United States v. Bailey

Mr. Justice Blackmun,

with whom Mr. Justice Brennan joins, dissenting.

The Court’s opinion, it seems to me, is an impeccable exercise in undisputed general principles and technical legalism: The respondents were properly confined in the District of Columbia jail. They departed from that jail without authority or consent. They failed promptly to turn themselves in when, as the Court would assert by way of justification, ante, at 413, 415, the claimed duress or necessity “had lost its coercive force.” Therefore, the Court concludes, there is no defense for a jury to weigh and consider against the respondents’ prosecution for escape violative of 18 U. S. C. § 751 (a).

It is with the Court’s assertion that the claimed duress or necessity had lost its coercive force that I particularly disagree. The conditions that led to respondents’ initial departure from the D. C. jail continue unabated. If departure was justified — -and on the record before us that issue, I feel, is for the jury to resolve as a matter of fact in the light of *420 the evidence, and not for this Court to determine as a matter of law — it seems too much to demand that respondents, in order to preserve their legal defenses, return forthwith to the hell that obviously exceeds the normal deprivations of prison life and that compelled their leaving in the first instance. The Court, however, requires that an escapee’s action must amount to nothing more than a mere and temporary gesture that, it is to be hoped, just might attract attention in responsive circles. But life and health, even of convicts and accuseds, deserve better than that and are entitled to more than pious pronouncements fit for an ideal world.

The Court, in its carefully structured opinion, does reach a result that might be a proper one were we living in that ideal world, and were our American jails and penitentiaries truly places for humane and rehabilitative treatment of their inmates. Then the statutory crime of escape could not be excused by duress or necessity, by beatings, and by guard-set fires in the jails, for these would not take place, and escapees would be appropriately prosecuted and punished.

But we do not live in an ideal world “even” (to use a self-centered phrase) in America, so far as jail and prison conditions are concerned. The complaints that this Court, and every other American appellate court, receives almost daily from prisoners about conditions of incarceration, about filth, about homosexual rape, and about brutality are not always the mouthings of the purely malcontent. The Court itself acknowledges, ante, at 398, that the conditions these respondents complained about do exist. It is in the light of this stark truth, it seems to me, that these cases are to be evaluated. It must follow, then, that the jail-condition evidence proffered by respondent Cogdell should have been admitted, and that the jury before whom respondents Bailey, Cooley, and Walker were tried should not have been instructed to disregard the jail-condition evidence that did come in. I therefore dissent.

*421 I

The atrocities and inhuman conditions of prison life in America are almost unbelievable; surely they are nothing less than shocking. The dissent in the Bailey case in the Court of Appeals acknowledged that “the circumstances of prison life are such that at least a colorable, if not credible, claim of duress or necessity can be raised with respect to virtually every escape.” 190 U. S. App. D. C. 142, 167, 585 F. 2d 1087, 1112 . And the Government concedes: “In light of prison conditions that even now prevail in the United States, it would be the rare inmate who could not convince himself that continued incarceration would be harmful to his health or safety.” Brief for United States 27. See Furtado v. Bishop, 604 F. 2d 80 (CA1 1979), cert. denied, post, p. 1035. Cf. Bell v. Wolfish, 441 U. S. 520 (1979).

A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. 1 Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system. 2 Prison officials often are merely indifferent to serious health and safety needs of prisoners as well. 3

*422 Even more appalling is the fact that guards frequently participate in the brutalization of inmates. 4 The classic example is the beating or other punishment in retaliation for prisoner complaints or court actions. 5

The evidence submitted by respondents in these cases fits that pattern exactly. Respondent Bailey presented evidence that he was continually mistreated by correctional officers during his stay at the D. C. jail. He was threatened that his testimony in the Brad King case would bring on severe retribution. App. 142, 145. Other inmates were beaten by guards as a message to Bailey. Id., at 36. An inmate testified that on one occasion, three guards displaying a small knife told him that they were going “to get your buddy, that nigger Bailey. We’re going to kill him.” Id., at 94. The threats culminated in a series of violent attacks on Bailey. Blackjacks, mace, and slapjacks (leather with a steel insert) were used in beating Bailey. Id., at 94, 101, 146-150.

