DEFENSES OF NECESSITY AND CHOICE OF LESSER EVILS
By
Betty Dintelman
December, 2002
Keywords: criminal defenses, necessity, choice of lesser evils, lesser evils principle
Many people know something about the basics of criminal defenses. They range from such well known ones as self-defense, to the outrageousness of modern day excuses, such as the Twinkie defense. Few people will know of the defenses of necessity and choice of lesser evils however, and they are not highly publicized or commonly used. They belong to the family of justifications, and their history and use prove long and interesting. A necessary examination includes a brief history, current uses, and some interesting cases using these defenses.
History
The history of this unique defense dates back to the days of English common law, and even earlier. Bracton, a thirteenth century jurist said that what “is not otherwise lawful, necessity makes lawful”, pioneering the concept of necessity, (Samaha, p.259). He was followed by such great names as Bacon, Coke, and Hale in sixteenth and seventeenth century England. On the other hand, Sir James Stephen, a legal commentator of the time, worried that the defense could be used by judges any way they chose due to its vagueness, (Samaha, p. 260). Sir Walter Scott explained that the rule seemed to supersede the law itself, due to the fact that “necessity creates the law…whatever is reasonable and just in such circumstances is likewise legal.”, (Arnold and Garland, p. 291). An early case that can be studied is dated in 1551, that of Reninger v. Fagossa, (Arnold and Garland, p. 291). The issue addressed there was that of speaking words that would normally be unlawful, in order to avoid a greater evil. Other examples used in England included committing a crime in order to save a life or put out a fire, prisoners could escape from a jail that was burning, and contagious patients could be brought outdoors in order to transport them to a physician, (Arnold and Garland, p. 291). In 1912, a man burned a patch of heather to avoid burning his own house down. Using the defense of necessity he was acquitted, (Samaha, p. 260). In 1844, the famous case of the Queen v. Dudley and Stephens was decided, (Samaha, p. 260). Dudley, Stephens, and a cabin boy named Brooks were stranded in a lifeboat when their ship, the Mignonette, was destroyed in a storm, (Arnold and Garland, p. 295). After eight days with no food, Dudley and Stephens said a prayer and killed the weaker Brooks. They were rescued four days later and sentenced to murder after their trial. Lord Coleridge, the judge in that particular trial, rejected their defense of necessity on the grounds that it was the taking of an innocent life. He did express his hope that Queen Victoria, who later reduced their sentence to six months, would pardon the two, however, (Samaha, pg. 260-261). Lord Coleridge was reported as haven taken to account an earlier case, that of United States v. Holmes, into consideration in his decision. The case, which took place in 1841, approximately forty years earlier, involved a similar situation of the shipwreck of the American William Brown, (Prassel, p. 217). Fourteen passengers were thrown overboard during the storm to lighten the load of the lifeboat, but none of the crew lost their lives, (Prassel, p.213). When one of the crew was tried for manslaughter later, he tried using the defense of necessity. The judge, one Baldwin, instructed the jury in the differences between the defense and such mitigating circumstances as he felt were present, and the crew member was sentenced to six months imprisonment, (Arnold and Garland, pg. 295).
Another famous case taking place on U.S. soil was State v. Wooton, better known as the Bisbee Deportation case. In 1917, in Cochise County, Arizona, the Industrial Workers of America called a strike of all copper miners. Two months later, the sheriff and a group of one thousand men rounded up more than one thousand of the I.W.W. members and deported them to New Mexico. When one of the men, one H. Wooton, was later charged because the sheriff and his posse had had no right to deport the men, he asserted the defense of necessity. Judge Pattee, presiding at the time, allowed Wooton to present evidence that the I.W.W. was an anarchistic group with the motives to uproot capitalism, specifically in Cochise County. The jury deliberated for fifteen minutes before finding Wooton not guilty, (Arnolds and Garland, pp. 292-294).
Takng place against the backdrop of World War II, the 1944 case of Korematsu v. United States passed down the decision holding that it was legal to exclude all persons of Japanese descent from their homes and communities by military fiat power, and that "the power to protect must be commensurate with the threatened danger", and apparently, the threat of the Japanese during World War II was enough to warrant the actions taken, (Arnolds and Garland, p. 292).
