Commentary. Imagine that the above transaction was witnessed by others and by a sequence of ill-fated events ‹ ill-fated for Henry ‹ Henry is charged with a violation and now faces the loss of his job. How might he best defend himself? Henry would not be able to deny that he did what he did or that he did it deliberately. He can argue, nonetheless, that he was justified in doing what he did. If he can show that his action was justifed, then he would be found not guilty.
A justification functions differently than an excuse in that it exculpates a person of all wrongdoing. What justification might Henry offer? Well, there is a defense that might, just might, work for Henry in this situation. It is not that well known. But if a defendant charged with a crime, can show that he acted out of necessity, he is not guilty of committing that crime. The Model Penal Code describes "necessity" as follows:
Section 3.02 (1) (a) of the Model Penal Code
Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that . . . the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.
So armed with this bit of information, what do you think? Is Henry guilty or not guilty of selling a drug without a prescription? Are you happy with the necessity defense? Does its availability to defendants square with your sense of justice?
One reason we might be slightly anxious about the availability of the necessity defense is that it encourages citizens to take "the law" into their own hands. This, of course, is also true of the plea of self-defense. It encourages citizens to make "quick," albeit "considered" judgments, about what to do in often pressing circumstances. Whatever else we may think about the value of allowing defendants to plead self-defense in situations that might warrant it, the opportunity to do so encourages a form of vigilantism and you may wish to give members of the community fewer rather than more opportunities to take the law their own hands. Still, if the "necessity" defense did not already have a place in our legal system, someone would very likely have had to invent it, if only because in certain, clearly circumscribed, circumstances justice appears to require it. Take the following for an example:
John and Alice Go Backpacking
John and Alice go backpacking in the White Mountains. They have planned a day trip near Mt. Washington, but they lose their way. Night falls; a blizzard traps them. They stumble upon a cabin in the woods. It belongs to Henry. They break in and are saved from the cold. They help themselves to baked beans and coffee. They build a fire to stay warm. After ten days they are found by a search party. Should Alice and John be found guilty of breaking and entering?
It seems "unfair" to prosecute John and Alice without taking into account the fact that they might not be alive today had they not acted as they did. Still, we are also likely to want a full accounting of the situation before we rush to judgment. Did John and Alice go out on the mountain without the proper equipment or without checking the weather forecast. In other words, did they in some way "court their own disaster." If they did, we might be less inclined to allow them to plead the "necessity" defense, no? We would like to know, too, whether what they claim they "had" to do in order to survive was "really necessary." Perhaps they could have continued on down the mountain to safety without much further ado. Perhaps weather conditions were not nearly as bad as they claim they were. In every "necessity" case we should, perhaps, always ask the question "Was it really necessary?" And defendants should be required to provide good, convincing answers to these questions.
We should also require, no doubt, that the conduct which defendants claim was necessary was proportional to the need. Once John and Alice broke in to Henry's cabin, they needed to have something to eat if they hoped to survive. In the above scenario, they help themselves to some baked beans and coffee which does not seem an unreasonable amount to consume to help get them through the ten days they had to wait to be resuced. But now imagine that they also help themselves to Henry's entire supply of French champagne, all 120 bottles of Chateau Napoleon de la Rochefoucauld from 1959, that extraordinary year where the bubbles were less than one thousandth of a millimeter across and which Henry bought at auction at Sotheby's for just under two million dollars (a steal when you think fo today's prices) the last remaining de la Rochefoucauld in existence. The baked beans were arguably necessary to their survival but surely not It would seem fair to say that the baked beans were necessary, but not the champagne. In any event, with these considerations in mind, what do you make of the next puzzler?
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