Respondent Cooley also elicited testimony from other inmates concerning beatings of Cooley by guards with slapjacks, blackjacks, and flashlights. Id., at 46-47, 97-98, 106, 116-118, *423 166-167, 185-186. There was evidence that guards threatened to kill Cooley. Id., at 107.

It is society’s responsibility to protect the life and health of its prisoners. “[W]hen a sheriff or a marshall [sic] takes a man from the courthouse in a prison van and transports him to confinement for two or three or ten years, this is our act. We have tolled the bell for him. And whether we like it or not, we have made him our collective responsibility. We are free to do something about him; he is not” (emphasis in original). Address by The Chief Justice, 25 Record of the Assn, of the Bar of the City of New York 14, 17 (Mar. 1970 Supp.). Deliberate indifference to serious and essential medical needs of prisoners constitutes “cruel and unusual” punishment violative of the Eighth Amendment. Estelle v. Gamble, 429 U. S. 97, 104 (1976).

“An inmate must rely on prison authorities to treat his medical needs. ... In the worst cases, such a failure may actually produce physical 'torture or a lingering death’. ... In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. . . . The infliction of such unnecessary suffering is inconsistent with contemporary^ standards of decency.” Id., at 103 .

It cannot be doubted that excessive or unprovoked violence and brutality inflicted by prison guards upon inmates violates the Eighth Amendment. See, e. g., Jackson v. Bishop, 404 F. 2d 571 (CA8 1968). The reasons that support the Court’s holding in Estelle v. Gamble lead me to conclude that failure to use reasonable measures to protect an inmate from violence inflicted by other inmates also constitutes cruel and unusual punishment. Homosexual rape or other violence serves no penological purpose. Such brutality is the equivalent of torture, and is offensive to any modern standard of human dignity. Prisoners must depend, and rightly so, upon the prison administrators for protection from abuse of this kind.

*424 There can be little question that our prisons are badly overcrowded and understaffed and that this in large part is the cause of many of the shortcomings of our penal systems. This, however, does not excuse the failure to provide a place of confinement that meets minimal standards of safety and decency.

Penal systems in other parts of the world demonstrate that vast improvement surely is not beyond our reach. “The contrast between our indifference and the programs in some countries of Europe — Holland and the Scandinavian countries in particular — is not a happy one for us.” Address by The Chief Justice, supra, at 20. “It has been many years since Swedish prisoners were concerned with such problems as 'adequate food, water, shelter’; 'true religious freedom’; and 'adequate medical treatment.’ ” Ward, Inmate Rights and Prison Reform in Sweden and Denmark, 63 J. Crim. L., C. & P. S. 240 (1972). See also Profile/Sweden, Corrections Magazine 11 (June 1977). Sweden’s prisons are not overcrowded, and most inmates have a private cell. Salomon, Lessons from the Swedish Criminal Justice System: A Reappraisal, 40 Fed. Probation 40 , 43 (Sept. 1976). The prisons are small. The largest accommodate 300-500 inmates; most house 50-150. Id., at 43 ; Profile/Sweden, supra, at 14. “There appears to be a relaxed atmosphere between staff and inmates, and a prevailing attitude that prisoners must be treated with dignity and respect.” Siegel, Criminal Justice— Swedish Style: A Humane Search for Answers, 1 Offender Rehabilitation 291, 292 (1977).

II

The real question presented in this case is whether the prisoner should be punished for helping to extricate himself from a situation where society has abdicated completely its basic responsibility for providing an environment free of life-threatening conditions such as beatings, fires, lack of essential medical care, and sexual attacks. To be sure, Congress in so *425 many words has not enacted specific statutory duress or necessity defenses that would excuse or justify commission of an otherwise unlawful act. The concept of such a defense, however, is “anciently woven into the fabric of our culture.” J. Hall, General Principles of Criminal Law 416 (2d ed. 1960), quoted in Brief for United States 21. And the Government concedes that “it has always been an accepted part of our criminal justice system that punishment is inappropriate for crimes committed under duress because the defendant in such circumstances cannot fairly be blamed for his wrongful act.” Id., at 23.