The defense soon proved limitations, however. In the 1958 case of Butterfield v. Texas, it was ruled that drunk driving could not be excused, even when a seriously injured person has no other way to get to the hospital, (Arnolds and Garland, p. 292).
Theory
The defense of necessity is best explained by example. Some of these include destroying property to prevent the spread of a fire, (such as with a case in common law England), violating the speed limit to get a dying person to the hospital, throwing cargo overboard to save a ship and its crew during a storm, dispensing prescription medications without a prescription in an emergency case, or breaking and entering into a mountain cabin during a blizzard to keep from freezing to death, (http://faculty.ncwc.edu…2002). It is also necessary that we distinguish it from other related, though very different justifications. Duress, for instance, acts on the same related concept of having no other choice but to commit an unlawful act, but with duress, (and similarly, compulsion), the act is committed because of the threats of another person, which have to cause fear of death or serious bodily injury to qualify, (Arnolds and Garland, p. 290). The Model Penal Code, in recent revisions, has acted towards untangling the similarities of the family of justifications, and making clear the distinction between duress and coercion, (as the two terms are used interchangeably), and necessity, which is based on the broader lesser evils principle, (Kadish, p. 238). Prassel, in his book Criminal Law, Justice, and Society also points out that the defendant using such a defense uses it under the guise of having had no mens rea, or the culpability necessary to commit the crime, (Prassel, p. 213).
The defense itself consists of varying elements from state to state, but generally includes the necessary showings “that the defendant did not intentionally bring about the circumstance which caused the unlawful act, that the defendant could not accomplish the same objective using a less offensive, (i.e. “more legal”), alternative available to the defendant; and that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it, “ (http://www.norml.org…2002). U.S. District Judge Roger Vinson listed four elements to be proven, including the fact that the defendant, when faced with the choice of evils, chose the lesser evil, that the defendant must have reasonably foreseen a causal relationship between his or her act and the harm to be avoided, that the defendant did indeed act to prevent that harm, and that there were no legal alternatives to committing the lesser evil, (http://www.trosch.org…2002). Joel Samaha identifies the choosing of the lesser evil as the “linchpin” of the entire defense, and includes the Model Penal Code’s required three elements in his analysis. They include identifying the evils, ranking the evils, and choosing the lesser evil to avoid the greater evil, (Samaha, p. 261). In identifying the priorities, the Model Penal Code states that life, safety, and health should trump the value of property, and that judges, jurors, and legislators should be charged with ranking the evils presented, (Samaha, p. 262). In such a process, we can identify two determinations that must be made, (Arnolds and Garland, p.294). One, the factual determination of the situation at hand, involving the situation itself and the defendant's options in that situation. The second is a value determination, of whether or not the defendant made the right value judgment with his actions to commit an unlawful act. In doing so, it is the job of the judge and jury to examine cases and apply the choice of lesser evils principle as they see fit. To do so, the law at hand must contain the flexibility necessary to adapt to new and unique circumstances, as well as lend a guiding hand to doing so, (Ashworth, p. 156). In many cases, the burden is placed on the defendant to prove these elements, once the issue is raised, (Arnolds and Garland, p. 294). If the defense itself isn’t enough to void the offense, it can act as a mitigating circumstance, and lessen the punishment, (Samaha, p. 262).
An interesting juxtapositions of the defense are seen when the claim to economic necessity is made. A classic example would be stealing a loaf of bread to keep from starvation, (http://faculty.ncwc.edu...2002). Such a case is not as relevant today, with many opportunities affording the basic necessities of life through charities and the government, but in Sir William Blackstone's England it was a very pertinent one. Blackstone refused any adaptation of the defense to such situations, and left it up to the state to pardon such offenders, (http://faculty.ncwc.edu...2002). It is assumed however, that with the right circumstances surrounding the offense, the defense could be accepted, (Prassel, p. 213).
