United States v. Clifford Bailey, United States of America v. Ronald Clifton Cooley, United States of America v. Ralph Walker

of America UNITED STATES

v. BAILEY, Appellant.

Clifford of America

UNITED STATES

v. COOLEY, Appellant. Clifton

Ronald of America

UNITED STATES WALKER, Appellant.

Ralph 77-1404,

Nos. 77-1413 77-1502. of Appeals, States Court

United

District of Columbia Circuit. 5,1977.

Argued Dec. 12, 1978. July

Decided 12 and July

As Amended 19,1978. Denied

Rehearing Oct. John Atty., Terry

U.S. A. аnd Steven Schaars, Attys., Washington, R. Asst. U.S. D.C., brief, appellee. were on the for Wil- liam D. Hibey, Pease and James F. Asst. D.C., Attys., Washington, U.S. also entered appearances appellee. WRIGHT, Judge,

Before Chief WILKEY, Judges. McGOWAN and Circuit Opinion the court filed Chief Judge WRIGHT. J. SKELLY Dissenting opinion by filed Circuit Judge WILKEY. WRIGHT,

J. Judge: SKELLY Chief Appellants jury in these criminal cases violating were convicted of 18 U.S.C. 751(a) (1976)1 by escaping “from the § cus tody Attorney of the they General” when departed from the New Detention Center of (“Northeast District of Columbia Jail Mass, Levitt, David A. Watertown, (ap- One”) in early morning August hours of pointed by court), this appellant for in No. Appellants Bailey 1976. and Walker 77-1404. brought had been prisons from federal Robbins, Robert A. Jr., Washington, D.C. where they serving were sentences for fed (appointed by court), this for appellant pursuant eral crimes to the D.C. Jail No. 77-1413. corpus writs of habeas ad testificandum John Rich, Townsend Washington, D.C. by Superior issued Court of the District (appointed by court), this appellant for Columbia2; appellant Cooley was serv No. 77-1502. ing a sentence D.C. Jail a federal in the Hetzel, issues, David G. Appellants Asst. crime. raise various Atty., U.S. Wash- both D.C., ington, with Silbert, common, whom Earl J. individually and in but two custody $1,000 imprisoned year, Prisoners in § of institution or or not more than one officer or both. (a) escapes attempts Appellants escape charged violating Whoever or were also with custody Attorney from the (1973), General or 22 D.C.Code the “local” statute representative, his authorized or defining “prison the offense of breach.” The facility institution or in which he is confined they was instructed if that found the de- by Attorney General, direction of the or from guilty charged fendants as under the federal any custody any proc- under or virtue of statute, they should not consider ess issued under the laws of the United charge under the Tr. 804. D.C.Code. by any court, judge, States magistrate, or or corpus issue Courts writs of habeas ad testifi- custody from the employee of an officer or necessary bring person candum when it is pursuant arrest, United States to lawful jail (usually shall, who confined in a or custody if or confinement serving previous conviction) a sentence for a virtue of an charge felony, arrest on a or testify pending any offense, into court conviction in a case. See be fined not more $5,000 Bollman, generally parte (4 Cranch) imprisoned than years, Ex or 8 U.S. not more than five both; 75, 97, J.); (1807) (Marshall, or C. or if L.Ed. 554 or confine- * Blackstone, Ap- ment is for extradition or W. Commentaries 129-131. virtue of an charge testify misdemeanor, pellants brought arrest or of or for were to the District prior conviction, pending Superior be fined not more than in a case before the Court. appellants Jail where con- the D.C. 3: whether the require extended discussion fined, guards, set both inmates to let the refusing trial court erred while inmates often allowed to burn threats, as- consider whether evidence ventilation,4 proper suffered from lack of saults, jail in the ne- either conditions threatened appellants that had been required to commit the gated intent appellants physical by guards,5 violence provided crime of defense actually been Bailey and beaten Cooleyhad duress, prosecution’s evi- and whether epi- by guards,6 appellant Walker had denсe and trial court’s instructions were inadequate and had received lepsy medical adequate appellants of whether on the issue condition,7and that appel- treatment Attorney were in the Gener- custody of by his Cooley co-appel- lant forced had been alleged by virtue in the al of the convictions Appellants jail.8 argued lants to leave the appellants indictment. We conclude again and assert in the District Court trial are entitled to a new trial because the evidence was relevant ei- appeal this the jury instruct properly court did not specific intent negating ther as “escape” and exclud- to what constitutes required claim is as an element crime jury’s ed relevant evidence from consid- establishing defense that the eration. We also find trial court’s duress. custody element instructions on the were in respects confusing potentially some trial court admitted misleading, problems trial, effectively precluded will presum- during but these but regard ably considering be the new trial. it with to corrected in by holding intent that the crime of specific, only rather than requires general, I The also refused to court allow the intent.9 Appellants duress, first contend the trial jury to hold- consider defense judge refusing to let the jury erred in con- is ing that the defense available duress evi- allegedly exculpatory person asserting sider certain it turns when the himself question sought in, in prerequisite dence. The evidence and that this absent of law.10 appellants’ as a matter frequent establish fires in cases that there Any issues, infra. Tr. 773. note 22 doubt 3. For a of the other see 9. See text at brief discussion jurors may note 68 as to the relevance of infra. have had appellants’ issue of evidence to the intent See, 150-152, 161-163, 168, 371, g., by e. 4. Tr. defined the trial court would have been 377-378, 381, 390, 415, given following 547. instruction resolved the court at the end of the case: See, 368-370, 154, 389-394, 411, g., 5. e. Tr. Now, question gentlemen, ladies 469-473. during has been the course this trial raised as to at the District Columbia conditions See, 373-375, 412, 368, 404-405, g., 6. e. Tr. you say respect with Jail. I wish this to Bailey Appellants 475-478. and Walker were that institution: pursuant in the D. writs C. Jail of habeas You are as a matter of law that instructed corpus ad so that could tes- testificandum conditions at the District of Columbia Jail tify Superior in a criminal case in the Court center, new how bur- detention no matter alleged District of Columbia. Some individual densome or restrictive an inmate allegedly threats and abusive treatment were may be, find them to are not a defense to the attempts by corrections officers to affect their charges case, justification for the this nor testimony. appel- As a of this result treatment escape. commission of the offense Bailey Superior against lant filed a suit in Court judge Furthermore, 806. the same Tr. at when guards, various but the abusive treatment al- case, presided related later at the trial of a See, legedly the suit was continued after filed. type of evidence. refused even to admit this g., e. Tr. 529-533. Cogdell, U.S.App.D.C. United States v. See - 1130, (D.C. -, n.2, F.2d 1132 n.2 603-604, See, -158, 650-652, g., 7. e. Tr. 438 1978). Cir. 678-680; appellant Exhibit 2-A. Walker’s 43 infra. 10. See text and note at note 8. See Tr. 404-405. Nix concentrated Intent A. on “what constitutes crime.” 501 F.2d at ‘escape’ of the element Our relevance consideration Although usually treated “escape” to the elements of the question evidence in single offense defined in as a element of the 751(a) under 18 crime of U.S.C. § 751(a), “escape” Section word —like agree leads us to with the Circuit Seventh legal other many terms12 —is not self-defin- Nix, in United (7th States 501 F.2d 516 ing. juryA instruction than needs more 1974), great Cir. unnecessary deal of properly one word if it to consider this generated confusion has use of “escaped.” whether defendant has concepts “spe- ill-defined terms and such as courts, Seventh Circuit found “[m]ost “general” cific” and intent.11 Much of this with confronted evidence that a defendant unhelpful complexity can be re- avoided intent to leave not or did not could form turning to basic principles beginning with — return, and not held have such an intent a clear definition of the crime of proof escape.” essential of the crime of proceeding consider proper roles of Id. (emphasis added).13 The court then con- prosecution, defense, court, try- ap- to unanimous” cluded “close ing escape cases. justified by proach of the courts was “the Consciously desire to element ignoring such have one human labels “specific” intent, basis “general” punish- ‘blameworthiness’ as a the court in Nix, 1957). “burglary” See United States v. 501 F.2d And the term defined as Scott, 1974); W. LaFave Hand- breaking entering & A. the house of an- “[t]he (1972). book on Criminal Law 201-202 nighttime, in the other intent to commit opinion therein, felony felony actually dissent characterizes the court’s whether as a “bouleversement” that would create chaos committed or not.” Id. at place alleged stability of traditional categories large part criminal law—in be Nix, supra 13. United States v. note F.2d cause the court deals with the at issue 518-519, alia, citing, inter United States v. in this case under the rubric of “intent” as well Snow, 331, U.S.App.D.C. 157 484 F.2d 811 necessity. as that of duress or The essential (1973); Chapman, United States v. 455 F.2d differences between the court and dissent (5th 1972); 746 son, Cir. United States v. McPher proper judge center around the roles of and (5th Cir.), denied, 436 F.2d 1066 cert. 402 jury, infra, hardly see 28 note and are so far- 997, 2181, (1971); U.S. 91 S.Ct. 29 L.Ed.2d 163 reaching suggests. as dissent’s rhetoric States, (9th v. United 378 Chandler F.2d 906 Furthermore, exaggerates the dissent the sta 379, 1967); Gallegos People, v. 159 Colo. bility regard of the law with defenses of (1966); People Dolatowski, 411 P.2d 956 v. 94 necessity. rigid duress and restrictions on Ill.App.2d 434, (1968); 237 N.E.2d 553 State v. availability upon of these defenses Pace, 780, (1926); 192 v. N.C. 136 S.E. 11 State rejected by the dissent relies have been several Hendrick, (N.D. 1969); 164 N.W.2d State v. 57 statutes, including modem Penal the Model Lakin, 82, (1973). 131 Vt. 300 A.2d 554 See Code, and several courts in cases. State, (Fla.App. also Helton v. See, 311 So.2d 381 People g., Unger, 333, e. v. 66 Ill.2d 5 1975); State, (Fla.App. Lewis v. 848, 318 So.2d 529 (1977); People Ill.Dec. Luther, 362 N.E.2d 319 v. 1975), denied, (Fla. 619, 1976). cert. 334 So.2d (1975); 608 394 Mich. 232 N.W.2d 184 People Harmon, representing minority 482, Mich.App. view v. Cases People include 53 220 676, (1974); Institute, Siegel, Cal.App.2d N.W.2d 212 v. 198 18 American Law Cal. (Duress), (Justi (1961); Haskins, Rptr. People Model Penal §§ Code 2.09 3.02 268 177 Cal. Generally: Evils) (Proposed 84, (1960); fication App.2d Cal.Rptr. Choice of 2 34 State v. 1962); Wharff, Official (1955); Ill.Rev.Stat, 871, Draft Hawaii Rev. Laws 249-5 (1965). § 257 Iowa N.W.2d 922 134 (1975). ch. See 7-13 Describing § requisite intent for as an also text notes at notes 29-52 infra. The “intent to leave to return” and not is not com relying dissent’s accusation that the court is on pletely satisfactory might not since cover a “intent” these because other defenses are clear prisoner who intends to tаke an unauthorized ly on the facts case unavailable of this is thus temporary leave of absence. The Seventh Cir without foundation. requirement, own cuit’s version of the intent confinement,” example, legal “rape” 12. For intent to “an avoid 501 F.2d at term 519, captures knowledge defined as unlawful camal the sense of these cases while “[t]he forcibly against avoiding loophole. woman man her the leave of absence See Dictionary will.” Black’s Law ed. text note at 17 infra. note 751(a) voluntary departure “a from cus- prisoner “a who has ment”14 and because to avoid confinement.” grossly tody he is an intent intent no —because analy- intoxicated, jailer Following Id. the Seventh Circuit’s or his has told him thinks sis, “escape” occurs leave, we conclude that an or the boundaries mistakes (2) custody confinement, (1) when a leaves gun held to his head defendant or has (3) permission,16 and voluntarily,15 without likely inmate —is not to endan- by another (4) intent confinement.17 society, escapee wilful is.” Id. at with an to avoid ger as a 519. In order convict a defendant of prove must each of escape, prosecution its review of

On the basis beyond precedents policies, Circuit these factors a reasonable doubt. Seventh can “escape” purposes ordinary prosecution defined Section In the case the . Nix, care, supra provide United note 501 F.2d ure to or homo- States v. essential medical 14 Note, Attempts quoting crime at Rise and Fall 53, Criminal sexual of attacks —the intent element —The Abstraction, escape may 40 Yale L. J. When a de- not be satisfied. (1930). sub- that he was fendant introduces evidence conditions, ject to such “non-confinement” See, Snow, g., supra e. note United States v. is- on the intent crucial factual determination left sue is only whether the defendant thus whether, or these to avoid conditions factor, though explicitly 16. This stated addition, avoid the defendant also intended to definition, implied. clearly It Nix is a the generally recognized making this determination the confinement. the definition element of guided by trial court’s instruc- to be “escape” was included in the trial pointing tions out factors that are most those court’s definition in this case when was instructed that presence of an indicative or absence appellants’ departures See intent to avoid confinement. text and must be “unauthorized.” See Tr. v. e. United States serving a sentence for a crime is “confined”—i. 567, 1977); (9th 559 United F.2d 570-571 Cir. e., liberty his is restricted —in certain funda- 1976); Spletzer, (5th States v. 535 F.2d 950 Cir. ways. example, mental the institution For he cannot leave Joiner, (5th v. United States 496 F.2d 1314 confined, he is he wherein can- denied, Cir.), 1002, 321, cert. 419 U.S. 95 S.Ct. go pleases, daily not come and as he his sched- (1974); United 42 278 States v. L.Ed.2d Wood subject controls, privacy ule is substantially to various his 1248, ring, (10th 1972); 464 F.2d Cir. Unit curtailed, subject and he is to Chapman, 13, supra ed States v. note 455 F.2d discipline. custody strict who leaves with- One 749; States, supra at Chandler United note permission his is ill out to see mother who or to 13, sympathetic at 908. are with 378 F.2d We improve prison (assuming his menu the fare is expressed the a concern in these cases that reason) within has intent to avoid confine- to should be allowed remain ment since restricted contact with relatives and large impunity simply because his initial reasonably a choice are limited of diet normal departure did not con under the circumstances Furthermore, pris- incidents of confinement. agree stitute We that the a crime. therefore custody tempo- oner who even a leaves take jury pris trial the that a court should instruct rary “leave normal of absence” from the condi- oner the to avoid confinement requisite who lacks intent possesses of the tions intent for prisoner confinement may custody hand, nevertheless at the he leaves escape. time the if a On other escape if he later forms that he commit crime of to show left the offers evidence report to the that fails confinement not beating avoid are intent and therefore conditions aspects See also text normal in. of authorities or to turn and “confinement” —such himself trial, reprisal testimony in a fail- note note at 43 infra. instructing Finally, when the prima

establish a facie ease that a defend- jury “escaped” offering ant evidence that the on the elements of the offense departed custody jurors’ defendant from without charged, judge direct the should the any permission. Absent additional evidence those that re attention to considerations defendant, the introduced such case spec quire special emphasis. addition jury can be submitted to the with the in- ifying of voluntariness major the indicia may the jury struction that infer the de- immediacy, specificity, intent —the fendant’s intent from the circumstances.18 fears, the severity any alleged threats however, opportunity, defense has viable alternatives to unau availability of tending to submit additional evidence defendant’s de departure, thorized negate any aspect essential offense. to return custo cision and when whether example, jury For can consider whether dy jury should remind the court —the conditions, threats, and vio- jail evidence of prison inevitable associated with difficulties presented appellants lence such that discipline20 possible and of biases raises in the District Court reasonable testify prosecution defense witnesses concerning capacity doubts a defendant’s to ing aspect with respect to that of the case.21 “voluntarily,” act or his intent to avoid however, It is jury, that must make the confinement.19 prosecution final determination whether has met oppor proving its burden of each of the prosecution then has the tunity to rebut the elements beyond defense’s evidence. The of the crime a reasonable prosecutor not, offer can evidence of cir may doubt. The court as the District cumstances or behavior inconsistent with case, upon Court did in this take itself exculpatory defendant’s contentions. responsibility making this determina evidence, Depending a prosecutor tion.