Although the Court declines to address the issue, it at least implies that it would recognize the common-law defenses of duress and necessity to the federal crime of prison escape, if the appropriate prerequisites for assertion of either defense were met. See ante, at 410-413. Given the universal acceptance of these defenses in the common law, I have no difficulty in concluding that Congress intended the defenses of duress and necessity to be available to persons accused of committing the federal Crime of escape.

I agree with most of the Court’s comments about the essential elements of the defenses. I, too, conclude that intolerable prison conditions are to be taken into account through affirmative defenses of duress and necessity, rather than by way of the theory of intent espoused by the Court of Appeals. That court’s conclusion that intent to avoid the normal aspects of confinement is an essential element of the offense of escape means that the burden of proof is on the Government to prove that element. According to our precedents, e. g., Mullaney v. Wilbur, 421 U. S. 684 (1975), the Government would have to prove that intent beyond a reasonable doubt. It is unlikely that Congress intended to place this difficult burden on the prosecution. The legislative history is sparse, and does not specifically define the requisite intent. Circumstances that compel or coerce a person to *426 commit an offense, however, traditionally have been treated as an affirmative defense, with the burden of proof on the defendant. Although intolerable prison conditions do not fit within the standard definition of a duress or necessity defense, see 190 U. S. App. D. C., at 151-152, n. 29, 585 F. 2d, at 1096-1097, n. 29 , they are analogous to these traditional defenses. I therefore agree that it is appropriate to treat unduly harsh prison conditions as an affirmative defense.

I also agree with the Court that the absence of reasonable less drastic alternatives is a prerequisite to successful assertion of a defense of necessity or duress to a charge of prison escape. One must appreciate, however, that other realistic avenues of redress' seldom "are open to the prisoner. Where prison officials participate in the maltreatment of an inmate, or purposefully ignore dangerous conditions or brutalities inflicted by other prisoners or guards, the inmate can do little to protect himself. Filing a complaint may well result in retribution, and appealing to the guards is a capital offense under the prisoners’ code of behavior. 6 In most instances, the question whether alternative remedies were thoroughly “exhausted” should be a matter for the jury to decide.

I, too, conclude that the jury generally should be instructed that, in order fa prevail on a necessity or duress defense, the defendant must justify his continued absence from custody, as well as his initial departure. I agree with the *427 Court that the very nature of escape makes it a continuing crime. But I cannot agree that the only way continued absence can be justified is by evidence “of a bona fide effort to surrender or return to custody.” Ante, at 413,415. The Court apparently entertains the view, naive in my estimation, that once the prisoner has escaped from a life- or health-threatening situation, he can turn himself in, secure in the faith that his escape somehow will result in improvement in those intolerable prison conditions. While it may be true in some rare circumstance that an escapee will obtain the aid of a court or of the prison administration once the escape is accomplished, the escapee, realistically, faces a high probability of being returned to the same prison and to exactly the same, or even greater, threats to life and safety.

The rationale of the necessity defense is a balancing of harms. If the harm caused by an escape is less than the harm caused by remaining in a threatening situation, the prisoner’s initial departure is justified. The same rationale should apply to hesitancy and failure to return. A situation may well arise where the social balance weighs in favor of the prisoner even though he fails to return to custody. The escapee at least should be permitted to present to the jury the possibility that the harm that would result from a return to custody outweighs the harm to society from continued absence.

Even under the Court’s own standard, the defendant in an escape prosecution should be permitted to submit evidence to the jury to demonstrate that surrender would result in his being placed again in a life- or health-threatening situation. The Court requires return to custody once the “claimed duress or necessity had lost its coercive force.” Ante, at 413, 415. Realistically, however, the escapee who reasonably believes that surrender will result in return to what concededly is an intolerable prison situation remains subject to the same “coercive force” that prompted his escape in the first instance. It is ironic to say that that force is automatically “lost” once the prison wall is passed.

*428 The Court’s own phrasing of its test demonstrates that it is deciding factual questions that should be presented to the jury. It states that a “bona fide” effort to surrender must be proved. Ibid. Whether an effort is “bona fide” is a jury question. The Court also states that “[v]ague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense.” Ante, at 415. Traditionally, it is the function of the jury to evaluate the credibility and meaning of “necessarily self-serving statements” and “ambiguous conduct.” See People v. Luther, 394 Mich. 619 , 232 N. W. 2d 184 (1975); People v. Unger, 66 Ill. 2d 333 , 362 N. E. 2d 319 (1977); Esquibel v. State, 91 N. M. 498, 576 P. 2d 1129 (1978).

