts also sometimes confuse the justification tion and not an excuse."8 defense of necessity with the excuse defense of 2 [hereinafter cited as Newman and Weitzer]; Hersey and duress. If one commits an otherwise illegal act Avins, Compulsion as a Defense in Criminal Cases, 11 owing to the unlawful threats of another, the de- OKLA. L. REv. 544 (1917); Hitchler, Duress as a Defense fense is duress, sometimes called compulsion, fear, in Criminal Cases, 4 VA. L. REv. 519 (1917) [hereinafter cited as Hitchler]. or coercion (though coercion technically applies " See Newman and Weitzer, supra note 14. only to the defense by a wife that she was forced 16 See Hitchler, supra note 14, at 521-22. 17See generally Newman and Weitzer, supra note 14. by her husband). 3 The general rule is that a well- But see Rex v. Steane, [19471 K.B. 997; R. I. Recreation founded fear of death or serious bodily injury is a 14 Center v. Aetna Casualty and Surety Co., 177 F.2d defense to any criminal charge except murder. 603, 606 (1st Cir. 1949) (Magruder, J., concurring); STEIN, CoAM NT ON JUSTIFICATION AND ExcusE, 1 8See FINAL REPORT § 601, supra note 4. WORXING PAPERS OF THE NATIONAL ComMssION ON 9FINAL REPORT §§ 610-11, supra note 4. REF Rm OF FEmERAL CRiMNAL LAWS at 273-79 (sug- 10Brown v.United States, 256 U.S. 335 (1921). gesting threats to third persons should also be a de- " SToy DRAFT § 608, supra note 3. fense). " See, e.g., United States v. Cullen, 454 F.2d 386, 391 18The confusion of duress and necessity has resulted n.13 (7th Cir. 1971) ("The rule is the same whether the in an improper limitation being put on the defense of label is 'compulsion,' 'coercion,' or 'necessity'..."). necessity. See, e.g., United States v. Cullen, 454 F.2d 1 See Perkins, The Doctrine of Coercion, 19 IowA L. 386, 391, n.13 (7th Cir. 1971): REv. 507 (1934); Note, The Doctrine of Martial Coer- The general rule on 'compulsion' was stated, citing cion, 29 TEIPE L.Q. 190 (1956). numerous state cases, in Shannon v. United States, 14R. I. Recreation Center v. Aetna Casualty and 76 F.2d 490, 493 (10th Cir. 1935): Surety Co., 177 F.2d 603 (1st Cir. 1949); Shannon v. 'Coercion which will excuse the commission of a United States, 76 F.2d 490 (10th Cir. 1935); Arp v. criminal act must be immediate, and of such nature State, 97 Ala. 5, 12 So. 301 (1893); State v. Sappienza, as to induce a well-grounded apprehension of 84 Ohio 63,95 N.E. 381 (1911); Contra, Regina v. Tyler, death or serious bodily injury if the act is not done.
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