may argue allegedly that the conditions ne analysis Our the law escape

cessitating departure defendant’s from indicates Court in its mild, District erred custody relatively were alterna definition (e. consequently offense g., tive remedies short of resort to precluded jury’s courts) consideration evi authorities or the avail able, dence that to an was relevant essential ele that the dеfendant failed to return judge ment of voluntarily the crime. The trial in once conditions structed allegedly motivating longer defendant “es no If if caped” threatened him. the defendant takes the he “without authorization did ab defense, prosecutor place stand in sent his own can himself of confine inquire did why voluntarily not return ment.” Tr. 802. on the Relying opinion credibility and can test the of his defense the Tenth in United Circuit States v. by the rigors 1248, Woodring, of cross-examination. 464 F.2d apply States, (1964); U.S.App. 18. The still must course the “be- Tatum v. United yond 391, 612, (1950). reasonable doubt” standard to this in- D.C. 190 F.2d Winship, ference. See In re 397 U.S. (1970). S.Ct. 25 L.Ed.2d 368 Such an instruction also should indicate general boundaries between what is and is not special In order be to entitled a instruc- to supra. “confinement.” See 17 note on tion whether intent to avoid confinement negated was evidence of conditions the U.S.App. Sheppard, Cf. United States v. 186 jail, must, course, a defendant of introduce 283, 287, 114, (1977) 569 (in D.C. F.2d 118 a some of evidence these conditions. Since the rape case, the motivation of the com “[w]here by appellants evidence offered in this case was issue, bringing charge plainant the is an as in clearly “substantial,” we need not decide the case where the contends that she defendant necessary minimum threshold of evidence to intercourse, attor the defense consented to the entitle a defendant to this instruction. See dangers ney emphasize jury the the free to to generally Nix, 11, supra United States v. note falsification, judge and instruct the should 519-520; Grimes, 501 F.2d at States v. United jury difficulty dangers as to those and the 1969); 413 F.2d 1376 Womack Unit- v. consent”). establishing States, ‍‌‌​‌​‌​‌​​‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​​​​​‌‍40, U.S.App.D.C. ed 119 336 959 F.2d

1095 proved before there be a must be can tent only 1972), judge jury trial told the that * * * required to commit “general intent” conviction”]. that “means and escape, the crime added).22 As (emphasis 464 F.2d at 1251 do purpose a defendant has to only that above, Seventh Cir- find the we indicated do the act. It means something, will to v. in United States analysis cuit's careful consciously inad- was done and not the act authority.23 Nix much persuasive more accidentally.” or Tr. vertently attachment a defi- to Court’s The District Woodring is weak authority proposi- for the effectively would “escape” that nition of re- 18 U.S.C. 751 tion that under considering the evi- prevent jury from intent, since the only quires “general” assaults, jail, and conditions in the dence of issue is entire “discussion” court’s re- appellants’ in relation to intent threats cryptic following and conclu- limited courts, moved a line of cases in flects sory reference: undermining prison discipline or fears specific on intent The instruction is. to escapes, mass have hesitated encouraging is in the in- erroneous where willfulness allegedly such juries even to consider allow though specific intent is dictment. Even escape cases unless exculpatory evidence in 751(a), not an element of § intent specific rigorous have satis- various conditions became the of the case when the law justification adequate 11 in- We find gave [“specific fied.24 no Court Instruction holding “escape” alleged that accept case that Nix court’s 22. The in this also indictment appellants unlawfully wilfully and avoid confinement” and flee and an “intent to “did includes jury (emphasis should consider escape” ed). custody. and from R. 32 add- outline how a court conditions, unrelated evidence of extreme confinement, to the ex- is relevant normal istence of that attempts distinguish the Nix 23. The dissent procedures we that intent. by limiting to its and as- case that case facts closely parallel adopted adopt those may serting negate that holds intoxication Nix. See id. at 519-520. court in While “general” “specific” as intent. as well willing enough accept the seems dissent at-, Dissent, U.S.App.D.C. 585 F.2d at 190 respect view” with and ascendant “modem interpretation opin- Nix 1124-1125. This Nix, “distinguish” it is intoxication apparently order Condemning categorical is untenable. ion rule factors as princi- unwilling apply basic exculpatory that the relevance such underlying ple “modem ascendant intoxication, coercion, and mistake this case. Instead the to the facts of view” depends on classi- the mechanical artificial prefers to the mechanical to adhere dissent involving specific of a fication general crime as either or terminology specifically specific/general intent intent, rejected Seventh Circuit rely rejected in Nix such au- and to on weak specific/general altogether terminology intent case, thority Woodring see note as the text and expressly to declare refused whether supra, proposition es- at note 22 for the required “general” “specific” intent. 501 cape general dissent, is a 190 intent crime. See Instead, F.2d at 518. categorical the court followed a less n.84, U.S.App.D.C.at-& 585 F.2d at 1124& approach urged similar to that n.84. commentators, leading some see LaFave & W. Scott, supra 11, such would exclude A. at 344: it focused of the older cases note 24. Some See, g., People Whip defining altogether. v. crime of e. intent element evidence (1929). proper- 261, (1) ple, Cal.App. 1008 Oth and held must 100 279 P. element, ly (2) relevant that if have instructed as to this er cases treated such evidence adequate necessity im have defenses and the defendant intoxication, to duress posed introduces rigid availability these limits on the should instruct court See, Lovercamp, g., People 43 e. v. that it must was so requisite whether the defendant defenses. Cal.App.3d consider 823, (1974); Cal.Rptr. 110 State that he could not form the intoxicated Green, (Mo. 1971), cert. its its 470 S.W.2d 565 The Nix court did not limit v. intent. denied, intoxication, L.Ed.2d but 405 U.S. 92 S.Ct. discussion indicated State, (Okl. (1972); Grubb v. P.2d 988 view that such factors as coercion and mistake Worley, 1975); negate Cr.App. 265 S.C. could also the intent State element Annot., (1975). See, g., generally escape. See crime of (“Whenever e. 501 F.2d at 518 220 S.E.2d Duress, Necessity, (or or mis- or Conditions of Confine intoxication coercion factor, Prison, Escape take) mitigating is raised use of the ment as Justification (1976). adopting ‘specific’ ‘general’ intent labels interferes 69 A.L.R.3d Courts approach People Un analysis v. make flexible include: with the crucial in court should more ger, Luther, supra 11; escape ‘escape’ supra People v. note cases: what constitutes the Harmon, supra 11; crime?”). People 11. note We do than v. element the no more note 1096 allowing perform the accus- against jury broad view to its special proscription

for this probative such admission of defеnse evi- escape may cases those tomed role in make relating to intent. Juries are accus- dence responsible con- prison conditions more for determining alleged the intent of tomed may responsibilities scious of their well criminals, nothing we see in the context fewer, more, escapes. lead to rather than prosecutions escape requires the Harmon, v. 482, People Mich.App. 53 See denying court to risk the defendants a fair aff’d, (1974), 625, 220 N.W.2d 212 394 Mich. jury trial the denying its normal func- See also United (1975).28 232 187 N.W.2d escape juries tion. Those cases in which - Co., Gypsum v. United States States have been exculpatory allowed to consider 2864, -,---, U.S. 98 2872- S.Ct. evidence no support offer fears 2878, 57 L.Ed.2d (1978). 854 jurors reasonably are unable to consider all the aspects juries cases

will render will “encourage” decisions that Duress-Necessity-Compulsion-Choice B. fact, escapes.25 In assumptions the under- of Evils- lying special the restrictions on defense evi- giving In addition to an instruc dence in appear pure cases to be tion that made the evidence of conditions in speculations any empirical support without assaults, jail, the threats irrelevant in either the law scholarly case or the litera- issue, judge the intent the trial refused hand, ture. On the other the pernicious jury the the let consider consequences of the are restrictive rules all grounds defense There is for a of “duress.” too clear the reported from cases.26 As we some theoretical confusion over the nature above, explained proper have approach the necessity, defenses duress and tois inform jury of those considerations deliberations, especially prison escape that are in context of relevant to its not to take the out minimized, issue of its hands.27 In our cases.29 This confusion can be See, g., Grayson, weighing 25. e. United v. 550 States F.2d issues are relevant evidence of (3d 1977), granted, 816, 103 g., Cir. 53, cert. 434 U.S. conditions in cases —e. (1977); 98 S.Ct. 54 L.Ed.2d conditions, 71 severity United States availability of alter- Cluck, (8th Cir.), denied, v. 542 F.2d 728 cert. escape, promptness natives to and volun- 986, 506, 429 U.S. 97 S.Ct. 50 L.Ed.2d 597 return tariness of dissent —the (1976); State, Syck 50, Ga.App. v. would all such hold evidence irrelevant as a (1973). S.E.2d 464 every matter of unless it law is determined that specific prerequisites one of five related See, Green, 24, g., supra e. State v. note court, these issues met. The other (Seiler, J., dissenting); People S.W.2d at 568 v. hand, that, defendant, holds at when a least Whipple, supra note 24. case, in this introduces substantial evidence People Unger, 11, supra conditions, absolutely 27. See v. jury note Ill.2d extreme prohibited is not 341, at considering Ill.Dec. at at N.E.2d such evidence from recently This court affirmed its merely confidence prerequisites because certain inflexible the role of the as fact-finder in criminal view, are not court’s the fac- satisfied. Sheppard, supra cases in United States v. note represented by prerequisites tors are the Sheppard 21. requirement discontinued the corroboration considerations, significant most of the but none rape cases, relying on the adver prerequisites necessarily itself is determina- sary process proper judicial instructions to presented tive. Once defendant has guide just reaching result. See evidence, threshold amount of that evidence is supra. note 21 properly jury. to be considered instructed People Unger, supra See note 5 Ill.Dec. at Despite length dissent, its basic (quoted 362 N.E.2d at 323 in note 37 in- opinion differences can court fra). briefly. stated The fundamental theoretical dif- accept ference is that the dissent refuses to arguments 29. Most of and evidence holding “escape” of the Nix court that an re- presented by appellants do not fit within quires an “intent to avoid confinement.” See “necessity” standard definition of a “duress” or note 17 and text and ordinary firmness person a tions that however, on basic concentrating the resist.30 This have unable to proffered defense would underlying a principles intoxication, such like defenses of unhelpful principle, labels as “du- avoiding and mistake, intent negates the insanity, and “necessity.” ress” of an offense.31 In voluntariness elements usually The defenses raised under type to this de respect structions with duress/necessity reflect two dif labels are discussed the crime of fense for general principles exculpation. ferent (I-A supra) and re above under “Intent” exemplified by the principles, One of these here.32 quire consideration no further compulsion, as dictates notion duress general principle re responsible for an The person a will not be held other of duress/necessi- threats or condi in the discussions offense he commits under flected reasonably if, suggests, duress can be a him believe threat caused to as dissent crime to avoid immi the harm to be avoided that he must commit the defense committing where bodily outweighs nent serious harm himself death or the harm an offense Scott, person. offense, & by committing a third See W. LaFave A. then caused Only appellant supra note at 374-381. Coo provision separate in a for duress defense ley’s Bailey Walker forced him claim that already general contains choice-of- code evils-type jail leave fits classic model comfort surplusage. would be mere defense ably. necessity defense is availa The standard above, Yet, as indicated Model Penal Code pressure physical ble of natural when “[t]he general both a of evils defense contains choice * * * person confronts a in an emer forces gency and a duress defense. choice of two evils” and when with a Appellants requested following instruc- choosing requires the lesser of the two evils tion on “duress”: person the criminal law. to violate Id. appellants’ evidence involves criminally responsible 382-388. Since is not A defendant forces, than natural human threats and physical rather willingly the commission of the crime of ones, a classic it does not establish voluntarily escaping jail he com- if from necessity and commentators defense. Courts escaping the act of incarceration mitted from created, recognized partic have ularly the difficulties him. as a result of coercion exerted on cases, by exculpatory the commis- which would excuse Coercion falling traditional du in between the act from: sion of criminal must result necessity proposed have ress and defenses and 1) Threathening sufficient conduct [sic ] See, g., various v. solutions. e. United States person create in the mind of a reasonable Michelson, supra 17; People note v. Lover harm; bodily the fear of death or serious 24; camp, supra People Unger, supra note v. 2) fear of The conduct in fact such caused 11; Luther, 11; People supra note ple v. note Peo bodily in the mind of or serious harm death Harmon, 11; Gardner, supra v. note The defendant; Necessity Right Escape Defense of and the upon operating 3) The fear or duress was Prison, (1975); 49 So.Cal.L.Rev. 110 Com time of the mind the alleged of the defendant at ment, Escape: The Defense of Duress and Ne act; Note, cessity, (1972); 6 San Fran.L.Rev. 430 4) act The defendant committed Escape: Duress Prison A and the New Use harm. avoid threathened [sic] Defense, (1972); an Old Casenote, So.Cal.L.Rev. or duress is of coercion When evidence Harmon, People Mich.App. beyond prove present, the must Government (1974), 220 (1974); N.W.2d 43 U.Cin.L.Rev. 956 did not reasonable doubt the defendant Annot., supra note 24. words, you if under In other act coercion. or not the (Proposed doubt whether have reasonable See Model Penal Code 2.09 Offi- § Commentary as the court 1962) defendant acted under coercion cial Draft 2.09 you, your (Tent.Draft 1960). must be has defined it verdict No. 10 guilty. Model Penal Code includes the defense interpreted might be R. 32A. This instruction principle, along based on this with the defenses raising only type that would defense mistake, 2: of intoxication and in Article Gen- on intent set be covered under the instructions Principles Liability. eral Penal The Model hand, given the theo- On the other out above. prin- based on choice of Code defense evils of duress and confusion over labels retical hand, ciple, on the other in Article included underlying necessity principles and the these Principles 3: General of Justification. defenses, appellants’ proposed instruction every claims that version of dissent might a choice of also be construed raise satisfy principle duress must also defense type therefore evils defense. We consider utility” embodied in the “choice “social defense well. However, evils” Dissent at note 92. defense. duress/necessity labels surrounding the sion justification by choice is one of ty defenses choice of evils more than the fundamental e., evil —i. person is not of the lesser “fixed rules which de- by creating principle if he committed it an offense guilty of underly- the rationale part somewhat reasonably believed his action because he tendency The ing [general] rule.”35 more serious necessary to avoid harm duress/necessity defens- courts to structure prevented by the sought than that to be fixed rules has been es in of such terms than defining the offense.33 Rather statute in cases.36 pronounced particularly excusing a action because defendant’s cases, how- codes and progressive The more society punish, the intent wishes to lacked theoretical ever, to reduce the have tended affirmatively this “choice of evils” defense complexities of the choice practical justifies the defendant’s action: defend- general guidelines evils defense to few right “public ant because thing, did with its basic rationale.37 consistent а lesser policy favors commission of (the what would other- harm commission of choice-of-evils-type to the regard crime) wise be a when this would avoid a defense, present case in its particular this greater legislatures harm.” Courts and posture presents relatively at most38 recognized that have type of defense jury should be question narrow whether a have often reflected the theoretical confu- sufficient- allowed to consider an otherwise be, See, Ill.Rev.Stat, 38, may (1975); g., negligence, 33. ch. the case § e. 7-13 lessness or (Proposed culpability. Model Penal Code 3.02 Official § suffices to establish 1962) Commentary (Proposed Draft (Tent.Draft 3.02 at 5 Official § Model Penal Code 3.02 § 1958); Scott, 1962). No. 8 relied on W. LaFave & A. Draft section The Illinois Code 11, supra 378-379, supra note Even People Unger, 381-383. note in the court v. general principle vary provides: statements of the aspects in such degree objectivity required. as the be an of- Conduct which would otherwise Code, example, requires necessity The Model Penal justifiable by if fense is reason that the balance of harms in fact favor commis- the accused was in occasion- without blame crime, regardless sion of the of the defendant’s ing developing and reason- situation reasonable belief. ably necessary conduct was believed such greater public private injury than avoid a Scott, supra 34. W. LaFave & A. note at 378. reasonably injury might result from his own conduct. Id. Ill.Rev.Stat., (1975). Unger ch. 7-13 The rejected attempt impose rigid court See, g., supra. e. cases cited in note 24 Lovercamp prison escape conditions in cases following with the comment: provision 37. The Model Penal Code reads: agree We with the State and with the court Generally: Section 3:02. Justification Choice Lovercamp in that the are above conditions of Evils. assessing relevant factors to be in used (1) Conduct which the believes to be actor necessity. say, claims of We how- cannot necessary to avoid a harm or evil to himself is, ever, that the existence of each condition justifiable, provided or to another that: law, necessary as a matter of (a) establish sought the harm or evil to be avoided necessity greater meritorious defense. sought such conduct is than that preconditions Lovercamp prevented by set forth in defining to be the law are, view, go charged; in our matters which offense credibility (b) weight neither the of the defendant’s tes- Code nor other law defin- timony. ing provides exceptions a court the offense or de- The rule is well settled that dealing specific ques- weigh fenses situation will not the evidence where the involved; justified. is whether an instruction tion * * * (c) legislative purpose to exclude the or more of the The absence of one justification not otherwise Lovercamp claimed does would not nec- listed in elements essarily plainly appear. finding mandate a that the defendant (2) negli- When the actor was reckless or necessity. assert the defense of could not requiring gent bringing about the situation Luther, People 362 N.E.2d at 323. See also v. appraising a choice of harms or evils or in 11; Harmon, People supra supra v. note note necessity conduct, justification for his afforded prosecution unavailable in a this Section is supra. 38. See note offense for which reck- People appellate ate court California of evils defense choice ly supported39 823, 118 Cal. Cal.App.3d special prerequisites Lovercamp, of one of absence Lovercamp imposed upon (1974).44 such de- court Rptr. courts have some be requirement requirement cases-—the imposed fenses apparently to the prisoner in au- it a escapee an turn himself that that cause it feared without escaping.40 Af- immediately after thorities conditions of the who the other satisfied “du- considering appellants’ proposed ter go merry way his defense could “thereafter and a on instruction41 memorandum ress” responsibility for his un relieved of escape in cases duress/necessity defenses Cal.Rptr. at. 115. seemly departure.” 118 the trial the Government42 submitted the Subsequent opinions, notably most prepared that had court announced in United discussion States Ninth Circuit’s duress, but at the last mo- instruction on 1977),45 Michelson, (9th Cir. v. 559 F.2d 567 give that it could not the ment decided rudimentary rationale developed have this because, the Court heard instruction “[a]s The Michelson court’s rigorously. more evidence,” had the defendants not require return analysis that reveals adequate in or made ef- turned themselves assumption critical ment on the based to do Tr. 806—807.43 forts so. e., offense, “continuing” i. escape that is a escape, may that commit the crime one The most influential statement custody from original departure as even if requirement” prerequisite “return a to a refusing re justified, by failing or choice-of-evils-type defense in cases was justifying circum- opinion custody of an intermedi- turn to once the is contained in reports (5) immediately appellants that failed 39. The dissent claims The only satisfy proper matter of law not requirement, return he has attained authorities when present also to sufficient evi- position safety but the immediate threat. get to dence of the harm to be avoided to Cal.Rptr. at 115. Dissent, at-, jury. U.S.App.D.C. supra appellants’ 41. See note 32 for text view on F.2d 1116-1118. dissent’s proposed instruction. court, point opinion contradicts the of the trial willing to which was instruction the submit “duress” 42. R. 35. except appellants’ failure to for meet requirement. return note 43 See infra. In expressly appel- view the trial court’s conclusion that that our 43. The court stated if trial point evidence on this was sufficient to requirement, submit “I lants had satisfied would return clearly to the was correct. The dissent’s permitted and condition have the duress narrow insistence on threats of “immediate” instruction, fact, argument. In I here an have prerequisite harm an absolute for the choice up very carefully with which I drew that in particularly inappro- of evils defense seems mind, I but I realized that at the end which cases, priate possibility in where a finding calling upon jury make a was escape (especially escape) nonviolent is not make, say is to that that these couldn’t likely to remain available until a substantial in and men had turned themselves threat becomes in “immediate” the narrow prerequisite the defense of assertion urged by sense the dissеnt. duress, Since or coercion.” Tr. 778-779. given but court’s instruction would have requirement” 40. The “return has been describ- requirement, for the return the choice of evils ways. ed in the trial various this case court validity issue in this case turns requirement. appellants’ refused to allow because duress instruction did not turn them- defendants “[t]he proceed- in.” selves ings Tr. 807. Elsewhere in the suggested these trial court that “[h]ad Lovercamp version of the return court’s public men notified the authorities or the de- supra. requirement quoted in note 40 Since fender in tions under an effort surrender condi- ap- prisoners Lovercamp in had been arranged by might have been immediately prehended de- almost after their defender, permitted public I then would have parture, appeals remanded the case court argument.” the duress and condition Tr. 778. appellants in- determination whether People Lovercamp, supra v. note establish- tended to surrender the authorities. requirement following es the in the return terms: States, A.2d 45. See also Stewart United necessity is if available limited defense [A] (D.C.Ct.App. 1977). * * * following conditions exist: indictment or the trial longer present. charge stance is no Thus the Ninth court’s unnecessary Circuit found it to decide Although the jury. very sym we would be “whether defendant acted out of duress pathetic to a instruction similar to that escaping” because the defendant in Michel- Chapman to the effect that a defendant custody son had been absent from for near- “escape” by failing can to return to ly years applied two and his duress defense departure justified even if his initial only departure, to his initial not to the two and that a of evils defense to choice years large.46 he was at 559 F.2d at 571. justify must therefore a defend In support of its conclusion the Michelson but also his original departure ant’s contin court approval cited with United States v. absence,48 ued no such given instruction was Chapman, 1972), 455 F.2d 746 Instead, appellants this case. were in jury where was instructed that even “[t]he escaping]” “flee[ing] and dicted for “[o]n if they should find that the defendant was 26, 1976,” August about and the trial initially prisoners forced other to leave instructions, than explaining court’s rather custody, federal ‘if he thereafter on his own concept jury, to the “continuing offense” volition large decided to remain at this ” emphasized notion that the offense took would constitute the crime of escape.’ August jail place appellants when left the on 570-571, quoting 559 F.2d at United States 50 Thus this is not a case where the v. Chapman, supra, 455 at (empha- F.2d 26. jury considering was whether a defendant added). sis analysis Under the in these escaped by failing had to return. Appel cases, the return requirement merely stands lants were tried and convicted escaping for the limited and commonsense notion that a by leaving jail choice of evils on August defense to the crime of it and was “escape” leaving staying as error deny therefore for trial court to —defined away from custody only long as choice ground of evils instruction on the —lasts justifies choice of evils a failure to that the defendants had not returned or return. adequately explained their continued ab effect, sence. In ap trial court denied analysis The Ninth Circuit’s indi pellants’ jury right to have the consider a application cates that the trial court’s of the duress defense to the crime with which they return requirement in the circumstances of charged (escaping August 26) had been on this case inappropriate.47 was Even if we accept the because the court that they notion on which the found would in requirement is based—that escape continuing is a event be guilty of of an offense under a theory fense—this not (failure was reflected theory return)' that was never allegedly appellants’ argument Michelson feared is some force to that this that if he remained in interpretation would be is not clear on the face of the already harmed another inmate who had statute, favoring and the rule strict construc- injured fight. him in a violent 559 F.2d at 568. important tion of criminal statutes makes it continuing concept clearly that offense distinguishable 47. Michelson is also from this explained jury. case on the intent issue. The defense in that issue, case did not raise the and the court’s 49. R. 32. comments on the circumstances of the case agent indicate the reason for this: “The F.B.I. example, who 50. For the trial court instructed the arrested Michelson testified that Michel- son, having jury freely rights, been advised of to consider whether the defendants had his * * * escaping felony admitted agent also told the [and] been convicted of a “at the time of the prompted indictment, that his say had been charged not offense in the that is to only by * * Santini, beating by his but also 26th, August Tr. 801. The lengthy twenty-two year imposed sentence trial court’s when read as a instructions whole robbery the bank and the Parole Board’s refus- clearly give impression appellants al to set a release date for him.” 559 F.2d at being leaving jail tried August failing return at some and not for later date. recognize pressures We have led continuing courts to construe as a of- supra. Nevertheless, fense. See note 17 there must ing that such a defense either offense and presented appellants jury. We cannot sanction such an obvious continued therefore defendant’s justify appellants’ right constitutional departure. violation of absence initial as well trial. therefore be must Appellants’ convictions for a remanded reversed cases their Under circumstances new trial. for us consider unnecessary case it prerequisites exhaustively proper to a evils cases.51