Finally, I of course must agree with the Court that use of the jury is to be reserved for the case in which there is sufficient evidence to support a verdict. I have no difficulty, however, in concluding that respondents here did indeed submit sufficient evidence to support a verdict of not guilty, if the jury were so inclined, based on the necessity defense. Respondent Bailey testified that he was in fear for his life, that he was afraid he would still face the same threats if he turned himself in, and that “[t]he FBI was telling my people that they was going to shoot me.” App. 176. 7 Respondent *429 Cooley testified that he did not know anyone to call, and that he feared that the police would shoot him when they came to get him. Id., at 119. 8 Respondent Walker testified that he had been in “constant rapport,” id., at 195, with an FBI agent, who assured him that the FBI would not harm him, but who would not promise that he would not be returned to the D. C. jail. Id., at 200. Walker also stated *430 that he had heard through his sister that the FBI “said that if they ran down on me they was going to kill me.” Id., at 195. 9

*431 Perhaps it is highly unlikely that the jury would have believed respondents’ stories that the FBI planned to shoot them on sight, or that respondent Walker had been in con *432 stant communication with an FBI agent. Nevertheless, such testimony, even though “self-serving,” and possibly extreme and unwarranted in part, was sufficient to permit the jury to decide whether the failure to surrender immediately was jus *433 tified or excused. This is routine grist for the jury mill and the jury usually is able to sort out the fabricated and the incredible.

In conclusion, my major point of disagreement with the Court is whether a defendant may get his duress or necessity *434 defense to the jury when it is supported only by “self-serving” testimony and “ambiguous Conduct.” It is difficult to imagine any case, criminal or civil, in which the jury is asked *435 to decide a factual question based on completely disinterested testimony and unambiguous actions. The very essence of a jury issue is a dispute over the credibility of testimony by interested witnesses and the meaning of ambiguous actions.

Ruling on a defense as a matter of law and preventing the jury from considering it should be a rare occurrence in criminal cases. “[I]n a criminal case the law assigns [the fact-finding function] solely to the jury.” Sandstrom v. Montana, 442 U. S. 510, 523 (1979). The jury is the conscience of society and its role in a criminal prosecution is particularly important. Duncan v. Louisiana, 391 U. S. 145, 156 (1968). Yet the Court here appears to place an especially strict burden of proof on defendants attempting to establish an affirmative defense to the charged crime of escape. That action isl unwarranted. If respondents’ allegations are true, society is grossly at fault for permitting these conditions to persist at the D. C. jail. The findings of researchers and government agencies, as well as the litigated cases, indicate that in a general sense these allegations are credible. 10 The case for recognizing the duress or necessity defenses is even more compelling when it is society, rather than private actors, that creates the coercive conditions. In such a situation it is especially appropriate *436 that the jury be permitted to weigh all the factors and strike the balance between the interests of prisoners and that of society. In an attempt to conserve the jury for cases it considers truly worthy of that body, the Court has ousted the jury from a role it is particularly well suited to serve.

See, e. g., C. Silberman, Criminal Violence, Criminal Justice 389 (1978); Report on Sexual Assaults in a Prison System and Sheriff's Vans, in 3 L. Radzinowicz & M. Wolfgang, eds., Crime and Justice 223-228 (2d ed. 1977).

See generally Silberman, supra, at 379-382, 386-392; C. Bartollas, S. Miller, & S. Dinitz, Juvenile Victimization — The Institutional Paradox (1976); C. Weiss & D. Friar, Terror in the Prisons (1974); O. Ballesteros, Behind Jail Bars 26-27 (1979); M. Luttrell, Behind Prison Walls 64-65 (1974).