Current Controversies
One of the largest controversies currently arising concerning this defense is that of medical necessity, specifically pertaining to marijuana usage and abortions. It is not a recent development, however. In 1939, in the case of Rex v. Bourne in England, the King’s Bench handed down the decision that it was legal and acceptable to perform an abortion in order to save the mother’s life, (Arnolds and Garland, pp. 291-292). Many scholars and members of the judicial community have lamented the fact that there is no specific medical necessity defense outlined in any laws or codes, and that court cases dealing with such manners have created exceptions to the over-arching rule, (Ashworth, p. 155). The House of Lords made steps towards that when, in 1993, they addressed the case of Airedale NHS Trust v. Bland. There they held that what is “in the best interests of the patient should be determined by reference to whether the doctor’s decision was ‘in accordance with a practice accepted at the time by a responsible body of medical opinion’ “, (Ashworth, p. 255). In essence, the message sent said that a doctor’s actions to save a life could be deemed necessary, if those actions did not seem unreasonable to the medical community of the time. With no complete rulings set forth in any body of law however, the medical side to this defense remains in development.
The issue of marijuana usage in a medical realm is also attracting attention. NORML, the National Organization for the Reform of Marijuana Laws, has devoted some time and attention to the possibility of using the necessity defense in some situations. At there website, a section deals with this. The defendant raising the issue must first believe that using marijuana will lessen or terminate a serious medical harm posed towards them. This belief must be a reasonable one. Also, the severity of the harm avoided must be great enough, at least in a judge and juror’s eyes, to substantiate breaking the criminal code. Limitations in some states, such as Idaho, severely limit the applicability of the defense, however. It is in Idaho that the compelling circumstances surrounding the use must not have been brought about by the defendant, and there must be no other legal alternative to treatment with marijuana, (http://www.norml.org...2002). In the most recent documented case I was able to find, State v. Owenby, the consensus of frowning upon the use of the lesser evils principles was not changed, (Samaha, p. 262). Owenby, a Vietnam veteran, had sought traditional treatment methods for his diagnose of post traumatic stress disorder. He claimed that the only thing that alleviated his symptoms was marijuana, and that he should be allowed to present a defense of medical necessity. The state of Oregon ruled otherwise, and did not allow him to present his defense because of and earlier Supreme Court case of State v. Clowes, in which the Court ruled that the choice-of-evils defense could not be brought forth when it would be “inconsistent with some other provision of law”, (Samaha, p.263). The legislature, the court of Oregon stated, had a preemptive right to make choices concerning value judgments, and with the case of marijuana usage they had made the decision that it was not to be a lesser evil, (Samaha, p. 263). The state of this defense and current developments may be apt to change, however, as continuing medical research may change the entire landscape of this use of the defense, (http://www.norml.org...2002).
Conclusion
It has often been said that the law is a living, breathing thing, capable of constancy, and constant changes, all at the same time. And while the applicability of the defense of necessity and the choice of lesser evils is not common in many cases, it is obvious that where there are curious minds, there are ways to present this defense, perhaps successfully. The recent developments in the marijuana usage issue, and the controversy surrounding abortions performed, are just two examples of instances in which the defense has lived, breathed, and changed to adapt to the times. It will be an interesting thing to watch the development of these overriding issues, and compare them with the ancient beginnings of the defense.
References
Author unknown. Defenses to Crime. Retrieved November 19th, 2002. Available: http://faculty.ncwc.edu/toconnor/293/293lect06.htm
Author unknown. Medical Necessity Defense. Retrieved November 19th, 2002. NORML: Working to reform marijuana laws. Available: http://www.norml.org/index.cfm?Group_ID=3410
Arnolds, Edward V., and Garland, Norman M. (1974). The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil. The Journal of Criminal Law and Criminology. Boston: Northwestern University School of Law
Ashworth, Andrew. (1999). Principles of Criminal Law: Third Edition. New York: Oxford University Press
Graybiel, Ginny. (1994). Title unavailable. Retrieved November 18th, 2002. Pensacola News Journal. Available: http://www.trosch.org/wri/nec-defth.htm
Kadish, Sanford. (1987). Blame and Punishment: Essays in Criminal Law. New York: Macmillian Publishing Company
Prassel, Frank. (1979). Criminal Law, Justice, and Society. Santa Monica: Goodyear Publishing Company
Samaha, Joel. (2002). Criminal Law: Seventh Edition. Stamford: Wadsworth/Thomson Learning Inc.