choice of defense II gave this apparently ques The trial court challenge court's the trial Appellants also attention, and we do tion considerable the evi sufficiency of and the instructions instruction prepared know the nature its to another element regard dence with were it not for the return re except es time the offense: whether quirement, which must be modified in ac At custody in the caped they were opinion,52 willing our cordance with by virtue the convictions torney General to have the consider defense.53 alleged the indictment.54 The indictment Summary appellants had been charged C. all three lawfully committed prejudicial in the We find error District fed Attorney specific virtue of General of Court’s instruction on the element “es- had es sentences and eral convictions and jury from cape,” prevented prop- which the custody.55 prosеcu The caped from such erly considering appel- relevant evidence Cooley was that tion’s evidence indicated The also erred lants’ intent. District Court Jail, the while serving a D.C. sentence requirement a imposing return as an ‍‌‌​‌​‌​‌​​‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​​​​​‌‍Walker, serving who sen Bailey and appellants’ pro- prerequisite absolute Leaven instruction, facility tences the federal posed rather than in- “duress” worth, Kansas, brought been to the is a had structing jury the continu- that Michelson, they trying supra are crime for which United States note nature the See Dissent, 17, “patently is frivolous.” 190 F.2d at 571 defendant 559 n.10. at-, U.S.App.D.C. 585 F.2d at 1116. acceptable the “return re- An version of quirement” (1) would an instruction include 54. The for a defendant’s confinement reason offense, (2) continuing is a and that important penalty provisions because of that a evils defense instruction choice of cannot 751(a), penal- vary severity of the § justify continued absence if conditions es- depending whether a was in ties defendant tablishing (whatever the defense the court de- charge custody “by virtue of an arrest on a be) termines them to period prisoner do not continue for the any offense,” felony, “for or conviction large. remains at charge by virtue of an extradition or arrest argues 53. The dissent that the court “labor[s] misdemeanor, prior of or for to convic- exculpate mightily * * these defendants.” Dis- 751(a) (for tion full text § 18 U.S.C. sent, -, U.S.App.D.C. 190 at 585 F.2d at supra). see note 1 wholly 1128. This statement misconceives the opinion. in the do not issues decide lants court’s We even Bailey appellant against illus- charge alleged by appel- whether the conditions trative: existed, actually whether much less 26, 1976, August On or about within justified appellants’ Our actions. concern is BAILEY, Columbia, District of having dy CLIFFORD clarify rather to appellants’ law as to relevance of lawfully the custo- committed jury evidence that and to assure Attorney of the General on March perform opportunity is not denied the its 18, 1973, April a conviction virtue of constitutionally accustomed and functions. mightily” mandated imposed by States United sentence Indeed, it that the dissent “labors Maryland in District for the District of Court usurp proper jury’s to example, function 73-077, when, Numbers 72-0599 and Criminal Case for its view rehearses wilfully unlawfully respectively, flee length thinly pur- did evidence at pose with the veiled custody. suggesting are from such which witnesses credible 18, U.S.Code, not, dissent, (Violation U.S.App.D.C. Section Title are and which -, 1106-1108, 585 F.2d at 751(a)) and when it complains (and requiring jury that R. 32. defendants) adequately to be informed of the specific there was no docu Since corpus to writs of habeas pursuant D.C. Jail evidence, on the such as a return mentary Superior ad issued testificandum Order, showing Judgment and Commitment Court for the District Columbia. committed him Attorney that General objections raise two Appellants Jail, argues that the Cooley to the new D.C. custody on the instructions and prove evidence fails to that he was confined First, element of the appellant offense. jail by in the virtue of the conviction al Cooley argues prosecution’s evi- support in the He draws leged indictment. custody by dence that he was in virtue of States, v. United 339 F.2d Strickland his federal conviction at the time he es- 1965), a case in which the caped was insufficient as a matter of law. Tenth reversed a conviction Circuit prosecution primarily relied on docu- 751(a) because it held that under Section mentary prove custody evidence to ele- here evidence similar to that introduced case, ment in all Cooley’s three cases.56 In was insufficient as a matter of law to es example, (1) the Government introduced prima Although tablish a facie case. a “face showing Cooley sheet” custody” a “chain of proof Government’s committed to the Jail” on April “D.C. pursuant alleged in the to the convictions prisoner” (Government 1976 as a “federal be, strong as it could indictment is not 8), (2) Judgment Exhibit No. and Commit- agree prosecution’s we that the evi do not ment May showing Order dated prima facie case dence fails to establish following his conviction of Possession a matter law.57 Reasonable inferences Unregistered Firearm, of an presented could en U.S.C. based on the evidence 5861(d) (1970), beyond a reasonable Cooley was sentenced and able a to find Cooley custody was in appellant “committed to the doubt Attorney alleged in the by virtue of the convictions General or his representative authorized indictment at the time left confinement. imprisonment period for a (5) of five years” Moreover, the trial court’s instructions with (Government 2), (3) Exhibit Escape No. respect Cooley’s custody essentially to were and Apprehension Form August dated correct.58 1976 noting that Cooley escaped had the D.C. Jail on (Government that date objection related the custo- The second to 5), Exhibit No. (4) and the testimony of the concerns the dy element of the offense Supervisor of Records at the Jail D.C. brought who were to the D.C. appellants there was no record Cooley’s being re- pursuant corpus to writs of habeas ad Jail leased jail’s from the custody August Bailey before and Walker. The' testificandum— 26. Tr. at jury: 27-28. instructed the trial court Appellants Bailey adopt jury appel- and Walker the in court instructed 58. The trial Cooley’s argument lant respect beyond with to a reasona- their order to convict it must find own Although documentary (1) appellant cases. had been the evi- ble doubt that each slightly cases, dence among felony, (2) varied “as a result the three a and convicted of analysis Cooley’s the argument applies appellant] was commit- the conviction [each equal Attorney custody force to the other two ted to the General cases. of the designated representative, was in cus- [his] tody States, at the time of the offense.” Tr. 801-802. The court in Strickland v. United problem, (10th These instructions raise and we 1965), F.2d 866 no Cir. v. relied on Mullican unlikely by States, think it was confused 1958), that the United 252 F.2d 398 a respect the court’s earlier documentary case statement that “with in which certain evidence linking to each of the defendants who is on trial in this custody escaped a defendant’s when you case the Court instructs that defendants to alleged the conviction in his indictment was convicted either in this federal court or in the Although held inadmissible. the Mullican felonies, Superior Court of or in the court federal found that the admission of the evidence throughout country the prejudicial error, had are committed cоurt[s] been it did not dismiss custody Attorney (as to the of the did), the General of the case but re- the Strickland court general practice United States. This is a manded for a new trial in which the would judicial the Court will take custody notice of be it and allowed to issue without decide the you accordingly.” instruct the Tr. 800. F.2d at 405. inadmissible evidence.

H03 Clise, (12 Wall.) Barth v. 79 U.S. opinion in Prisoners, prisoners two of the such as case, (1870). That a in this L.Ed. 393 case was case who in this defendants jurisdiction to recover debt owed against convicted in another and suit sheriff are custody Attorney in es- plaintiff by prisoner who were the the to the who had General, jurisdiction re- brought allegedly were to this the was caped while sheriff sheriff, shows, sponsible safekeeping. as the be- for his The documentary they pursuant were wit- to a prisoner cause summonsed had arrested the who [sic] proceed- plaintiff, nesses another defendant exeat the writ of ne obtained ing pending pursu- then in the District of Co- into court brought prisoner the had corpus court. are still under the obtained They lumbia of habeas ant a writ escaped today then custody Attorney prisoner of the General prisoner. they happened during habeas cor- regardless how from the courtroom District of into the Columbia fled Canada. brought pus proceeding was Jail. that the sheriff held Supreme Court prisoner, owed debt not liable Appellants claim Tr. 800-801. that this in- re- the sheriff had that once explaining not the law that it struction does state pursuant the court prisoner to turned the effectively removes an issue fact from corpus, responsibility the writ of habeas jury’s consideration. prisoner passed safekeeping for the Appellants’ argument basic is that when finally dis- the court “until the case who prisoner has been committed (12 Wall.) posed at of.” U.S. Attorney custody of General is transfer- L.Ed. 393. to a pursuant corpus red writ of habeas ad Barth,59 Citing appel- broad testificandum, language is no longer testimony argue lants that unless custody Attorney pursu- General District, they brought had been commitment, original ant to the but is in completed, they had Columbia custody of the court issued the order of the Su- custody pursuant to an operation during writ—-at least their perior by virtue of that, Court and urge con- Appellants writ. therefore they the time left the federal convictions trary given by the trial instructions jail.60 arguments Similar based on Barth court, question whether there a factual previous in several Clise have been raised Attorney in the they were 751(a), under Section brought cases Superior or of Court at the General persuaded arguments have never but such they claim fur- jail, time left the custody lack- requisite to find any on this court the ther that the Government’s evidence it.61 ing in the case before factual issue insufficient establish prima facie case. cases, us these the case before Like other is authority distinguishable find from Barth on several