E. g., Weiss & Friar, supra, at 183-184 (youth having epileptic seizure sprayed with tear gas, resulting in severe trauma); G. Mueller, Medical Services in Prison: Lessons from Two Surveys, in CIBA Founda *422 tion Symposium 16, Medical Care of Prisoners and Detainees 7, 11-16 (1973); J. Mitford, Kind & Usual Punishment 135 (1973); Univ. of Pa. Law School, Health Care and Conditions in Pennsylvania’s State Prisons (1972), reprinted in ABA Comm’n on Correctional Facilities and Services, Standards and Materials on Medical and Health Care in Jails, Prisons, and Other Correctional Facilities 71 (1974); Report of the Medical Advisory Committee on State Prisons to Comm’r of Correction and Sec’y of Human Services, Commonwealth of Mass. (1971), reprinted in ABA Standards and Materials 89.

See, e. g., Weiss & Friar, supra, at 54-60, 163-164, 176-181, 188, 199-200, 222.

See, e. g., Note, Escape From Cruel and Unusual Punishment: A Theory of Constitutional Necessity, 59 B. U. L. Rev. 334, 358-360 (1979); Landman v. Royster, 333 F. Supp. 621, 633-634 (ED Va. 1971); Sostre v. Rockefeller, 312 F. Supp. 863, 869 (SDNY 1970), rev’d in part, modified in part, aff’d in part sub nom. Sostre v. McGinnis, 442 F. 2d 178 (CA2 1971) (en banc), cert. denied sub nom. Sostre v. Oswald, 404 U. S. 1049 (1972); Mitford, supra, at 260-262.

See, e. g., R. Goldfarb, Jails: The Ultimate Ghetto 326-326 (1975) (Official of Oklahoma Crime Commission describes gang rape and concludes: “[if the kid tells the guards] ... his life isn’t worth a nickel”); State v. Green, 470 S. W. 2d 565, 569 (Mo. 1971) (dissenting opinion), cert. denied, 405 U. S. 1073 (1972).

The alleged facts in this case appear to be typical. Respondent Bailey filed suit in the Superior Court of the District of Columbia to “stop the administrators from threatening my life.” App. 176. Bailey testified that the suit caused the guards to threaten him in an attempt to persuade him to withdraw the action, to beat him, and to transfer him to the mental ward. Id., at 154-155. Bailey’s suit subsequently was dismissed with prejudice. Brief for Respondents 15-16, n. 7.

“Q Why didn’t you surrender yourself?

“A I was in fear of my life. I know that if I turned myself in I would still be under the threats of death. Always knew that the FBI wanted to kill me, after I escaped, so I was in limbo. I didn’t know what to do. I did have some people call to the officials at the jail on several occasions.

“Q Let me ask you a question: You stated that you never surrendered yourself, because you were still fearful of the threats?

“A That is right.

“Q Did you understand where you would be returned to?

“A Yes, sir.

“Q Where?

*429 “A The new detention center, 1901 D Street, Southeast.

“Q What section?

“A Northeast 1.

“Q Did you know who the guards would be?

“A The same officers that was there before I left.

“Q Did you ever hear that the FBI was looking for you?

“A Yes, I did.

“Q Didn’t you feel that you could tell the FBI that you didn’t want to return to the D. C. Jail in Northeast 1?

“A No. The FBI was telling my people that they was going to shoot me.” App. 175-176.

“Q Once you left the jail, Mr. Cooley, did you make any attempt to notify anybody in authority to say you were out and did you make any attempt to notify anybody that you were out?

“A Yeah.

“Q To whom?

“A Like I ain’t do it per se. But, like when I went home, you know, my people called and I told them that I had, I told them what happened. Why I had done it. They was mad. I told them why I had done it. They understood, but they called and never got in touch with anybody.

“Q Did you ever make any attempt to call anybody, yourself?

“A I don’t know nobody to call. I’m thinking like this here: They don’t like me in the jail. Ain’t nobody I can call.

“Q Why did you not call anybody at the jail?

“A For what?

“Q Did you feel that there would be any purpose in doing that?

“A It wouldn’t have been none. They probably came and got me, and then make me try to run and they shoot me in half when they come and get me.

“Q So you feared for your life. You could not call for that reason?

“A That is right.

“Q Did you ever leave Washington, D. C., after you left the jail?

“A No.” Id., at 119.