NECESSITY
THE GENERAL RULE
Necessity arises where a defendant is forced by circumstances to transgress the criminal law. The generally accepted position is that necessity cannot be a defence to a criminal charge. The leading case is:
R v Dudley and Stephens (1884) 14 QBD 273. The defendants and a cabin boy were cast adrift in a boat following a shipwreck. The defendants agreed that as the cabin boy was already weak, and looked likely to die soon, they would kill him and eat him for as long as they could, in the hope that they would be rescued before they themselves died of starvation. A few days after the killing they were rescued and then charged with murder. The judges of the Queen's Bench Division held that the defendants were guilty of murder in killing the cabin boy and stated that their obvious necessity was no defence. The defendants were sentenced to death, but this was commuted to six months' imprisonment.
Lord Coleridge CJ, having referred to Sir Matthew Hale's assertion (The History of the Pleas of the Crown, 1736) that a man was not to be acquitted of theft of food on account of his extreme hunger, doubted that the defence of necessity could ever be extended to a defendant who killed another to save his own life. After referring to the Christian aspect of actually giving up one's own life to save others, rather than taking another's life to save one's own, he referred to the impossibility of choosing between the value of one person's life and another's:
"Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In [the present case] the weakest, the youngest, the most unresisting life was chosen. Was it more necessary to kill him than one of the grown men? The answer be, No."
Until recently it was commonly thought that a general defence of necessity did not exist in English law. Thus:
· In Buckoke v GLC [1975] Ch 655, Lord Denning indicated obiter that the driver of a fire engine was compelled to stop at a red traffic light even if he saw 200 yards down the road a blazing house with a man at an upstairs window in extreme peril and the man's life would be lost by waiting. Lord Denning accepted that the driver would commit an offence against the Road Traffic Regulations if he crossed the red light. (Note: there now exist statutory defences for fire-engines, police and ambulances.)
· And in the civil case of Southwark LBC v Williams [1971] Ch 734, where defendants in dire need of housing accommodation entered empty houses owned by the local authority, it was held that the defence of necessity did not apply. Lord Denning MR justified the rule on the ground that:
"… if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass … . If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry."
And Edmund-Davies LJ held:
"[T]he law regards with deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear - necessity can very easily become simply a mask for anarchy."
Whilst there has been no general recognition of necessity as a defence, it has been permitted to operate under various guises, on a piecemeal basis, for example, in medical cases:
· In R v Bourne [1939] 1 KB 687, the defendant gynaecologist performed an abortion on a young girl who had been raped. He had formed the opinion that she could die if permitted to give birth, and the operation was performed in a public hospital, with the consent of her parents. The defendant was found not guilty of "unlawfully procuring a miscarriage" following a direction from the trial judge to the jury that a defendant did not act "unlawfully" for the purposes of s58 Offences Against the Person Act 1861, where he acted in good faith, in the exercise of his clinical judgement. (This is now within the Abortion Act 1967.)
However, necessity may never be a defence to a charge of murder. In R v Howe [1987] AC 417, the House of Lords affirmed Dudley and Stephens (1884).
THE PRAGMATIC APPROACH
(a) The practical solution perhaps lies in the way in which the discretion to prosecute is exercised. Lord Denning, in Buckoke v GLC [1971], stated obiter that the driver of an emergency service vehicle who drove through a red traffic signal when responding to an emergency call, whilst he would not be able to rely on the defence of necessity, "should not be prosecuted. He should be congratulated".
(b) In other cases the circumstances can be taken into account, as mitigating factors, when considering what sentence would be appropriate (as recommended by the Law Commission, 1977).
Taken from http://www.lawteacher.net/Criminal/General%20Defences/Necessity.htm