Appellants claim to in law position early Supreme grounds. Court Barth with the common their the dealt law, Clise, Wall.) 400, 402, By upon (12 the the of a 20 59. common return Barth v. 79 U.S. production (1879). corpus writ of habeas and the 393 L.Ed. out, body suing party the of the author- the prosecution 60. The introduced no ity original under which the commitment appellants complet- the trial аs to had whether time, place superseded. is took After that Ap- testimony Superior ed their in the Court. of, disposed finally until the the and case is pellants Bailey argue Walker and therefore entirely safe-keeping prisoner is under the their cases must be dismissed. the control court and direction prisoner which the return is is made. See, Viger, g., F.2d e. States v. 530 United detained, commitment, original not under the Stead, (9th 1976); 528 846 Cir. United States v. authority but under of the habeas writ of (8th denied, 1975), 257 Cir. cert. 425 U.S. F.2d hearing corpus. Pending may he be 1730, 953, (1976); 96 S.Ct. 48 L.Ed.2d 197 diem, die in be bailed de remanded to States, United 251 F.2d v. 794 Tucker came, any jail he whence or be committed to 1958). place suitable of confinement under other * * * control of court. 1104 receiving while in the escapes and fense escape of a a custodian for

liability of prosecuted involves an inter- under jurisdiction, may this case he prisoner, while of the federal sending jurisdic- the terms pretation of statute of escaped in Barth prisoner statute. tion.62 during pro- the habeas courtroom from the protecting the inter allegedly left an addition appellants In

ceeding, while Attorney holding Gen- designated jurisdiction, sending institution est of the prisoners. of federal eral for confinement habeas by writs of transferred prisoners habeas involved a writ of Finally, Barth custody are still corpus ad testificandum Writ), (the subjiciendum Great corpus ad original commitment of” the “by virtue writ of before us concerns a while the case habeas The writ of intuitive sense. makes corpus ad testificandum. habeas necessary only is corpus ad testificandum custody already is prisoner because distinctions, we of these light elsewhere; prisoner kept is confined us from prevent that Barth does not find essentially be testifying com when is deciding prisoner that a who has been commitment; any custody Attorney previous of the Gen and mitted to cause of the eral virtue of a conviction is still in the during prisoner time which the is confined custody Attorney of the General virtue satisfying the under the writ counts toward purposes of that conviction for the of Sec inter prisoner’s original sentence. Courts pursuant 751(a) tion when he is transferred “custody” preting the term corpus ad testificandum to a writ of habeas cases of habeas involving writs cases63 64 designated by in an institution confined flexibility re corpus have demonstrated custody Attorney General for policy sponsive to such considerations prisoners. Policy federal considerations Indeed, at least two sense. common interpretation support at least broad have in effect come judicial other decisions jurisdiction 751. The from which Section we reach.65 to the same conclusion prisoner brought pursuant to a writ of judge’s instructions Although the trial corpus significant habeas has interest holding, sense of our general matched the preventing prisoner’s escape from custo of the in- recognize portions we that some dy. recognized This interest has been in an confusing structions on this matter were analogous situation the drafters of the might province have invaded the (IAD), Agreement Interstate on Detainers assume, however, We such jury.66 serving provided prisoner who when a deficiencies in will be cured jurisdiction brought a sentence in one the instructions jurisdiction another for trial of- on another on remand. Court, (g) purposes See, g., Hensley Municipal For all other than that e. v. temporary custody provided 345, 1571, (1973); in this U.S. 93 S.Ct. L.Ed.2d exercised, agreement Rowe, 1549, Peyton shall be 391 U.S. 88 S.Ct. deemed to remain in the (1968); of and sub- Cunningham, L.Ed.2d Jones v. ject jurisdiction sending State (1963). U.S. 83 S.Ct. 9 L.Ed.2d 285 any escape may temporary custody be with in dealt the same manner as an 61; Viger, supra 65. note Tuck- United States v. original place imprison- from the States, supra er v. United 61. also note See any permitted ment or in other manner Hall, (4th v. 451 F.2d 347 Cir. United States law. 1971). Detainers, Agreement Interstate on Article V(g), U.S.C.App. (1976). 18 example that is the court’s instruction 66. An Bailey prisoners appellants and Walker See, Rudinsky, such as g., e. United States v. custody today of the Attor- (6th “are still under 1971) (prisoner work F.2d 1074 Cir. on they happened ney regardless States, of how release); supra General v. note Chandler United 908; States, brought 13, District of to be into the Columbia 378 F.2d at Read v. United 1966) (prisoner Jail.” Tr. 800-801. F.2d 830 at recreation away institution); from Frazier v. United States, U.S.App.D.C. F.2d 745 (1964) (prisoner institution). hospital outside seem to my colleagues do not Although III effectively bouleversement it, this realize iss raise other also Appellants necessi- of duress and abolishes the defenses a

ues,67 light grant of our decision to but in embodied in salutary standards ty, and erroneous of the ground trial on the new vague, ex- places it In stead them. their it we find unneces “escape” instructions on con- essentially deterministic panded, and questions.68 these other to discuss sary “voluntariness,” “intent” and cepts of and accordingly reversed are These cases how well- no matter just application, whose further District Court for to the remanded intentioned, fraught with diffi- obviously opinion. with this action consistent respectfully I dissent. culties. remanded. Reversed and I. THE FACTS dissenting: WILKEY, Judge, Circuit August hours of 26 early morning In the have compulsion claims of Traditionally, the District Columbia officers of standards; defend- governed by been strict that an es- Facility discovered Detention raise such issues required have been ants through a low-level effected cape had been the affirmative within the framework housing unit. A window in the Northeast-1 necessity, and these and defenses of duress prison- three check of the unit revealed defined, care- precisely have been defenses Walker —were Bailey, Cooley, and ers— subject proof. to strict fully hedged, and Bailey, serving a among escaped. those approach, the departure a from this time, radical had been years sentence of 23 is in- that even if evidence majority robbery holds at- bank in 1973 of convicted to make out a Walker, 15-year a matter of law serving sufficient as a tempted escape. defense, sentence, it must never- in 1973 of necessity convicted duress had been bearing, years, had Cooley, doing presented robbery. theless be bank May possession 1976 of way, on been convicted in in some nebulous and undefined unregistered firearm. and “intent”. defendant’s “voluntariness” motion made Despite length, the Rule 14 trial. It claims that its the dissent addresses by appellants. one of As the serve as a substitute the issues raised before trial cannot indicates, opinion appellants appellants 8(b) objection. raise sev- will court’s On remand Rule issues, 8(b) objec- of which eral other substantial some given Rule a chance to raise their unnecessary court to reach be- for the fashion, timely will court and the trial tion in being cause the case is reversed and remanded knowing precise nature have the benefit Since on the issue the dissent does address. inconsistency alleged if and of defenses of the reverse, it the dissent would affirm rather than prejudicial again the issue of considers when apparently would issues decide all these other joinder. against appellants, failure but the dissent’s argues Bailey that he was Appellant also any part concur in mention or even to prejudiced of evidence of the introduction other is curious. issues in these cases escape. prior This conviction conviction of custody allegedly of these other on a few Some comments for which he was was one Bailey may Appellants Bailey escaped, issues be useful. claims he but when severed their cases solely Walker seek have another prosecution could have relied alleged appellant Cooley that prejudice because robbery he was also which conviction —of —for conflicting de- from inconsistent custody, could have allegedly thus (Bailey assert and Walker fenses prior impact es- prejudicial avoided the jail, in the conditions were forced to leave requires cape Since the statute conviction. that, Cooley to condi- claims in addition while tions in the escapee have been in must Bailey jail, him Walker forced conviction, convic- virtue of pretrial leave). trial court denied custody when is in for which a defendant tion prejudicial joinder based on motion to sever long directly escapes as this relevant Fed.R.Crim.P., and refused to under Rule disputed. In the case on element change ruling evidence had its after the relies, Splet- Bailey appellant United States appel- appeal presented. time on For the first stipulated zer, supra had note the defendant joinder argument further that lants raise the confinement elements to the conviction improper was all three cases in the indictment open appel- This course is also the offense. 8(b), The Govern- under Rule Fed.R.Crim.P. Bailey on remand. lant 8(b) objection responds that Rule ment before was waived because it was not raised night.3 remained all that the smoke half and later and Walker were Bailey, Cooley, guards said that in the District Columbia The same apprehended November, September, out”.4 agents they FBI on burn “just let burn until them 1976,respectively. On 23 13 December of a fire on However, no evidence there was all three were indicted for November 1976 escape. day August custody, from a violation of The Assistant Opera Administrator of breach, 751(a), a viola- U.S.C. § tions at the facility, called to the stand D.C.Code, 2601. 8 March tion of 22 On Walker, defendant contradicted these alle trial commenced in the United 1977 a gations. acknowledged While he that there District for the District of States Court Northeast-1, had been small fires set Judge before District Oliver Columbia said that themselves set the inmates had Gasch. duty and that the the fires5 officers on had promptly extinguished them.6 After the A. The Evidence out, put fires had exhaust fans were did not dis- During trial the defendants air, from the turned on to clear smoke jail, but they escaped that had pute provided and medical attention was deal of evidence they great offered anyone found to be in need it.7 A correc their that establish contention tions officer who had been stationed in justified desperate in view of the condi- Northeast-1 the summer of 1976recalled pro- there. witnesses were tions Several week, that every fires were set in the unit incarcerated with de- duced who had been they lasted'only but five to seven testimony was offered to fendants. Their that, He minutes.8 testified to his knowl fires, frequent establish that assaultive edge, no permitted officer had ever a fire to officers, corrections threatening conduct burn acting extinguish without it.9 adequate and lack of medical attention combined to make conditions so unbearable by Guards 2. Abusive Conduct compelled that defendants were flee beatings elicited Testimony was also well-being. their own The basic issue in administered frequently not, is whether or and in what appeal stationed in officers mates corrections manner, have been instruct- should they inmate claimed Northeast-1. One ed to consider this evidence. in daily basis.10 Another on a place took of six or seeing group

1. The Fires reported mate Bailey with defendant guards attack seven incarcerated with prison inmates Several incident oc blackjacks mace.11 This unit testified in the Northeast-1 defendants curred, inmate, than more according to the frequently set there. One that fires were escape.12 Bailey’s three weeks before they every day.1 occurred inmate said that he had seen inmate also claimed long varied on how the fires were Estimates guard Cooley hit defendant in the face prisoner thought One allowed burn. hour,2 blackjack.13 this conduct while He said that they lasted for an another tes- also occurred in early August tified that lasted for an hour and a 1976.14 1. Tr. 150. 8. Tr. 354. 363. Tr.

2. Tr. 377.

3. Tr. 390. 10. Tr. 155.

4. Tr. 378. 11. Tr. 368. Tr. 380.

5. Tr. 203; 206. Tr. 373-374.

6. Tr. 209. 14. Tr. 382.

7. Tr. 236. provided by Walker history the medical were also the sub guards Threats testimony. prison closely questioned A about ject good of a deal of himself.19 When August er in had received testified that re- often medication had been how guards then beating by one of the who ceived, Dr. said: Bullock message to defendant told him deliver a We basis. have no This is a trial still guards Bailey effect that any had Walker evidence that Mr. —was testify him going to him and beat kill even an epileptic.20 se.15 ca ing in a court particular the time testified The doctor further the Assistant Administrator again Once on a medication trial period receipt of story: a different Operations told prescribing doctor in by the up basis is set found instance where have not [W]e case, pre- the medication was each and that were at- young either of these men one precau- merely as in Walker’s case scribed It has been the other by .anyone. tacked tionary measure.21 way in most cases.16 around Dr. Ka- Appellant also called Aris Walker re- that he had received acknowledged He ras, psychiatrist at the United States staff requiring the use ports of situations Leavenworth, Penitentiary Kansas. Dr. in in the section. by officers physical restraint had Walker at Leavenworth Karas treated “Mr. incident He described one coming after he had of seizures complained housing into the unit Bailey came back very sleep. was clear Dr. Karas attack on another resi- unprovoked made an actually had epilepsy about whether pulled . two officers dent . . [and] case: diagnosed Mr. Walker’s man, him.”17 Mr. restrained Bailey off make, per- Your Honor’s I want to during testified that A corrections officer mission, ... I did point one clear no August there had been month of of seizure disorder diagnosis not make a beatings by any corrections offi- of inmates nobody . witnessed [b]ecause cer.18 employees from the from the staff convul- only diagnosed . It was 3. Medical Attention Lack of history.22 sive disorder deprivation allegation of re- quired dangerous condi- medical care led jail principally by

tions at advanced was Testimony 4. Defendant’s appellant Seeking Walker. to establish Cooley Defendant testified that on the that he condition epileptic requiring had an escape, the correctional morning of the offi- frequent which was medication not ade- cell, to his duty opened cers on the door quately supplied, the defense called Dr. allowing him to leave. Once outside the Bullock, Samuel Chief Medical at Officer cell, Walker, Bailey and he encountered However, the New Jail. Dr. Bullock’s testi- allegedly who forced him to mony only established medication for threatening to kill him: epileptic control of seizures had been said, They my cell. I out of prescribed pre- [L]ike for Walker. It had been going kill gone you.” “You we’re infirmary scribed on a trial basis “Man, escaping.” They say, say, since I I ain’t ap- information available on “Man, pellant’s you’re your was that cell. We don’t “condition” contained out of 15. Tr. 154. 19. Tr. 438-439. Tr. 441. Tr. 20.

16. 255. 21. Tr. 458-459. Tr. 232. Tr. 22. Tr. 680-681. himself to their that he never surrendered going You’re out.” Just like you. trust seeing Cooley also denied custody. Walker that.23 escape. day the Later, however, Cooley testified that he left jail himself and that he did not know Instructions B. The at all.24 Bailey whether and Walker left the defend- At the close if he had ever made an at- When asked jury to instruct the court requested ants tempt leaving prison notify anyone after of duress —that the affirmative defense authority escape, about the he said that it could find is, jury that to instruct anyone not know to call.25 he did compelled to had been that the defendants Bailey Defendant also testified about that jail at the escape by conditions leading up escape. circumstances to his As In a conference justified. was such lying early morning he was in bed in the instructions, however, the proposed on the August, suddenly hours of 26 his door defense court ruled that the affirmative opened, jail. and he then left When defendants, duress was not available supply asked to the details he of how was to au- of them had surrendered since none leave, able to he claimed that he did not The court said: escape. after their thorities remember: authorities men notified the Had these I don’t even remember. It seems like I effort in an public or the defender just I have been blacked out ... might that surrender under conditions trying figure it out. I admit left I public defend- arranged by have jail. thаt There is no doubt about it. I er, permitted the du- then I would have swear to I left there . . . all I God fact, I argument. ress and condition say can just just is I don’t remember. I instruction, up which I drew here an have blacked out morning.26 that mind, I but very carefully, with that Fortunately, Bailey’s memory improved fol- I was that at the end of which realized lowing luncheon recess when he was cross- finding calling upon jury to make examined defendant After ad- Walker. make, say is to they couldn’t mitting testimony prior about in, men had turned themselves that these truthful,27 blacking out was not he went on the assertion prerequisite and that is a give So, escape. details of As was of the defense of duress or coercion. hall, walking down unit he discovered for that reason I decided that I had responsibility myself.30 window in Walker’s cell had been assume the removed; he entered the cell and climbed rejected therefore defend- The Court already down some bed sheets hanging and instructed proposed ants’ instruction escaping from the After he made window. as follows: no himself to the au- effort to surrender a matter of law You are instructed thorities.28 the District of Colum- that conditions testimony quite center, Defendant Walker’s no bia Jail or the new detention conditions complaining brief. After about restrictive an burdensome or matter how be, that after his jail, may he asserted find them to individual inmate proper charges authorities. in this he had contacted are not a defense to the “kept case, justification that he a con- the commission Specifically, he said nor escape. the offense of with the FBI”29 but admitted rapport stant 28. Tr. 563-564. Tr. 406. 24. Tr. 424—425. 29. Tr. 710-711: This assertion of “constant rapport” was contradicted on rebuttal (Tr. special agent responsible 25. Tr. 408. FBI for the case. 730-732). 26. Tr. 550. 30. Tr. 778-779. 27. Tr. 559. The Verdict C. group of in- particular inmate

If been treated feel that have mates found each On March correction of unfairly, they may seek custody. guilty of defendant system, conditions in the court but those instructions, the Pursuant the court’s to to commit the of- they are not entitled was not charge of breach alternate to take the law fense of or seek reached a jury considered the after by their hands. into defend- verdict on the count. Each Now, the the defend- permitted court years to a term of five ant was sentenced ants to introduce this evidence and to consecutively prison, be served following their escape seek to show that already imposed. appeals These sentence in, one, if for they turned themselves followed. in, turned himself escaping, after has then the defense of coercion duress brought attention of the

may be to the ISSUES II. THE defense, as a if defendant jury but appeals raised in these issue basic in. turns himself manner, jury the whether, in what and Now, procedures recognized there are de- to consider instructed should have been done, protec- requisite this to be and fires, assaults regarding fendants’ evidence action. the tions insured such As inadequate and medical by prison guards, evidence, the court heard that the attention. The defendants contend in this case. the court felt that done So jury should have been instructed on upon it was incumbent the court to as- permitted of duress and affirmative defense responsibility аspect for this sume to consider the evidence connection case, and to take it out of case in However, majority holds defense. So, you effect. are not consider the that, regardless of whether the evidence defense duress or coercion the rea- a matter of law to make was sufficient as sons stated. The defendants did not turn duress, it defense out an affirmative in.31 themselves jury as submitted to should have been Thus, jury judge did not foreclose con- and “voluntariness” relevant to the “intent” altogether; this sideration of evidence escape.35 elements of the crime out the duress defense. simply ruled Thus, determine whether order to addition, Bailey urged defendant instructing as it jury trail court erred in jury court to instruct the from did, must be addressed: questions three crime, “specific was a intent” required to prove that the Government was defend- Was adduced 1. the evidence specifically that defendants intended for an basis provide ants sufficient to confinement at permanently avoid the time instruction on the defense duress? reject- from The court they escaped jail.32 Apart availability 2. proposed in- ed instruction instead defense, the evidence have duress should jury that a structed defendant “es- jury as expressly submitted if he capes” “without authorization did ab- de- bearing the “voluntariness” of the on from place sent himself of confinement” fendants’ actions? “general that this offense was intent ex- 3. the evidence have been Should crime”.33 The court further instructed the bearing on precise meaning “general pressly submitted to jury escape? intent”.34 the "intent” element crime of added). (emphasis Tr. 31. 806-807 34. Tr. 799-800. - -, -, Majority Opinion Tr. 773-774. at U.S.App.D.C., at of 585 F.2d. 802; 33. Tr. After a consideration of the duress de-