The defendant Walker:

“Now, there is one more issue that I want to briefly touch on here and that is the fact that after I was released from the detention facility I did in fact contact the proper authorities. I contacted the FBI on a number of occasions. As a matter of fact I kept a constant rapport with the FBI. I had people who had told me that they had brought this information to my sisters that the FBI said that if they ran down on me they was going to kill me. So, in actuality I was never out of immediate danger. I was never out of immediate threat of losing my life. If I would have given myself up I had this FBI threat to contend with and I also had to go back over to the same jail that I had just left from, and this was the reason that I consequently never turned myself into the authorities That is my testimony.

“CROSS-EXAMINATION

“Q Mr. Walker, do you know the names of the individuals in the FBI that you retained this constant rapport with during the course of your escape?

“A One of them was an Officer Troy or Fauntroy, or something of that nature. I don’t know if that is his exact name or not.

“Q When did you call him, sir?

“A I called him the second day after I was out, and after that I had occasion to call him on several different occasions.

“Q Did you identify yourself at those times?

“A Yes, I identified myself.

“Q Did you indicate where you were?

“A No, I didn’t indicate where I was.

“Q Did you tell him that you were going to surrender yourself?

“A I told him that I would surrender myself if I wasn’t being subjected to the same conditions and put on the same penitentiary that I had just left from.

“Q How many days did you call this gentleman?

“A I don’t know. I called him two or three different times during the period that I was in the streets.

“Q You were out until December 13th, is that correct?

“A I think that is the date.

*431 “Q Now, sir, where did you make the phone call from to the FBI?

“A I made the first one from a public phone booth.

“Q How did you know what number to call, sir? Did you look it up in the directory?

“A I looked it up in the directory.

“Q Did you ask for anybody in particular at the FBI?

“A No, I just asked to speak to someone on the warrant squad or someone who was connected with escapees.

“Q Would the name Fluharty, does that ring a bell? Would that name Fluharty ring a bell with you as the name of a gentleman you may have spoken to, if you spoke to someone?

“A Sounds halfway familiar.

“Q Exactly what did you tell him, sir?

“A I explained to him that I was one of the four gentlemen that had escaped from the detention facility on August 26th, because of the conditions that existed there.

"I explained to him how terminal the conditions were there and asked him was it any kind of way that I could get with him to make some type of arrangements as far as turning myself in, if I wouldn’t have to go back to the detention facility at 1901 D Street, Southeast and also asked him had there been anything issued concerning, or had he told a man named Earl Berman, whether or not the FBI — or, did he have knowledge that anybody at the FBI had told Mr. Earl Berman that he had intended to kill me if I was arrested.

“Q Who is Earl Berman, sir?

“A Earl Berman is a personal friend of mine.

“Q Are you saying that Mr. Berman told you that the FBI was going to kill you?

“A Yes, he did. He didn’t tell me, but he told my sister and my sister related this information to me.

“Q So, you heard it third-hand?

“A Yes, I heard it second-hand.

“BY MR. SCHAARS:

“Q Now, sir, when exactly was the first time that you called Agent Fluharty or someone by the name of Fauntroy with the FBI?

*432 “A The second day I was out.

“Q Would that be on the 28th, sir?

“A That would be on the 28th.

“Q Do you recall about what time of day it was, sir?

“A I don’t know. It was in the early morning hours. I would say have to be between 4:00 and 6:00.

“Q A. M., sir?

“A A. M.

“Q And, do you know [how] long your' conversation lasted at that point?

“A It had — no longer than a three-minute duration at the most.

“Q And you did identify yourself?

“A I did identify myself.

“Q When was the second time that you spoke to somebody from the FBI?

“A Approximately a week and a half later.

"Q Would it be fair to say that that would be about ten days later, sir?

“A I think that would be fair.

“Q To whom did you speak at that time?

“A To the same person.

“Q Did you ask for him at that time, sir or—

“A Yes, I did. I had called the FBI building previous to that, told them that I was going to call.

“Q Do you recall what time of day you called at that time, sir?

“A It was about 2:00 in the afternoon.

“Q How long did your conversation take at that time?

“A No more than a three-minute duration then.

“Q Did you identify yourself, sir?

“A Yes, I identified myself.

“Q At that time did you indicate to Agent Fluharty that you were going to turn yourself in?

“A I indicated to him if he could work out the conditions for which I wanted to turn myself in, I would turn myself in.

“Q What were the conditions?

