Professor Andreas Teuber/USEM 27B

What is the necessity defense exactly and how and under what circumstances might it work? Say there is a fire in a maximum security prison, and the prisoners, threatened by death, break out of their cells. Surely they are not guilty of the crime of escape? Here's a situation where most of us would agree that necessity could be a defense and that the prisoners who broke out of their cells "out of necessity" ought not to be convicted for escape. And what do you make of the following cases:

1. CVS To the Rescue
John goes into his local CVS to buy some Dorito chips for Alice. While he is standing at the counter, he suffers a heart-attack. Unless he receives an immediate dose of nitroglycerine, he will die. John staggers back to the pharmacy, plunks a ten dollar bill down on the counter, and asks for the drug. Henry, the pharmacist on duty, sells the drug to John without a prescription because there is no time to find a doctor. Is Henry guilty of selling a drug without a prescription? What if the FDA had not yet approved the drug, if in fact there are significant risks associated with administering it which only a doctor can fully appreciate? What if John simply says, "Give me something quick, I'm having a heart attack," and Henry sells him the drug, but there is another drug that Henry could have sold to John for the same price but one with far fewer risks, but Henry did not know the difference because he does not have a medical degree?

2. Woods v. State, Texas, 1938
Texas, like many other states, has a statute that requires anyone in a car accident stop and wait for the police to arrive at the scene. Elmer Woods and Alice are off to the movies. Two blocks from the cinema Elmer collides with another car. Alice suffers several cuts and bruises which, in Elmer's opinion, require immediate attention. He drives away from the accident to the emergency room of the local hospital. Later Elmer is charged with violating the hit-and-run statute since he did not wait, as the statute requires, for the police to arrive. He left the scene of the accident. Should Elmer be found guilty, if, in his opinion, Alice was injured to such an extent that it was necessary that she receive immediate treatment?

3. State v. Jackson, New Hampshire, 1902
New Hampshire has a statute making school attendance compulsory. Parents who keep their children out of school commit a criminal offense. Samuel Jackson's daughter was in very poor health: he feared for her life since she needed medical attention throughout the day and night and, as a result, he did not dare send her to school. In fact, he never applied to the school board for a special exemption for his child or a dispensation. Did Samuel Jackson act criminally? The court appealed to the necessity defense: "A parent cannot be required to imperil the life of his child by delays incident to an application to the school board, before he can lawfully do what is apparently reasonably necessary for [his child's] protection."

4. The William Gray, 1810
In 1810 the United States Congress imposed an embargo on the West Indies. While sailing from Alexandria to Boston, a heavy storm forced the William Gray to put in at the harbor of Antigua in the West Indies. The West Indian Governor ordered the captain to sell his cargo and only then allowed him to leave. Was the ship guilty of a criminal violation of the embargo statute? The court noted that the embargo statute did not contain an explicit exception for ships caught in stormy weather. Nonetheless the ship's action was subject to "the principle of necessity" as recognized "from time immemorial," and the captain, whose decision it was to put in to Antigua to ride out the storm, was acquittted. What if the captain of the William Gray knew before he left Alexandria that the weather would be foul and that if caught in a storm, his ship would likely have to put in at the West Indies?

The Model Penal Code, from which many states draw the language they use in wording their statutes, defines the necessity defense as follows:

"Conduct that the actor believes to be necessary to avoid 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."

The Code appears to give defendants a fairly wide latitude. Which of the five cases above would you defend on grounds of necessity? Then consider the following:

John: The Trolley Driver
John is the driver of a trolley, whose brakes have failed. On the track ahead of him are five people; the banks are so steep that they will not be able to get off the track in time. The track has a spur leading off to the right, and John can turn the trolley onto it. Unfortunately, there is one person on the right hand track. John can turn the trolley, killing the one; or he can refrain from turning the trolley. John elects to turn the trolley onto the right hand track, killing the one person.

Would you defend John on grounds of necessity? Why? If not, why not? In its general form, as stated in the Model Penal Code, the principle appears to involve the making of some sort of a calculation. "Harm to be avoided" has to be calculated and added up and then set against the "[harm] sought to be prevented by the law defining the offense charged." The principle itself, however, gives little guidance as to how the balance is to be struck or for that matter much guidance as to what weights to assign in the first place. John's trolley dilemma would appear to be fairly uncomplicated in this regard. It would appear to involve the weighing of the loss of five lives against the loss of just one. Is this the choice, are these the alternatives? It would appear that the loss of five lives is worse (would be worse) than the loss of only one life.

But is this the best way to couch the choice? Isn't there another difference between the two alternatives, a difference that might make a difference, that is not captured by describing the alternatives as a chocie between the number of lives lost? If John chooses, for instance, the latter alternative over the former, he actually kills another human being, whereas if he does not turn the trolley he is letting five die. There may be only a small difference in this situation between killing and letting die, but generally we take it to be a difference that makes some moral difference. Does the moral difference between killing and letting die prompt you to give different weights to the alternatives John faces, to assign, for instance, a greater weight to the harm John would cause by turning the trolley onto the right hand track? Does the moral difference in this case between killing and letting die make enough of a difference to effect how, in applying the necessity principle, the balance of relative harms would be (ought to be) struck? The moral difference between killing and letting die would appear to make just this sort of a difference in the following (hypothetical) case:

John: Amazon Adventurer
John, on a botany expedition in the most remote regions of the Brazilian jungle, stumbles into a clearing where he finds two men with their guns trained on a group of ten South American villagers. The Captain, or the man who appears to be in charge, turns to John and announces that "Pedro here" is about to shoot "all the villagers," but as the result of John's unexpected arrival on the "scene," he, the Captain, has had a sudden bout of compassion and if John would be willing to take Pedro's gun and kill one of the villagers, he, the Captain, would allow the other nine villagers to go free. If, however, John refuses to accept the Captain's offer, "Pedro here will shoot them all." John, his mind racing, entertains several "Indiana Jones" fantasies (with himself as Indiana Jones), among them, the idea that he might appear to agree to the Captain's offer, take the gun from Pedro, and then turn it on Pedro and the Captain, back away into the jungle with all ten villagers at his side, and escape to a clearing down river where a small twin-engine Cesna is waiting and fly all the villagers and himself to Rio de Janeiro and freedom. But it is quite evident from the situation that if John were to try anything of the sort, his "heroics" will result not only in the deaths of all ten villagers but his own as well. What should John do? With great reluctance and a heavy heart, John elects to accept the Captain's offer. John shoots one of the villagers and the Captain releases all the others who promptly disappear into the jungle. With a somewhat inappropriate, i. e., all too cheery, farewell, the Captain and Pedro head off in the opposite direction. John slumps down. The body of the villager lies a few yards away. John wonders what he has done. Just then a helicopter swoops into view and lands in the middle of the clearing. Several Brazilian police emerge, their weapons drawn, and surround John. John is now in a small holding cell somewhere along the upper Amazon. He has made a phone call to Alice, letting her know that he has been charged with murder.

If you were John's attorney, would you argue his case on grounds of necessity? Why not? Wouldn't Cardozo's "No Rule of Human Jettison" apply equally well here? And if John had refused the Captain's offer, would he have been subsequently accused of any crime? What crime would that have been? What do our laws presently encourage someone in John's position to do? If John refused the Captain's offer, would you find him guilty of causing the deaths of all ten villagers? Why not?

Perhaps John should not have gone on this botanical expedition after all; perhaps he should have stayed home with Alice or gone on that cruise with her to the Bahamas. Then, at least, he would not be in such a pickle. Some other pickle perhaps, but, at least, not this pickle. What's the difference between the two situations in which John finds himself as a trolley driver and now as a botanist? Why is necessity more likely to succeed as a defense in the former case than in the latter? Or perhaps it ain't so. What do you think? Before making up your mind, you may wish to discuss this case with your fellow Justices and to see if you can reach any kind of a consensus.

The necessity defense clearly involves more than just "doing the numbers," that is, involves more than just adding up good and bad consequences and calculating whether the result comes out on the plus or minus side. This can be neatly demonstrated by the following hypothetical case:

John: The Mad Transplant Doctor
John has five patients who need organ transplants. Two of them need a lung; two need a kidney; the fifth needs a heart. Alice walks into John's office for her annual check-up. John kills Alice, gives her lungs to the first two patients, her kidneys to the other two, and her heart to the fifth, thus saving five lives for the price of one.

Would you defend John on grounds of necessity? Why not? Why does this case fail to meet the test of the Model Penal Code?

One question to ask, right off the bat, is (surely) was what the defendants did really necessary. Most states (in our country), however, merely require of a defendant who pleads necessity that he have a reasonable belief that he is in a situation of necessity. Take the following case, for an instance:

John Tries to Rescue Alice
When John and Alice were students in college, they participated in an anti-war demonstration in May, 1968. There was a lot of pushing and shoving. Alice falls down and appears to suffer a severe spinal injury. Police officers try to arrest her but John implores them not to move her without a stretcher since he believes any movement will greatly aggravate her injury. The officers ignore John; he tries to stop them. They arrest him and charge him with disorderly conduct and interfering with police officers in the performance of their duty. It turns out that Alice has not suffered a spinal cord injury. John, however, reasonably believed that she was hurt and that moving her without a stretcher would only injure her further. Should John be found guilty of interfering with the police officers?

Most states would acquit John on the grounds that he reasonably believed that Alice was injured. What about the following cases?

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. The door is unlocked. They enter 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 mis-appropriating Henry's goods, his beans, his coffee, and his firewood?

John, who always fancied himself as a bit of a playboy, borrows Alice's Jaguar for a joy-ride around town. While speeding down Main street, tape deck blaring, the brakes fail and he loses control of the car. The car is heading straight for an intersection where a group of 20 nursery school children are crossing with their teachers. He could let the car continue on its path or swerve into the bookshop on the corner where there is a salesperson in the window changing the window display. If he smashes into the group, he may only be charged with involuntary manslaughter. If he plows into the bookshop, he could be charged with voluntary manslaughter, perhaps even murder. John decides to run the Jaguar into the bookshop. He turns the wheel and crashes into the window display, killing the salesperson instantly. He is arrested and charged with voluntary manslaughter. He pleads necessity. If he had not crashed into the bookshop, he argues, many more people would have died. If you were the judge, would you find John guilty as charged?

It is tempting to think that John and Alice in the first case and John in the second case have courted their own disaster and so should not be allowed to invoke necxessity as a defense. Shouldn't a defendant be completely blameless in order to be able to defend himself on grounds of necessity? What would happen in the above cases? Despite our feelings about the blameworthiness of the defendants, John and Alice are not likely to be convicted of misappropriating Henry's goods since reckless acts of misappropriation are not crimes, only intentional acts are. They are likely to be acquitted. In the other case, John is ikely to be acquitted of murder or manslaughter for driving into the storefront window on grounds of necessity, but he would in all liklihood be convicted of manslaughter for driving recklessly in the first place, since his recklessness eventually resulted in someone's death.