III. THE DEFENDANTS’ DURESS require- general, fense in I turn first to THEORY custody, prompt ment of return argue Defendants the trial court immediate over- requirement then to the by rejecting committed reversible error powering compulsion to establish the duress proffered instruction on the defense du- one, both, requisites are defense. Not but by refusing permit ress and undeniably missing in the case bar. consider, defense, in connection with such a fires, regarding assaults in General Defense A. The Duress prison guards, inadequate medical care. per- to the acts Where the evidence generally While it is true that a defend- largely undis- formed the defendant an ant is entitled to instruction on his theo- jail from the puted departure the —as properly requested the case when it is ry of essentially each here—there are defendant counsel,36 is well by it settled that in- an in criminal law. two kinds of defenses given not it struction should if lacks type negatives guilt by One of defense can- support.37 In a in evidentiary case which celling required out the existence of some presented attempt evidence has been in an element of the crime—either the actus reus defense, to raise an affirmative the trial or the “intent” element. For mis- example, duty of determining court has the whether fact, intoxication, take of insanity are sufficiently supported by issue is designed defenses to establish that the de- place evidence to it jury.38 before the fendant did not have the “intent” element When the evidence fails to establish the required charged.40 for the crime dеfense, there is no factual issue to be The operates second kind of defense by jury, decided and the instruction is entirely an principle. different It does not properly refused the trial court as a negative any element of the crime but in- matter of law.39 goes stead to show some circumstance of justification excuse or which is deemed a

The evidence here failed on at least two bar to the imposition liability; of criminal grounds, law, as a matter of to establish the is, goes it to the matter of criminal First, although defense. the defendants of- responsibility. fered much describing conditions which allegedly compelled them to escape, Traditionally, duress, compul- claims of that, it standards, is clear previous all sion, necessity are treated as defenses the requisite degree of compulsion was not type.41 of the latter Under the classic “du- Second, shown. the evidence failed to show defense, ress” a defendant will be excused that any of the defendants turned them- committing from an otherwise criminal act selves in to escaping authorities after those if he compelled perform act by conditions. The trial court specific made a person. unlawful threats of another finding that lack of evidence on point First, defense has three elements. placed the duress issue in such a factual order to excuse the commission of a crimi- posture could not properly be act, decid- nal present, the coercion must be immi- ed by as a matter of law. It nent, impending and of such a nature therefore refused to submit the defense to well-grounded apprehension as to induce a the jury. Second, of death or bodily injury. serious States, U.S.App.D.C. Glassel, Brooke v. United supra; 39. United States v. United 19, (1967). 385 F.2d 279 Ramsey, (2d 1967). States v. 374 F.2d 192 Cir. g., Waskow, 37. E. United States v. 519 F.2d Scott, 40. W. Handbook on Crimi- LaFave & A. (8th 1975). Cir. (1972) nal Law 8 ‍‌‌​‌​‌​‌​​‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​​​​​‌‍at 46-47 cited [hereinafter as LaFave & Scott]. Glassel, 38. See United States v. 488 F.2d 143 (9th 1973), denied, Cir. cert. 416 U.S. Id. §§ (1974); S.Ct. 40 L.Ed.2d 292 United Teeslink, 1970). States v. 421 F.2d 768

HU great- those terms produce thus opportunity there no to avoid must be For harm. reasons the defense finally, equal And er amount threatened harm. will re- taking if the harm policy, of social may justify never be raised to great- law is with the compliance from innocent life.42 sult from violation which will result er than that de- basis for the duress theoretical violating it. Under it, justified excuse; though act is con- fense circumstances, to have the he is said such the actor is not held re- wrongful, sidered necessity.43 The rationale defense he has the best sponsible because taken person, necessity not defense of action in a situation possible course of circum- pressure faced with the when severely has cur- which his “free will” nature, lacks the mental state stances of Thus, entirely tailed eliminated. but Rather, requires. it is that which the crime is not that the rationale for defense public requires interest the selection of defendant, unnerving faced with the threat of two the lesser evils. does act which vio- of harm unless he language lates literal the criminal Necessity distinguishable is usually law, capacity somehow loses his mental emergency duress because situation Rather, question. it is commit the crime evils'is compelling a choice between caused that, a defendant has the mental although coercion forces of nature rather than requires, state which the crime his conduct beings. other human commentators Some which literal language violates the suggested that is the real have or justified criminal law is excused because between difference the defenses.44 Others thereby greater he has avoided a harm of conceptual that there are dif- claim further Thus, magnitude. of duress defense ferences between two. Whether utility rests on the social of a defendant’s distinct, have actually they are actions of evils. when faced a choice commingled in case law.45 The hopelessly A, gun, For if with a example, hybrid armed been the of a development result has B with immediate unless B “duress-necessity” threatens death defense— defense —a car, larceny steals B is not guilty C’s retains the features of the du- basic whole society defense, because it is better as a encompasses com- ress but which (commit that B do the lesser harm arising from forces in pulsion natural addi- larceny) acquiesce greater than in the harm persons. coercion For con- tion to other (his life). hand, own loss of On the other if venience, will the term defense” be “duress A threatens B with unless immediate death referring in to both clas- used hereafter C, B kills B will not be excused of homicide hybrid duress-ne- sic duress defense and the C, if he necessarily kills since it is not better defense. cessity for society that B kill C than that A kill B. Custody Requirement in B. The Return apply The considerations to the de- same Escape Cases pressure

fense The of natural necessity. in defense has physical person forces often confronts a In cases the duress the courts. special problems posed with a choice between two emergency carries within person may Recognizing evils: violate the defense either even potential disorder in germ literal of the criminal law and thus terms itself the cases, result, produce may comply ordinary courts have been concerned a harmful or he States, Note, Escape—Necessity g., as a 42. E. United F.2d De- Shannon v. Prisons — 49; 1935); fense, (1972). § LaFave & Scott 37 Mo.L.R. 550 Perkins, 1964) (2d Law 951-54 ed. Criminal cited as [hereinafter Gardner, Necessity Perkins]. 45. See Defense of Step Right Escape from Prison —A To- 50; 43. LaFave & Scott Perkins at 956-961. § Assault, Incarceration Free From Sexual wards (1975) 49 So.Cal.L.R. cited [hereinafter Note, 44. LaFave Scott & See Duress— Gardner]. Prisons and Defense to Prisoners —Duress is a (1974); Escape, a Prison 43 U.Cin.L.R. 956 prehended yards a few application prison. from the that its casual cases prison discipline could subvert and endan- defense of duress was raised at When the ger personnel. Moreover, corrections trial, courts the court refused to instruct that, recognized have cases more holding In it. the defense was cases, types than in other the defense is defendants, available to the Court particularly susceptible manipulation by Appeals set forth five conditions that must unscrupulous. the shrew and already There established before defense could be exist among powerful inmates incentives to jury: submitted to the escape; prison population generally proper hold that [W]e individuals; composed of recalcitrant necessity rule defense of is that a limited рrison circumstances of life are such that at following is available if the conditions colorable, credible, least a if not claim of (1) exist: is faced with a necessity duress or can be raised with re- death, specific forcible sexual threat of spect virtually every escape, disproof bodily injury in the attack or substantial quite of such claims can be difficult. Final- future; immediate ly, in weighing the prison interests of the (2) complaint to There is no time for a against inmate society whole, those of as a a history there exists authorities or the courts have society realized that has an futile complaints which make result especially compelling interest insisting complaints illusory; from such that prisoners serve their full and uninter- (3) opportunity There is no time or rupted sentences, precisely since it is upon courts; resort to the the ineluctability punishment of such (4) There is no evidence of force or penal system and, effectiveness of the violence used towards personnel or turn, the safety of each depends. citizen other persons “innocent” in the escape; considerations, view of these the du- ress defense has been more carefully (5) prisoner immediately reports hedged subject proof to stricter in es- to the proper authorities when he has cape cases types than in other of cases. To position safety attained a from the prevent either before-the-fact fabrication immediate threat.47 by groups of inmates or after-the-fact con- struction to punishment, avoid the courts requirements The first of these corre- have set down strict standards which must sponds applicable to the rule to duress cases be met before the is defense available. general compulsion must be present, impending imminent and and of comprehensive

The most explication of well-grounded such a nature as to induce a these provided standards is People apprehension of immediate death or serious Lovercamp,46 escape an case in which the bodily injury. danger California If threatened is Appeals Court of considered the immediate, not availability There, defense is not availa- duress defense. two ble.48 The defendants defense is reserved for back-to- had been threatened re peatedly by a the-wall group requirement of inmates situations. This has sought who to force them perform adopted by every to been lesbian acts. court that has con- When their complaints availability sidered the author defense ities response elicited no escape cases. Accordingly, the courts have again threatening confronted group uniformly agreed that prison conditions that promised them, alone, to return gang rape no matter how intolerable and inhu- they fled. They were immediately ap mane, justify do escape.49 excuse 823, Cal.App.3d 110, Cal.Rptr. 46. 43 g., Dempsey States, 118 69 49. E. v. United 283 F.2d (1974). A.L.R.3d 1960); State, Grubb v. 533 P.2d (Okl.Crim.App.1975); Hinkle v. Common- Cal.Rptr. (footnotes omitted). 47. 118 at 115 wealth, Ky.Law Rep. 66 S.W. 816 g., Green, (Mo. 48. E. (1902). State v. S.W.2d 1971), denied, cert. 405 U.S. 92 S.Ct. (1972). 31 L.Ed.2d 806

H13 essentially two reasons for in- There are set requirements The second and third general rule Lovercamp forth in reflect precedent return as a condition sisting on thаt the defendant must have exhausted all is accepting a defense of duress. The first threat- avoiding reasonable means requirement The “return” policy reason. Thus, escapee’s harm. an claims of ened mitigate special some of the designed rejected if he compulsion must be could attending application of the du- problems danger by resorting have avoided to admin- It meant to escape cases. ress defense in prison, istrative remedies within the of the defense to those application narrow seeking judicial again, intervention. Once fear of death or serious genuine who are in generally have requirements these they otherwise have bodily harm because adopted by the courts.50 they must by escaping if nothing gain requirement The fourth enunciated in immediately. In this surrender themselves Lovercamp gen- is a stricter version of court observed: Lovercamp regard the never the tak- eral rule that duress excuses Thus, meaningless to the defense becomes ing innocent life. The added strictures it as an one who would use excuse response recognition are a to the fact that depart custody from lawful and thereaft- escape of the defense in cases increases the go merry way er relieved of re- his physical injury person- risk of to corrections sponsibility unseemly departure. for his nel well as to other du- inmates. Most escape A cannot from a threat of ress-escape cases that have reached the death, however, signifi- homosexual attack or other courts, have involved non-violent and, escapes, consequently, few have bodily injury courts cant and live the rest explicitly adopted requirement, but it life an an ironclad defense to recognized by has been Cir- Seventh charge.53 cuit.51 second, important, and most reason The fifth of the duress de- requirement conditioning availability of the du- Lovercamp obviously fense set forth in escapee’s on an return to custo- ress defense significance decisive in this case. It re- dy relates to the nature of the crime of quires escapee report immediately statutes, many itself. Under proper authorities once he has attained a crime; “continuing” has been held to be a position safety. Lovercamp In the case is, complete is not when the offense itself the defendants all ele- had established initially departs escapee ments of the duress defense but this final long but continues as as he remains at however, requirement; “return” the court Thus, statutes, large. under these even incapable found the issue of resolution since though prisoner may originally a have apprehended had been immediately on justified departing custody, from if he their departure. Lovercamp deci- Since large, thereafter remains at his continued sion, requirement this “return” has found custody unexcused absence from constitutes increasingly among wide support courts escape. Accordingly, the crime of if a de- considering cases, duress-escape including presents justifying fendant evidence only 1977 decisions the Ninth Circuit and the District of Appeals.52 Columbia Court of his such departure, initial evidence would— g., Dempsey States, E. v. People United (D.C.Ct.App. 1977); v. Hoc 283 F.2d A.2d 1374 quard, People Hocquard, (5th 1960); 331, v. Mich.App. 934 Cir. 64 64 236 72 N.W.2d 331, Worley, Mich.App. (1975); Mat (1975); 551, State v. 236 N.W.2d 72 265 220 S.C. State, Wester, People thews v. (Miss. 1974). See (1975). 288 So.2d 712 S.E.2d 242 v. 237 232, Cal.App.2d Cal.Rptr. (1965); State 46 Palmer, Nix, 308, v. Terry United States v. (7th 45 Del. A.2d 442 501 F.2d (1950). 1974). Cir. Michelson, Cal.Rptr. 53. 118 52. United States v. 559 F.2d 567 States, 1977); Stewart v. United escape the duress defense to the crime of an insufficient de- of law—be as a matter circumstances, fense, would fail to excuse his sub- the Court proper since it under exonerates sequent continued absence. duress recognizes also custody, from and not departure statute, escape 18 U.S.C. The federal the continued absence. a unquestionably statute of this § reason, escape will not be For appeals have consist- type. The courts escapee if the reason of duress excused surprise, to be so.54 It is no ently held this authorities im- proper fails to then, Circuit case submit that in the recent Ninth Michelson, attaining position mediately after the “return” of United States safety. failure to submit to requirement expressly was held to be a The inmate’s availability following allegedly precondition proper to the of the du- authorities escape escape ress defense in federal cases.55 coerced amounts to an unexcused escape. commission of the crime of Michelson, defendant-escapee was Therefore, escapee when an fails to sub- charged escape years arrested with two authorities, proper mit the asserted departure after his unauthorized from rejected duress defense must be because penitentiary in which he U.S. had been negate as a matter of law it does not serving 22-year sentence for armed rob- custody. continued absence from bery. attempted At trial the defendant defense, presenting Similarly, interpreting raise a duress prior cases fight statute, that he 751(a), had had a violent another Section have found inmate; fight, that as a result of the custody absence from con- continued hospitalized days, for several while the escape. stitutes the crime of placed solitary other inmate was confine-

ment; that the other inmate threatened to case, In this we need not and do not him; kill escaped and that the defendant decide whether defendant acted out of day the same the other inmate was released report escaping. duress in His failure solitary confinement. The trial court proper during to the authorities his near- refused to instruct the duress ly years following two of freedom challenged defense. Defendant his convic- Penitentiary from McNeil Island ground tion on the that the trial court erred precludes jury of the assert- consideration granting in not the instruction. The Ninth ed duress defense. Whatever the merits court, Circuit affirmed the specifically trial defense, of the asserted duress it did not holding under 18 U.S.C. 751 is license absence from custody. continued continuing escapee offense and that an must turn proper himself in to authorities prerequisite availability We that the trial court did not conclude duress defense: refusing give requested err in du- Although may duress excuse the in- ress instruction because defendant’s mate’s departure, does not absolve his failure to submit to after attain- custody. continued absence from In oth- ing position safety.56 of words, may er while coercion shield the

escapee imposition considering availability from the of additional courts State punishment, not cases have does commute the sen- of the duress defense Thus, previously imposed. Lovercamp requirements, tence while also deemed recognizes availability including requirement, Court of the “return” a cor- States, Michelson, (4th 1968); 54. United States v. Chandler v. United 559 F.2d 668 567 Cir. Spletzer, (9th 1977); (9th 1967). United States v. Cir. 378 F.2d 906 Cir. (5th 1976); United States v. Join F.2d 950 Cir. er, denied, (5th Cir.), cert. 496 F.2d 1314 55. 559 F.2d at 570. (1974); U.S. S.Ct. L.Ed.2d 278 Chapman, United States v. 455 F.2d 746 added). (emphasis Id. at 570-71 1972); Coggins, United States v. 398 F.2d matter law been established as a not the law.57 The Lover- statement of rect evi- by the record. No supported amply “mini- been termed have camp standards that to show was adduced dence whatsoever be satisfied which must mum conditions” they in after themselves defendants turned is available58 the duress defense before alleged danger they exist- escaped had may the defense be it has been held that Bailey Cooley admit- ed. Defendants “where by the trier fact considered attempt to call that did even ted showing prima there is a facie though escape, after the authorities . every one of the support to each rap- Walker claimed “constant defendant elements.”59 FBI,” port there was no evidence with States,60 a District In v. United Stewart attempted arrange to surren- that he ever case, of duress was the defense Columbia short, In the defense evidence der. halfway who of a house raised an inmate lacking as the essential “re- completely to community at the from the failed to return prop- and the trial court requirement, turn” prosecuted and was es- required time jury’s from the the matter erly excluded 2601. The de- cape under D.C.Code consideration. he had been abducted fendant claimed that once argue Defendants halfway to the house and returning while danger, he should not escaped has He feared fleeing his abductors. shot while of that to the source expected to return he would be a to house where to return again in himself harm’s danger place assailants. When he “sitting duck” for his believe Presumably defendants way. house, he was telephoned halfway told go to escapee is entitled henceforth an in, he waited a month to turn himself but merry permanent with a and ironclad way doing affirming so. and a half before completely ignores position defense. This ruling that such facts did the trial court’s is available rule that the duress defense defense, the District of not make out a valid is no reasonable alterna- only when there that, held when Appeals Columbia Court a prison- the law. tive to violation of Once a defense is raised such escapes er the immediate threat of death establish that he the defendant must injury which he was bodily serious custody to once returned immediately and is at allegedly confronted longer was no imminent. threat harm open virtually an infi- large, he has to him after the A failure to surrender oneself alternative means variety nite of reasonable dissipated has must be viewed as threat in the he can avoid these threats by which the intent to escape accompanied violating the further law future without custody. See United States elude lawful turn, can for exam- remaining large. He 1972). (5th Cir. Chapman, 455 F.2d 746 agencies, to ple, community, public to assuming initially . Even services, legal public private politi- of immediate death he acted out of fear cians, groups private or other to church proffer bodily injury, the failed or serious position take that are in organizations injury re- that the threat to establish him from necessary protect the action fear of and that his mained imminent danger once he returns custo- untoward during that time harm was reasonable duty escapee, on the imposes The law dy. immediately returned period, legitimate or that he means free, pursue these once self-help alleged redress, pursue once the threat had rather than criminality. dissipated.61 through continued apprehensions ruling generalized present escapee’s In the case the trial court’s An may not self-protection legal means that the defense raised defendants had 52, (D.C.Ct.App.1977). See, 1374 g., 60. 370 A.2d at note 57. e. stated cases cited supra. (emphasis added). 61. Id. at 1377 Worley, 58. State v. 220 S.E.2d at 243. People Hocquard, 236 N.W.2d at v.