“A Those conditions would be the fact that I wouldn’t be harmed by *433 any agent of the FBI, I wouldn’t be taken back to the detention facility, 1901 D Street, Southeast.

“Q Did there come a time that you spoke to somebody from the FBI again?

“A Yes, there did.

“Q When was that, sir?

“A I would say that would have been about a month later.

“Q Would that be mid-October, sir, or late October or mid-November? I’m sorry, I don’t mean to confuse you.

“A It was in — it was in October. I don’t know whether it was late or — It was around — it was in October, around, between the middle and first part of October.

“Q Now, whom did you speak to at that time, sir?

“A The same guy.

“Q Agent Fluharty?

“A I assume that is his name.

“Q It was somebody on the warrant or escape squad that you were speaking to each time, sir?

“A I assume that he was.

“Q Did you ask specifically for somebody on that squad the first time you called?

“A The first time I called I did.

“Q And the second time, did you ask for the same agent by name?

“A Yes, I did.

“Q And the third time, did you ask for the same agent by name?

“A Yes.

“Q Now, sir, on that third occasion did you offer to come down and turn yourself in?

“A Under certain specified conditions.

“Q The same conditions as you have indicated on the two prior occasions?

“A The very same conditions.

“Q Now, sir, did there come a time when you called the FBI again?

“A To my recollection, no.

“Q So, from the beginning to the middle of October, whenever that *434 third phone call occurred, to December 13th, you had no contact with the FBI?

“A To my recollection, no.

“Q Did you call any other law enforcement agency during that period of time, sir?

“A No, I didn’t.

“Q Did you ever appear in any court of the District of Columbia to turn yourself in during that period of time?

“A No, I didn’t.

“Q Did you ever talk to a minister or a priest or any kind of religious leader in an effort to turn yourself in during that period of time?

“A Yes, I did. I’m a minister myself.

“Q You are, sir? Did you speak to another member of your faith, a minister?

“A Yes, I did.

“Q To whom did you speak, sir?

“A I don’t want to give his name at this time. I don’t want to incriminate him as far as anything, as far as my escape and everything is concerned. You’d have him up here for a charge.

“Q Did you tell that gentleman that you were going to turn yourself in?

“A I told him — I had discussed turning myself in with a member of the FBI and I thought very seriously about it, if the conditions that I had specified to you could be worked out.

“Q When you spoke to this gentleman from the FBI, did he ever indicate that he would agree to' those conditions?

“A No, he didn’t.

“Q Did he indicate that he would agree with anything?

“A He indicated that he would agree that I wouldn’t be harmed by any members of the Federal Bureau of Investigation, but that he couldn’t agree that I wouldn’t be taken back to the detention facility, 1901 D Street.

“Q So, he did promise you that the FBI w4sn’t going to hurt you?

“A Yes, he told me that the FBI wouldn't hurt), me.

“Q Did you have any contact with a warrant squad officer of the District of Columbia Department of Corrections during your period of elopment [sic] ?

“A Not to my recollection, unless he is part of that warrant squad.” App. 195-200.

In addition to the sources cited above, see American Assembly, Prisoners in America (1973); S. Sheehan, A Prison and a Prisoner (1978); Y. Williams & M. Fish, Convicts, Codes, and Contraband (1974); Inside— Prison American Style (R. Minton, ed. 1971); T. Murtón, The Dilemma of Prison Reform (1976); American Friends Service Committee, Struggle for Justice, A Report on Crime and Punishment in America (1971); Behind Bars: Prisoners in America (R. Kwartler ed. 1977); B. Bagdikian & L. Dash, The Shame of the Prisons (1972); Note, 13 Ga. L. Rev. 300 (1978); Note, Intolerable Conditions as a Defense to Prison Escapes, 26 UCLA L. Rev. 1126 (1979); Comment, 127 U. Pa. L. Rev. 1142 (1979); Note, 54 Chi.-Kent L. Rev. 913 (1978); Comment, 26 Buffalo L. Rev. 413 (1977); Plotkin, Surviving Justice: Prisoners’ Rights To Be Free from Physical Assault, 23 Cleve. St. L. Rev. 387 (1974); Note, 45 S. Cal. L. Rev. 1062 (1972) ; Note, 36 Albany L. Rev. 428 (1972).