1116 have no evidence what- defendants adduced be as efficacious as do not illegal means justify excuse or his justifying continued absence ever their continued absence custody. from Each at moment he remains custody. It from is fundamental that large actively he breaking the law. To given if it instruction should not be lacks justify excuse or his on continued absence evidentiary support; evidence fails when then, the basis or compulsion, of duress defense, is no factual establish there must some adduce evidence that the dan- jury, issue to be decided and the gers originally escape which his impelled properly refused the trial instruction remain imminent and that no alter- there is as a matter Clearly, court of law.62 native for him protect means himself trial court in withheld the properly this case dangers from except by remaining these at instruction. duress large. opportunities of the various Because avoid this majority The conclu- labors redress, have for it is al- fugitives by resorting patently sion frivolous to a impossible most to conceive of circumstanc- argument concerning scope of the in- es escapee under which an could make a in dictment and instructions this It case. jus- showing that his continued absence was escape dissects the crime of into sepa- two however, may, tified. Be that as it the fact first, rate and distinct activities: unauthor- is that defendants case have instant and, departure custody, second, ized from attempted even to justify their contin- unauthorized continued absence from custo- ued circumstances, absence. Under these dy. “separate” It then treats these activi- the duress defense is simply not available to offenses, “separate” contending ties as them. properly the defendants were not indicted majority acknowledges that for the distinct crime continued absence crime of escape under 18 751 U.S.C. is a custody from the indictment because refers “continuing” It offense. further acknowl- “flee[ing] escappng]” about “[o]n edges that feature this of the crime has 26, August 1976” and that trial court given rise to the substantive rule of law “emрhasized the notion offense that duress is available as a defense in place took jail when left the [defendants] escape only escapee cases where an has August Concluding on 26.” that defend- adduced (1) evidence either that he immedi- “were being leaving ants tried ately surrendered to proper authorities jail August failing and not for upon position attaining safety from the date,” return at some majority later threat, (2) immediate that his continued precluded asserts the trial was court absence justified from because relying from continuing on the nature of (a) the dangers impelled that originally grant the offense in refusing to a duress escape (b) remained imminent there instruction.63 were no pro- alternative means for him tect except himself from these dangers fatal flaw majority’s argu- remaining large. Having acknowledged ment is that it initial-departure treats the these points, two the majority logi- cannot aspect and the continued-absence cally avoid the conclusion—the inexorable aspect separate as two acts and conclusion—that defendants this case not; They two distinct they offenses. are entitled, law, were not as a matter of necessary aspects are one act—one sin- duress instruction. gle criminal As the transaction. trial court case,

In the place, first defendants admit instructed con- custody; did not return to there is no “absenting” custody. sists in from oneself factual dispute place, on this. In the second Obviously, in oneself order to absent Waskow, g., Ramsey, (2d 62. E. United States v. United States v. 519 F.2d 374 F.2d 192 Cir. Glassel, (8th 1975); 1967). Cir. United States - denied, 1973), Maj. Op. U.S.App.D.C., 488 F.2d cert. of 190 1100- (1974); U.S. S.Ct. 40 L.Ed.2d of 585 F.2d.

1H7 Compulsion Require- Immediate C. The depart custody. custody, one must from “departed” Similarly, one cannot have from Escape ment in Cases having actually remained custody without justified refusing in The court was trial appreciable pe- from for an absent on the duress defense jury to instruct the absenting riod. The act of oneself majority The reason. does for still another ini- custody necessarily only entails not of not, cannot, validity deny also the main- tial severance control but de- duress requirements traditional appreciable tenance of that status for of im- on threat predicated fense must be time, whether that be one minute period of bodily serious harm and year. death or or one hour or one mediate opportunity to was no showing that there pro- trial not The fact that the court did words, harm—in other avoid the threatened explication with a full jury vide the is reserved for back-to-the- aspect that the defense offense” of the crime “continuing significance in this really without presented by wall situations. certainly case is not relevant to the plainly did not meet these re- defendants majority’s majority’s argument. The com- quirements. precluded jury plaint is that the trial court Cooley only was the one of the defend- and held consideration of a duress defense actually he had been claimed that ants who was a matter of law that defense immedi- escape by any compelled to form However, majority con- unavailable. However, repudi- even he later danger. ate cedes that if the court had instructed he had ated and testified jury this claim fully “continuing as to the offense” aspect escape, properly then could have to leave the indeed not been forced held as a matter the duress of law The conditions de- Bailey. Walker and thereby defense was unavailable and have could witnesses defense scribed other precluded jury consideration the defense. seriousness, hardly found to establish Why simply the result should be different ‍‌‌​‌​‌​‌​​‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​​​​​‌‍danger re- imminence immediacy, and because one case the trial not court did Walker’s com- out duress. quired to make fully “continuing illuminate the offense” being adequately not plaint that he was aspect of the jury offense and in the even self-diagnosed epilepsy, treated making other case it did? The jury not pre- though drugs had appropriate been on availability decision of the de- scribed; complaint general the defendants’ case; fense in either making the court is been, past, intermit- that there had the decision in both cases a matter of unit, housing though tent in the even fires law. amount of conveyed information there was no evidence that defendants’ im- to the therefore irrelevant endangered propriety had ever been safety of the trial mediate legal court’s decision. fires; general and the defendants’ these The fact that the trial court in this case subject had complaint been did not fully explain “continuing of- by prison guards, even past “assaults” fense” nature of had one real of an “as- practical though there no evidence effect. It deprived insights that would made have it easier to “threat” sault” even utterance fact, convict defendants. if the jury had three weeks of the approximately within fully been instructed of- continuing present the back-to- escape, simply do not aspect escape, fense it would have been to make out a necessary the-wall situation acquitted irrational for it have defend- duress defense. ants, light of the fact that defendants Similar, compelling, com- even more remaining admitted at large and failed rejected by the repeatedly have plaints adduce evidence to justify their contin- Indeed, I invite of cases. courts scores ued absence. words, In other the trial case, majority to one federal cite alleged courts’ omissionwas only unpre- state, type have been in which claims of this judicial defendants, but in fact affirma- tively benefited raise a duress defense. them. sufficient to deemed sleepwalks prison if he out the or if gate, unable or majority

The is to do so because the prison- other physically carried out complaints clearly defendants’ fall far short he is ers, of the then reus crime danger immediate the actus the severe and neces- prisoner does not because the sary a duress exist warrant instruction. The So, performed has not a volitional act. refusing trial court was correct in plainly “voluntary” the term is used as mean- when theory instruct the jury defendants’ “volitional”, performed du- ing acts under the case. acts; “voluntary” are even ress considered though they products free IV. THE are not the of the MAJORITY’S will, they products are nevertheless “VOLUNTARINESS” course, majority THEORY Of use will. does not in this “voluntary” the word sense. that, Thе suggests majority regardless of presented by whether the way evidence defend- in which the term “vol- The second ants was untary” sufficient as matter of law to is to exercise of used refers will, make duress, out an mere exercise of affirmative defense free rather than context, it is be should have In an act said to been submitted to the as will. this will relevant to of an actor is “involuntary” the “voluntariness” of defend- where pressure ants’ (vis com- Finding subject actions.64 to such “voluntari- coercive overborne, ness” ) is necessary pulsiva “element” the crime that it and the actor is of escape, majority —“against that the concludes his own will”-—choosesto violate trial Thus, court in precluding jury obey erred consid- law rather it. for than eration of example, defendants’ evidence medical is prisoner gunpoint if a forced at inattention, assaults, will”, “against fires. to walk out of his own “voluntarily”. he has not is in then acted It “voluntary” term frequently is used “free this will” sense that the uses majority in two ways different in the criminal law. “voluntary,” the term and it is in this sense sense, one “voluntary” term has the term used will be in this section. been used meaning “volitionally”.65 Ac- majority unquestionably is correct cording to usage, a “voluntary” act it says when that “voluntariness”—free means only act product that an is the a necessary will—is element in the crime of will, actor’s regardless of whether that will necessary all escape, it is a element in is freely exercised. An act “involuntary”, Anglo- crimes. precept true It is a basic then, where the actor’s body is moved American law that the exercise of “free” overmastering (vis physical absoluta) force responsibility. will is essential to criminal or where the actor’s movements are a reflex A person deprived who has been of “free” or convulsion, are performed during or un- compelled against will and has been to act consciousness,sleep, hypnosis. type This responsible his will held should not be “voluntariness”, properly more called punished for his actions. “volition”, is treated under the rubric of reus, actus physical present case, element crime. ma- respect With If a defendant’s movements are not position simply voli- jority’s this: the defend- tional, if they are involuntary, fires, assaults, then regarding ants’ evidence are not sense, “acts” in the proper and medical care bearing have some on whether Thus, hence there is no actus reus. the defendants exercising “free will” example, if a has epileptic therefore, fit they departed prison; when during which falls prison wall, over the the evidence should have submitted to Majority Op. ‘voluntarily,’ at-of U.S.App.D.C., or his intent to avoid confine- at (Emphasis Maj. supplied.) “[A] of 585 F.2d: can ment.” consider See also conditions, jail threats, whether Op. at-, U.S.App.D.C., -of at presented by appel- and violence such as that of 585 F.2d. lants in the District Court raises reasonable concerning doubts capacity defendant’s act 749; Perkins LaFave & Scott at 179. above, might presumed compul- “voluntariness”, jury on the issue of is a defense in all necessity valid though not make out defense sion even it did cases, hedged about but the doctrine of duress. law, rules of and is positive with certain utterly It is position is untenable. This in clear cases. somе recognized only that, this, such law cases black-letter recognized it not at all. instances “voluntariness” are to be raised issues of through the affirmative defense of duress. a act on the to criminal In order excuse he a asserts that was de- When defendant necessity, one ground of or compulsion act prived of will and did not “volun- free apprehension under have acted must compelled he was to tarily” because violate death, or of se- impending and imminent or the law either force of circumstances bodily harm.66 rious and immediate he persons, the threats of other then the these within frame- must raise observe: matters Other commentators why the This is I work of duress defense. be or responsibility, it civil crimi- Legal my colleagues the that did stated at outset To a contract nal, implies freedom. make the seem to realize radical revolution not partic- requires the free acts of the in law into law-—a writing boule- socially doing repre- of a ipants, and the reality abolishes the salu- that in versement excusable, legally where act is hensible gov- tary standards that heretofore have find, a free We agent. actor was not necessity. the defenses of duress and erned therefore, precious most that where that commodities, will,” stolen, “free all The doctrine of has been fashioned duress its law has hastened erect doctrine precisely dealing issue of free larceny. of duress mark will. As Professor Burdick writes in his heart, has, its law: Criminal duress treatise criminal law, criminal principle of freedom. The willing crime a or every requires Since wisely not, postulated or has itself mind, may voluntary it be a defense to agents has fixed world of free-will-ed was charge criminal that the criminal act most upon action classes responsibility for but voluntarily was committed actors, those who have “acted except coercion, or necessi- compulsion, result of compulsion.” under As Lord Mansfield: “When- ty. said attitude are man to such an necessity ever forces a do The merits of act, it, an act him commits under illegal person forces to do clear. If [whatever] him, for the act can- compulsion, responsibility man can be justifies because no since, effect, it ascribed to him guilty of a crime without will not be desire, motivation, or his or the mind.” Blackstone has was not own intention of will, to the act. Punishment of species said: defect of will is which led also “A compulsion and inevita- actor would be misdirected futile arising nor These it deter neither him oth- necessity. ble are constraint since would ers, that all were upon whereby urged the will a man is should it be case do compelled do that which his acts outside judgment disapproves, equally Thus, presumed, (if which the law has it is to will their own control. itself) As it shown reject. punish- left would reasoned that where can be compulsion are under a which ments therefore inflicted for the a man acted will,” deprived abuse of that free which God has “free such an will him of his man, responsible given highly just equita- it is not be held individual would This, essence, ble that a man excused for is the think- should be for his act. through acts are una- the formulation of ing those done lies behind doctrine. compulsion”. voidable force and the criminal duress excusе, had of Lord “duress” was to to be general From the statements If its compulsion Judge quoted Mansfield and Blackstone shown Burdick, (1946). Law 66. 1 of Crime §§ 198-199 at 260-262 voluntary, actions are deemed even though would induce a well nature such subject compulsion, unless grounded has apprehension death seri- as to compulsion is such induce well- bodily compulsion ous harm. had to grounded apprehension immediate and negligence arise without fault of bodily If avoidable death or serious harm. claiming doctrine, aid from person a defendant fails to adduce evidence of such compulsion instant, had and the to be duress, then of law he as a matter has acted present, impending. imminent and voluntarily. Only he' has adduced when the victim must complained force such evidence can there be a reasonable during have lasted the whole time re- short, doubt as to his voluntariness. In performance quired for the crimi- of by issue duress definition determines the nal The “duressed” to show act. had of legally issue if voluntariness: sufficient point (or the resistance to of death at exists, may duress then the defendant be griev- least to the instant of serious acting involuntarily; legally if sufficient harm) bodily capitulated ous before he exist, does not duress then the defendant is exerted, The force and acted. had to be acting voluntarily deemed to be as a matter victim, if not on the then on someone of law. victim, close to the such aas wife or colleagues’ to My effort create an entire- child. The “duressed” had to avail him- ly separate exculpatory of new doctrine self any opportunity of to or escape avoid legal “involuntariness” runs afoul of doc- from the . force. established for centuries and trine embod- good There profu- was reason for the judicial literally ied in of thousands deci- sion of standards. The doctrine held case, In the sions. instant defendants germs potential within it the disorder. present of legally failed evidence suffi- excusing The business individuals from duress, consequently they cient must be which, in analysis, crimes last acting deemed to have been voluntarily. It bodily, had committed awas difficult and clear, then, majority’s holding is dangerous Who affair. see or wise- could that defendants’ evidence should have been ly guess presence of will bearing considered as on defendants’ “vol- freely motivated the body in that dread- untariness,” even it though may not have ful moment criminal action? Infer- been sufficient to make out a duress de- ence, observation, species was the fense, legal logic, lacks all since the issue of proof, inferences, thought, was re- already voluntariness has been determined quired the aid standards. If the doc- through application duress doctrine. trine was not to be the plaything practical The majority’s effect of the de- unscrupulous (and shrewd and were not cision to abolish gov- the strict standards those suspected of already ques- crimes erning claims of “involuntariness” that tionable respect?) in that it had to be formerly embodied in the affirmative well hedged and proof.67 strict of replace defense duress and to them with Thus, positive law that defines where a nebulous essentially deterministic free will and exculpating compulsion ends “voluntariness,” view free will.68 bеgins is embodied in the duress doctrine really shape What takes is a “totality of the and no where else. The rule of law embod- circumstances” test similar to that used in ied in the doctrine this: A defendant’s Fourth and Fifth Amendment cases con- Weitzer, Duress, 67. Newman prehended prisoner pris- & Free Will and claims that he left Law, the Criminal 30 So.Cal.L.R. 313-14 prison on because food served was un- (1957) (emphasis added). wholesome, immediately and also because be- flight up fore his he been beaten had hypo- I will think this be clear if we take guard. prison How would case be tried dispose thetical situation and of it first under principles? under traditional principles major- traditional and then under the ity’s approach. Suppose particular that a leaves prison permission. ap- without When expected be to find whether then would would be Defendant

cerning voluntariness. there is rea- circumstances from all any and all evidence that able adduce the defendant whether as to sonable doubt bearing on his moti- kind of may have some ap- This deterministic voluntarily. acted every conceivable as to vation. Evidence chaos and has proach prescription is a may prison in the unpleasantry exist criminal law for rejected wisely been hodge-podge. may be thrown into years. hundreds of Moreover, concerning presumably evidence from conditions exter- stemming motivation THE MAJORITY’S “INTENT” V. be nal could adduced THEORY defendant, e., driven i. trial majority that the court dying see mother. Confronted contends

desire to his jury instruct properly did not with this unstructured course, bodily injury did exist prosecution, whatever threat has the burden of and that prison grievance persuasion production respect and the burden of could be remedied procedures presented resort every offense. the case element of a criminal When the courts. Thus, prose- precisely presenting case chief the be jury, will required present evidence significance of the evidence cutor would that instructed as to the in lawful the been presented by defendant had told that will be the It defendant. departed permission had from that and without guilty if it ahas it should find the defendant not initially custody. least a would be at There to reasonable doubt as whether the defendant’s flight presumption consequences the defendant intended the by compulsion prompted or duress. was presumption his a actions and governing strict standards the duress de- The voluntarily. point, it At this that he acted jury be laid fense will before the in the instruc- up present to a would be to the defendant jury in be order tions. The to constitute will instructed pro- A has the burden of defense. defendant defense, a must be the duress concerning affirmative defenses and duction imminent, present, impending, and of such by putting start in some evi- must off matters apprehen- well-grounded a nature as to induce support of his defense. In federal dence bodily injury if the sion of death or serious escape court, once the defendant has introduced some any jury If the has is not effected. defense, evidence of he does not have the the prison left the defendant reasonable doubt that regarding persuasion that defense. burden duress, de- then it must find the without such Rather, prosecution рersuade the must the fact- guilty. fendant not beyond finder a reasonable doubt that the de- majority’s approach, the task of Under the does The defendant in this fense hypothetical not exist. prosecutor jury much and the will be more present could one of situation two difficult, impossible. evidence if not Both the attempt present could to kinds of defenses. He evidence that would concerning quality of evidence food and the mind, negate state e. his or beating concerning into would admitted defense, present g., he could an intoxication be said evidence. These circumstances would negate his evidence that would “voluntari- bearing somehow on the defendant’s to have a case, hypothetical the defendant ness.” this prosecutor has the bur- “voluntariness.” den of course; adopts produces the latter he evidence every establishing proof each prison bad and that he that the food in the had been the court would rule that the evidence as was beyond reasonable element of crime point flight. his At this beaten before doubt, therefore, prove he must “voluntari- to majority’s approach how But under the ness.” is he the quality prison was food irrelevant challenge to this evidence and reconfirm it because did not tend to show imminent And how is defendant’s voluntariness? bodily injury of death or severe con- threat jury items of to or not these determine whether Assuming fronting the defend- the defendant. doubt” to raise “reasonable evidence -continuing being of- ant is tried under non prosecutor’s defendant’s “voluntariness”? statute, however, type as to evidence fense approach was clear- under the traditional task beating may of du- be relevant the defense beyond disprove All he had to do was cut. reasonable doubt the may be ress and therefore considered spe- existence of certain jury. Moreover, jury under the elements. cific raising Once has been introduced precisely approach traditional was instructed duress, prose- possible the issue of the federal of duress. how it assess evidence jury as to should persuading has burden of cutor jury pre- majority’s approach the Under the there not duress warrant that escape was sufficient to reasonable sumably that evidence duress beyond instructed and must so he do upon, questions However, con- bears or raises somehow cerning, task is doubt. clearly nature of his voluntariness, no but the defendant’s defined the elements of the defense provided by prove can are which the standards itself. He must that there no serious make this determination. was imminent threat of death or is, he acting inadvertently is not required “intent” element under U.S.C. regard- 751 and that defendants’ evidence accidently, and that is aware of the § he fires, assaults, ing care and medical wrongful. circumstances that his act make relevant “intent” actually element “general requirement This intent” can be required Therefore, by that statute. it prisoner illustrated as follows: If a mistak- holds that the trial court in failing erred enly believes he has authorized properly to submit the the jury evidence to prison belief, this leave and acts on he has on the issue of intent.69 In to deter- order of escape not сommitted the crime because mine whether the trial court properly acted prison not to leave the has intended respect, determine, is necessary Similarly, prisoner if a authority. without first, precise nature “intent” taking evening in the his constitutional required element under 18 U.S.C." and, dark, prison yard acci- exercise and, second, whether defendants’ evidence gate, he dentally prison walks out a has was actually relevant this element. requisite formed the intent the offense. However, that he prisoner if a knows has no A. Escape at Common Law and, authority prison to leave his whatever At common law the crime of motivation, prison, still departs with the simply the departure pris- unauthorized of a purpose departing, he has acted with the oner legal custody before his lawful Thus, requisite example, intent. aif discharge.70 According to Wharton: leaves to visit dying An escape by any is committed whenever with the prison, mother intent return to unlawful means criminal in lawful cus- he has nevertheless “intended” depart tody voluntarily gains leaves and his lib- prison and he is guilty therefore of escape; erty before he is delivered in the due it still purpose was to avoid confine- course of law.71 the ment, only if Similarly, for a brief time. if The of actus reus offense is mere prison a gun- forced to leave at prisoner's physical departure unauthorized from the point, negated.74 his “intent” is not It was place of confinement.72 The mens rea of purpose still his depart custody; he the crime general is a one. special No state leave, may not have desired to but he still of required guilt mind is for other than the intended to. 73 permitted intent go beyond limits The “general requirement This intent” in es- “general offense has been referred to as a context, cape variously expressed. intent” crime. cases has been It this intent simply means purpose that actor has the has referred the “intent go to as doing very of performing, act he beyond permitted is that and “the limits”75 intent noted, however, 69. It to be the trial that without an of force. act Breach of evidence; court did not exclude defendants’ prison departure through was an act of force. presented Moreover, jury. evidence was to the “escape” generally term The now covers both the court did instruct it “should offenses. consider all the circumstances in evidence that you (Tr. deem relevant” to the intent issue. 71. 3 Wharton’s Criminal Law and Procedure 800). Thus, if the trial court did err —and I do (1957). at 1367 758 § failing amplify not think it did —it was in for the relevance of defendants’ evidence 502; Burdick, 72. at Perkins 1 Law of Crime escape. anything, intent element of If 462-63. however, this “omission” was fortunate for de- fendants, since, my as discussion in this section Burdick, 502-03; at 73. Perkins 1 Law of Crime demonstrates, regarding defendants’ 467; 3 Wharton’s fires, Criminal Law and Procedure assaults, and medical inattention was ir- 764. relevant to the issue of intent. Burdick, 70. 1 Law Crime 458-471. Techni- 74. §§ LaFave & Scott 49-50. cally, early at common law were two there “escape” pris- related and “breach offenses — 75. Perkins at 502. Escape on.” departure unlawful of a crime, crime, “general than a intent rather justice”.76 the due course to evade escape guilty not prisoner would be a Wharton writes: that he had could be demonstrated unless it required to constitute ordinary The intent beyond mere in mind some ultimate purpose is the the offense of ... could Thus, example, escape departure. voluntarily which re- an act intent to do specific intent conceivably be defined liberation from law- sults the unlawful in con intent to avoid requiring offense custody.77 ful pris In that case permanently. finement Burdick writes: it escape unless guilty be oner not would is not re- specific intent [A] he he left when could proven statutory quired, absence of The fact of never return. intended contrary. voluntary The provision to however, escape at common is, matter custody, leaving without act of lawful specific intent deemed a law has never been law, is sufficient consti- permission of crime; gen been considered a always it has required intent general tute the criminal crime.80 eral intent all crimes.78 general re- expressed, this intent Escape Under U.S.C. § However B. distinguished from the must be quirement gov- largely The now crime intent.” concept “specific in the United States. erned statute requires showing “Specific intent” federal statute is 18 U.S.C. relevant § defendant had an ultimate or purpose proscribes “escape from An wrongful act. performing

motive in does Attorney The statute General.” design if has reus mens rea specific actor has intent the actus define object aim accomplish particular “escape some from custo- beyond crime the words If the arises whether by engaging dy.” question criminal conduct.79 therefore essentially declar- “specific statutory provision crime of intent” Weiseman, People operating the con- vehicle without 280 N.Y. motor owner, guilt (1939). of common- sent but N.E.2d intentionally larceny law he must not 77. 3 Wharton’s Law and Procedure Criminal property by trespass and take the other’s away, carry must this with an addi- do —he design mind known as the animus tional Burdick, 78. 1 Law of Crime at § Burglary, more- furandi or intent steal. Cullen, “intentionally over, F.2d 391- 79. United States v. as cannot be defined Burdick, 1971). See 1 Law of entering dwelling breaking of another and 120; 202; Dangel, § Crime LaFave & Scott at may nighttime,” this be done in the because Law, 750-51, (1951); § Criminal Perkins at committing felony. For com- without this 762-64: only burglary required there is mon-law require specified a breaking entering Some crimes intention of the the intentional doing in of the addition the intentional dwelling nighttime, house of in the another itself, specifically actus re- reus intent purpose is to an —an but also additional —which quired guilt offense, particular for as in (or larceny). felony petty This commit a larceny, burglary, assault com- with intent to intent,” requirement “specific additional is a murder, using mit with mails intent required specifically an additional intent defraud, attempt. physical criminal guilt particular of offense. part larceny, example, of the crime of is (footnotes omitted). Id. trespassory taking carrying away of authority majority heavily on the relies personal another, may goods of but this Maj. Op. at-- of Penal Model Code drafts. deliberately, intentionally, be done and with U.S.App.D.C., of 585 -of at 109741098 complete knowledge full of all facts significant, then, It is that the Code’s F.2d. act, understanding wrongfulness of the escape crime conforms definition larceny. constituting If wilful without crime, “follow[ing] type general that of a intent property is done with the misuse another’s prevailing Insti- See American Law law.” (with returning change of it no intention mind in this requirement tute, (Escape from § Model Penal Code 208.33 special regard) mens-rea (Tent. Detention) No. at 133 Draft Official larceny lacking. a is Such 1958). suit, wrongdoer is answerable in a civil may statutory guilty such be of some offense atory of law intent” crime.84 the common or whether it The majority cites the law, expands incorporating on the common Seventh case of United States v. Circuit new elements. support sole Nix85 for the proposition crime; escape “specific is a intent” It is statutory language clear from the however, of the Nix dem- analysis decision precedents itself and from that 18 support onstrates that it does not the ma- U.S.C. 751 carries over the common law § position. jority’s The Nix case focused on elements of as to both the actus reus ongoing controversy concerning the and the mens rea. availability of the intoxication defense. only The statute uses “escape” word Under one view the intoxication defense is defining proscribed in action. It does “specific available with respect to in- not further term. define this There are no tent” crimes. The modern and ascendant it, adjectives modifying and there is no view, however, is may intoxication legislative history meaning. on its It ais “general serve as a defense to intent” statutory basic canon of construction that crimes as well.86 In the Nix case there where undefined term is used a stat- two defendants —Nix and .Peterson: ute, it light must be construed in of its Nix was charged “attempted escape”; with common law meaning, the absence of charged “escape.” Peterson was Each indicating contrary meaning;81 claimed that were intoxicated at the this is especially interpreting true in crimi- time of their offenses. attempt nal Since a11 Congress statutes.82 Where borrows intent,” require term of crimes Nix “specific art accumulated the legal meaning claimed that was entitled to tradition and an intoxica- centuries of practice, presumably argued and adopts knows tion instruction. Peterson the meaning conveys judicial its uses also “escape” crime should be considered mind, case, and in such in the absence he, too, a “specific intent” crime so that direction, contrary may its use be taken as be would entitled to an intoxication instruc- widely satisfaction with accepted defini- tion. The acknowledged court there tions a departure and not from them.83 Ac- authority was scarce “specif- for Peterson’s cordingly, it clear as matter of statuto- ic argument, intent” but held that the in- construction, ry that by defining an offense toxication was available as a defense for solely by reference to the “escape”, word both attempted escape regard- Congress carry intended to over the com- specific less of the general nature of the mon law Thus, elements of the crime. es- required intent element for those crimes. cape under 18 U.S.C. 751 must deemed It stated that there was some intent ele- a “general intent” “specific rather than a required ment cases and defined it intent” offense. “the intent avoid confinement.” The This is supported by conclusion court then clear stated: “Whatever label weight authority. placed intent, A series of court of on this a defendant under appeals cases has either explicitly tacitly or 751 is entitled to § an that instruction in- treated escape under 751 a “general as component § cludes this mental as an element g., Zimmerman, 81. E. (1) United (2) States v. escape custody 71 the offense are from the F.Supp. (E.D.Pa.1947). generally 534 See 2A by of an institution where he is confined di- Statutory (4th Sutherland § Construction 50.03 Attorney (3) pursuant rection of the General to 1973). ed. process issued under the laws of the United court.”); Chap- States United v. States g., States, 82. E. Levinson v. United 47 F.2d 470 man, (5th 1972); Bayless 455 F.2d 746 Cir. v. (6th 1931); States, Cir. Simmons v. United 120 States, (9th 1967). United 381 F.2d 67 Cir. F.Supp. (M.D.Pa.1954). States, v. Morissette United 342 U.S. (7th 1974). 85. 501 F.2d 516 Cir. (1952). S.Ct. 96 L.Ed. 288 86. LaFave & Scott 45 at § 343-344. Woodring, 84. United States v. 464 F.2d 1248 (10th 1972). Cir. McCray, See United States 1972) (“The 468 F.2d 446 elements of pro- short, the definition permanently. In . . . If the defendant crime . the mental of the Nix decision he was intoxicated at vided that offers evidence offense, escape no dif- must in cases required element the time he was so intent general consider whether instructed to from traditional ferent form an intent to he could not beyond permitted intoxicated to limits.89 go the Nix court essence, then, In escape.”87 sum, then, from the statu- it is evident be a intoxication should simply held that prece- from the tory language itself es- escape regardless to of whether defense under escape from dents that general specific or intent crime.88 cape is No intent crime. general 751 is a U.S.C. the Nix court In the course of its decision specific it to be has held court federal escape of as the intent element defined the requiring offense, of the sense intent in face, to On its “intent avoid confinement.” purpose ultimate have an escapee that an general require- intent this to be a seems confinement. beyond from departure noted, the common-law already ment. As general requirement escape has intent of Defendants’ Evidence C. The Relevance depart intent to usually been defined Intent Issue go beyond per- intent custody, from whether de- It remains to be determined limits, to evade the due or the intent mitted fires, concerning as- fendants’ jus- “due course justice course of —the saults, care was relevant and medical uninterrupted being tice” continued issue of intent. The words “avoid confine- confinement. thing the duress If one is clear under correspond completely with ment” seem to does not ne compulsion it is this: doctrine nothing There is in this these definitions. general intent.90 As already gate discussed suggests escapee that an definition dissent, there are two Part III this object act with ultimate motive or must confinement; face, types type in criminal law. One it does defenses leaving on its crime; for ex- require not negates the elements of an intent to avoid confinement p.-of U.S.App.D.C., p. at at 87. 501 F.2d 1126-1127of F.2d, important that the infra. It is to note dissenting opinion Judge in Nix Pell’s Circuit distinguish among makes no effort to Nix court centering on clarifies the case as focus concepts in criminal law. certain fundamental availability defense rath- of the intoxication example, has it states: “A who no For general er is a than on whether grossly intoxi- intent cated, —because specific intent offense. He states: leave, jailer or thinks his has told him to aspect close that I find this confinement, or mistakes boundaries part case the effect that if the defendant acted or court’s instructions gun in- or has a held his head another failed society, likely endanger as a mate —is not a to act because of intoxication was (emphasis escapee 501 F.2d at 519 is.” willful quarrel, I do not nor do I under- defense. statement, added). quoted approvingly This does, majority the imme- stand that majority, those between evinces confusion charge diately preceding statement in the negate (viz. intent intoxication defenses specific crime does not involve in- that the tent. would fact) and those which do not and mistake accept majority I standard exculpating negate cir- intent but rather raise voluntary departure is a impairment of “free cumstances such custody with an intent to avoid confinement. (viz. duress). identifies will” While dissent light Looking at the record of this necessary concepts defines the various I am Nix a fair standard convinced that had escape, intelligible as in- such definition guilty him under trial and that the found volition, voluntariness, duress, tent, intent-neg- instructions, questionable which with the one justi- defenses, ating and defenses excuse exception, properly applicable under fication, majority seem be does not even majority opinion. the standard stated in the exist, and it is conscious that these distinctions being While the to intoxication not reference majority to do this confusion led the that has might prejudicially be erroneous in a defense and such violence to the duress doctrine concept situations, factual I do not some conceivable deem so here. intent and of “free will.” it 501 F.2d 520. at LaFave & Scott 49-50. §§ 90. suggesting language in 89. There some Nix is requirement. “specific This treated intent” is ample, designed the intoxication defense of is Since crime under 18 U.S.C. intent”, requires only “general mens rea or intent negate § to of element namely depart custody, the intent to from it an The other of type offense. defense ne- clear regarding is that defendants’ evidence gates responsibility raising criminal fires, assaults, and medical care was not justifies some matter or excuses relevant to the issue. Even assum- “intent” Compulsion, technical violation of law. argument of that de- ing purpose duress, necessity are defenses of this fendants’ evidence established overwhelm- The rationale for these defens- type. latter ing compulsion threat of imminent —the defendant, es is not confronted still, not negate would defend- this death — harm, with an unnerving threat of does not ants’ intent. There is no doubt that de- does, “intend” to do what he but rather consciously deliberately fendants de- that, impinged upon, when his free will was parted and that he made socially the most useful choice They aware of the nature of their actions. between two evils.91 Rather go than to this, freely admit and this is all is intent, compulsion issue of the doctrine of required to establish the “intent” element or goes duress to of the issue voluntariness required According- under 18 U.S.C. and reflects a policy point decision to the ly, the trial court’s on the in- instructions stage or up to an individual under entirely tent issue were correct. compulsion should be expected resist The majority’s treatment this of issue is pressure act according his own will the Nix court’s defini- Adopting obscure. rather than submit the will of another. escape, tion of it holds that the intent ele- policy This decision involves consideration ment of the offense consists in the “intent utility social the individual’s ac- to avoid confinement”. It then concludes out, tions. As already pointed if A forces B that “a can consider whether evidence gunpoint C, at hit B is innocent of bat- conditions, threats, jail and violence such tery. He is innocent not because he was presented by appellants in the District intent —he did intend Court raises reasonable requisite without concerning doubts to hit C—but rather because he made the defendant’s . . . intent to avoid con- best choice under the circumstances.92 finement.” mentary accompanying Id. the Code’s section on suggested compulsion duress pates through excul- majority 92. The contends that the duress-ne- negation of intent. As al- cessity general defenses reflect “two different ready parts indicated in III and IV of dis- principles exculpation.” Maj. Op. at-of sent, compulsion goes the doctrine of duress U.S.App.D.C., at 1097 of 585 F.2d. One of to the issue of voluntariness rather than the principles, according majority, these re- issue of intent. “justification by lates evil”; choice of the lesser fallacy majority’s position principle, “exemplified but can be the other easily compulsion, contrasting the notion of duress as demonstrated two situa- dictates person situation, responsible that a gun will not be held tions. In the first holds a C offense he commits under threats or conditions A’s head and commands A to hit B. A does hit person ordinary that a situation, firmness would gun have InB. the second holds a C majority been unable to resist.” The asserts A’s B. head commands A to kill A does principle that this latter “like the defenses of likely kill B. A would most be excused for intoxication, insanity, mistake, negates hitting probably inB the first situation but intent voluntariness elements an offense.” killing would B in the not be excused for Maj. Op. U.S.App.D.C., at---of at majority’s second situation. If the view that 1096-1098 of 585 F.2d. This assertion is sim- sound, negates general how duress intent ply wrong. general negate Duress does not explained? could be these different results only authority by majori- intent. The cited Clearly, compulsion in first if the instance ty support of its table assertion intent, general why was sufficient to cancel A’s contents of the draft Model Penal Code where compulsion degree would not the same the duress defense is covered under “Article 2: sufficient in the second instance? Principles Liability” General while the neces- U.S.App.D.C., sity Maj. Op. at-of at 1094 defense is treated under “Article 3: Gener- of 585 F.2d. Principles al of Justification.” This is not au- thority all; and, indeed, nowhere in the Com-

1127 position by urged this is defendants phrase use of the “intent majority’s The ambigu- appeal. is somewhat and on Under this to avoid confinement” the trial court face, nothing mean only guilty ous. On its it seems to be held reading, a could depart prison that, more the intent to from than at the proved it could be escape of if limits; permitted go beyond intent to intended he never to prison time he left ultimate appear require any it does to not However, majority de- again. return from purpose objective beyond departure of it nies, feebly, that is though somewhat correct, custody. reading is then the If this the intent ele- adopting this definition of with traditional formu- phrase is consistent acknowledges “[djescribing It that ment. required lations intent element of the escape intent as an requisite for ‘intent escape only “general calls for a cases and completely to and not to return’ is not leave majority intent.” this is what the means If pris- it a satisfactory might since not cover plainly wrong then dead phrase, is to oner who intends take an unauthorized compulsion in its that evidence of assertion leave of absence.”95 temporary is relevant to such intent in view of conjured up wholly has majority does elementary precept compulsion of element novel definition the intent of negate general not intent. fastening on the Nix escape, however. Still However, that the there are indications “intent to avoid confine- phrase court’s phrase with more investing is majority ment,” majority asserts that intent It meaning apparent than is on its face. under 18 751 is neither required U.S.C. § court’s upon emphasizes seizes the Nix to go beyond permitted intent general courts, “most confronted statement limits, in the trial court’s instruc- reflected a defendant could not or with evidence that tions, specific to avoid con- nor the intent not intent to leave and did not form an urged by defend- permanently, finement return, an to have held such intent essential Rather, according majority, ants. sug- proof escape.”94 crime of This element is defined the intent of is “in- gests majority equating prison reference to nature of conditions: to an “intent tent avoid confinement” with return”; describes the words, The word “confinement” to not to in other leave and pre- punishment form most common by the “intent to avoid confinement” phrase legal Jurors system. our are majority may really mean “intent to scribed Indeed, serving permanently.” readily person avoid confinement aware that a 1067, denied, Maj. Op. U.S.App.D.C., 343 72 S.Ct. at-of cert. U.S. at 1092 F.2d, Nix, fact, citing (1952). point of 585 United none of States v. L.Ed. 1365 hold, specif F.2d suggest, at 518. that a or even these cases part prison ic to return is intent not Maj. Op. U.S.App.D.C., at-n. 13 of 190 escape. found I have no intent element at 1092 n. 13 of 585 F.2d. It correct for the is federal, specific court, that a that holds state or majority reject the contention defendant’s escape. is Of intent not to return an element the intent element under course, condemning feature of the most “intent to U.S.C. 751 is the avoid confinement § patently position ab that it is defendants’ permanently." requirement Such a would recognizes majority grudgingly Even the surd. clearly contrary to the law and be common prison approach a the defendants’ this. Under unsupported by statutory language either the “temporary” would be entitled to take er interpret- of 18 751 or law U.S.C. case § he de whenever leave of absence ing authori- that section. The conceivable long ultimately intended sired. As ty position careless and defendants’ is the violating law. It return he would suggesting in the Nix case inaccurate statement imagination see what would takes little “intent that “most courts” have found that an Thus, example, if 18 U.S.C. do to proof leave and not return” “essential young not want inmate decided that he did escape.” Nix court cites crime youth 20-year prison serving sen waste his tence, support four cases in of this statement: Galle- long lawfully prison as he could leave gas People, 159 Colo. 411 P.2d 956 age 65 to he intended to return at the serve (1966); Dolatowski, Ill.App.2d People v. Clearly, out his term. this notion (1968); 237 N.E.2d 553 v. United Chandler States, fanciful. (9th 1967); and Mills 378 F.2d Cir. States, 1951), v. United 193 F.2d 174 e., by sentence for a crime is “confined”—i. this factor or Apparently, condition? liberty his is restricted —in certain funda- majority believes that if a defendant’s mental For ways. example, he cannot departure prison from is prompted solely by leave the institution wherein he is con- conditions”, “non-confinement that he has fined, go he cannot come and pleas- as he not “intended” to escape prison. from In es, daily subject his schedule is to various short, majority holds that the intent controls, privacy is substantially cur- required under 18 specif- U.S.C. is the § tailed, subject and he is to strict disci- ic intent depart to from “confinement con- pline. custody One who leaves without ditions,” rather than from “non-confine- permission to see his mother who is ill or ment conditions.” improve his menu (assuming prison is, majority’s approach As strained as the reason) fare is within has an intent it is My colleagues understandable. are avoid confinement since restricted con- apparently prepared mightily to labor tact with relatives and a reasonably limit- exculpate these defendants. They have ed choice of diet are normal incidents of come to flimsy realize that defendants’ Furthermore, confinement. duress pass defense does not muster under custody who leaves to take even tempo- Undeterred, traditional standards. how- rary “leave of absence” from the normal ever, they have looked about for some other conditions of possesses confinement issues”; raising avenue for the “duress requisite escape. intent for On the other reason, they some have decided to work hand, if a prisoner offers evidence to Here, under the rubric of “intent.” how- show that he left only confinement ever, they up have run against simple avoid conditions that are not normal as- general fact that is a intent crime pects of “confinement”—such beatings and the principle fundamental that duress reprisal trial, testimony in a failure compulsion negate general does not in- provide care, essential medical or ho- problem tent. The remains: How does one mosexual attacks-—the intent element of make issues of duress relevant to intent? the crime of escape may not be satisfied. My colleagues have now way found a When a defendant introduces evidence solve problem; they this contrive to rede- subject he was to such “non-confine- fine escape by the intent element of direct conditions, ment” the crucial factual de- prison reference to duress. Various condi- termination on the intent issue is thus tions, might given have rise to a whether the defendant left escapee duress defense once the had re- to avoid whether, these conditions or custody, turned to are now identified my addition, the defendant also intended to colleagues as “non-confinement conditions.” avoid making confinement. this de- conditions, prison And other which would termination the guided by is to be given defense, not have rise to a duress are the trial court’s instructions pointing out termed pris- “confinement conditions.” If a those factors that are most indicative of departure oner’s prompted by presence or absence of an intent to conditions, duress-inducing he has not “in- avoid confinement.96 escape. tended” to prisoner’s If a depar- Thus, under majority’s approach, in or- conditions, ture prompted by other how- der to determine whether a particular de- ever, he has escape. “intended” to Voila! fendant has satisfied the intent element Matters of directly duress are now relevant under 18 U.S.C. three inquiries must to the issue of Modestly, major- intent. First, be made. what condition or factor ity relegates legerdemain to a footnote. prompted the defendant depart from cus- tody? Second, was this condition a “normal problems There are several the ma- incident of And, third, confinement”? jority’s approach. The most serious one is departure defendant’s prompted “only” that it has no foundation in the law. Maj. Op. U.S.App.D.C., at-n. of 190 585 F.2d. n. majority s de- of mind —the subjective state First, contrary to the common clearly isit embroiling the fact-find- necessitates been an element of es- cision law. It has never have a be- escapee law that an into the boundaries cape inquiry at common er in an inci- to avoid “the normal specific intent abnor- conditions and prison normal tween confinement”; required all that is dents of inquiry this I submit prison mal conditions. physical go beyond permitted is an intent to intent. The to the issue is irrelevant limits, require- intent general and this is a relevant conditions severity prison ment. has been defendant the issue whether in this compulsion, and or subject to duress Second, with innu- directly in conflict it is par- whether a is not question context holding prison condi- merable cases is not a “normal” intolerable, is or tions, ticular condition matter how rank and no but, rather, life, whether liability escape.97 do not affect incident of to raise in the is such as the condition Third, nothing in 18 absolutely there is appre- well-grounded defendant’s mind of this suggests adoption 751 that U.S.C. § bodily injury or death. hension of serious only the element. The statute uses novel offense, and, in “escape” word to define the sum, then, that es- indisputable it is indication, contrary the absence of a general under 18 751 is cape U.S.C. § according term must construed to its be It is also clear that evidence intent crime. meaning. common-law relevant to an compulsion, perhaps while necessity, Fourth, affirmative defense of duress holding is no case law there If the ma- negate general avoid “the normal inci- intent. specific intent does specific an element of es- intent dents of confinement” is insists that is a jority I invite the cape crime, totally sup- under 18 U.S.C. without I submit this is authority, state fed- majority inescapable to cite one and the port legal precedent eral, position. ‍‌‌​‌​‌​‌​​‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​​​​​‌‍hints at this that even absurd- practical results are a demonstrable majority’s theory ity. Consequently, Fifth, majority’s conceptu- position duress, though insufficient that evidence ally unsound. Even if the distinction be- dеfense, should never- to make out a duress tween conditions” and “non- “confinement to the fact-finder as presented theless be valid, confinement conditions” is it is incor- simply intent is relevant the defendants’ say rect that a defendant does not intend wrong. simply be- to avoid confinement conditions purpose immediate is to avoid cause his majori- then, analysis, my On view non-confinement conditions. A defendant ty position is this: the neces- “intends” what knows val- of duress cannot be defense Thus, sary of his actions. consequences defendants, because idly asserted these prisoner’s even though primary or sole attempt by defend- (a) there was never purpose is to avoid “non-confinement condi- appropriate themselves in to ants to turn tions,” only he can do so—and he knows he further, authorities, (b) such evidence by avoiding legitimate can do con- so— was insuffi- as was offered defendants finement as well. When and if conditions out of law to make cient as a matter prison, he leaves “intends” to every previous duress defense since it fails depart from “confinement conditions” even severity legal respect test with though his motive is to avoid non-confine- “compulsion.” immediacy of the majority ment conditions. The unfortu- “intent.” nately confounds “motive” with realizing the weakness of Apparently any accepted position under defendants’ practical problem There is also a inherent duress, attempts majority standard of majority’s approach. in the In order to escaped crimi- construct a new haven for ascertain the “intent” of defendant —his Davis, g,, Commonwealth, (1880): 97. E. State Ky.Law Rep. Hinkle v. 14 Nev. 439 (1902). 66 S.W. 816

nals under the rubric of “voluntariness.” fails,

This likewise because the law has al-

ways proper ap- been that avenue for “voluntariness”,

proaching issues or “free

will”, through the affirmative defense of

duress in cases such as this in which defend- deprived

ants claim that of free

will of circumstances or the by force threats persons.

of other doctrine duress specifically

was created to deal with such

issues. Finally, only

3. meaningful way in majority’s

which the discussion of intent interpreted

can be only construc- —and tion which conceivably could assist defend-

ants majority imposes here —is that

specific requirement intent on the crime of

escape, and includes therein an intent

avoid “the normal incidents of confine- However,

ment.” a requirement such has

never before been found the federal

courts; its practical application would make mockery out of the federal statute. majority’s theoretical edifice in this

opinion unprecedented:

unworkable. respectfully

I dissent.

UNITED STATES of America COGDELL,

James T. a/k/a James T.

Cogwell, Appellant.

No. 77-1602. Appeals,

United States Court of

District of Columbia Circuit. 5,

Argued Dec. 1977. July

Decided

As July Amended

Rehearing Denied Oct. notes notes 20-21 at infra. 17. The dissent on words “intent to fastens Appellant argues Walker further that in or avoid confinement” and would either reduce der to requisite § violate a defendant must have “general to a them tinguishable advertently statement of intent” indis- custody. intent the time he leaves “consciously from the and not in- appellant argues Brief for Walker at 40-43. He given or accident” instruction should § 751 not be used convict a court, expand the trial to “intent to them permission who leaves with without dissent, permanently.” avoid confinement See confinement, noting an intent to avoid at-, U.S.App.D.C. F.2d at 1126-1127 Congress separate specifically provided has (emphasis original). Neither of these ex- prisoners offense for one class of such —those interpretations appropriate. treme The word furlough prescribed. who fail to return “confinement” describes most common 4082(c) (1976). See ad 18 U.S.C. Courts punishment prescribed by legal form of our dressing position. appellants’ this issue favored have not system. readily person Jurors are aware that Michelson, See, g.,

Notes

notes notes 11-14 su- requires normally defense. The duress pra. defense rejecting The dissent’s motive for the Nix engaged holding defendant establish practical is related to the basic differ- criminal conduct because he was com- opinions: ences between the two While the pelled person’s to do so unlawful basically agree court another and the dissent on what

Case Details

Case Name: United States v. Clifford Bailey, United States of America v. Ronald Clifton Cooley, United States of America v. Ralph Walker

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 19, 1978

Citation: 585 F.2d 1087

Docket Number: 77-1404, 77-1413 and 77-1502

Court Abbreviation: D.C. Cir.