Petition — United States v. Bailey

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DEC 18 1978

HRP POLK IR, CL

78-990

No.

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

CLIFFORD BAILEY, ET AL.

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES T. COGDELL

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KENT L. JONES

Assistant to the Solicitor General

JOHN F. DEPUE

Attorney

Department of Justice

Washington, D.C. 20530

Page

I i cosdativenienincs 1

Sit EINEISESI VASE ARNIS RA CONS OCA 2

IAT N A ALEC 2

ERR Siar ae Soe rte a Oe ee 2

ge PRET ESI dll 0c OREN LORE 3

A. Respondents Bailey, e¢ al. -................. 3

B. Respondent Cogdell .............................. 7

C. The decision of the court of appeals.... 7

Reasons for granting the petition -..................... 13

(BNA ESOL DLE RA OA Gr NE OER 20

EIRP TSE ST Tad OCS Ee la

RRL EE TERN BAO RE Ot SO 93a

DRE + RL ec SE a dee SY 95a

Tiel STEER so LTS a 97a

I TI tn caciercnscitcctinsahia sore aemctnnnseenpioese Lec 98a

Appendix F .......... Kc hnsnseesnonentteitetytpeatatejgnenfoainenones 100a

yg CERISE REST ARE IN SOY NNN aT 1l4a

pS SETURL RE A a a 116a

PL REESE Se eh RW ec trek 117a

CITATIONS

Cases:

Chandler v. United States, 378 F.2d 906.. 15, 19

Dempsey v. United States, 283 F.2d 934.. 18

Jones v. North Carolina Prisoners’ Labor

es I RS Oy cies eos... 16

Cases—Continued Page

Morissette v. United States, 342 U.S. 246.. 15

Pell v. Procunier, 417 U.S. 817 ...............- 16

People v. Lovercamp, 43 Cal. App. 3d 828,

SER RE RO cee enesenerresinenne 11,19

Shannon v. United States, 76 F.2d 490.... 17

State v. Boleyn, 328 So.2d 96 .............-..---- 19

Stewart v. United States, 370 A.2d 1374.. 12

United States v. Boomer, 571 F.2d 548... 19

United States v. Cluck, 542 F.2d 728, cert.

destiod: 420° UE: O06 icc 15

United States v. Chapman, 455 F.2d 746.. 15

United States v. Jones, 569 F.2d 499........ 15

United States v. McCray, 468 F.2d 446... 15

United States v. Michelson, 559 F.2d 567.. 11, 19

United States v. Nix, 501 F.2d 516 .......... 8, 15

United States v. Spletzer, 585 F.2d 950.... 19

United States v. Wood, 566 F.2d 1109 ...... 17

United States v. Woodring, 464 F.2d

PMS IRES IR Ses gr Pak BO Te hn Me 15

Statute:

yy BUN. Wey 5h: |) pptnthee Cee rae merece ce 2,3, 7,14

D.C. Code 22-2601 ........... Mb iil Secale abi 3

Miscellaneous:

1 Burdick, Law of Crime (1946) ..............

Model Penal Code (Tent. Draft No. 4,

* 3 GSES ioe BNP HERE DR tite Rena JET eae OE OR 14

Perkins, Criminal Law (2d ed. 1969) ...... 14

3 Wharton’s Criminal Law and Procedure

Wp Be GARR AEP EIR LY SES EL TODS Nett 14

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, PETITIONER

CLIFFORD BAILEY, ET AL.

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES T. COGDELL

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit in these cases.

OPINIONS BELOW

The opinions of the court of appeals (Apps. A, F,

infra, 1la-91a, 100a-113a) are not yet reported.

(1)

JURISDICTION

The judgments of the court of appeals (Apps. B,

G, infra, 93a-94a, 114a-115a) were entered on July

12, 1978. The government’s petitions for rehearing

and suggestion for rehearing en banc (Apps. D, E,

H, I, infra) were denied on October 19, 1978. On

November 13, 1978, The Chief Justice extended the

time within which to file a petition for a writ of

certiorari to December 18, 1978. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the federal escape statute, 18 U.S.C.

751(a), prohibits escape only from “normal aspects

of ‘confinement’” and does not prohibit an escape

motivated by a prisoner’s desire to avoid onerous jail

conditions.

2. Whether duress may be raised as a defense

in an escape prosecution where the defendant (a)

was not threatened with imminent harm from harsh

prison conditions at the time of the escape and (b)

remained in hiding following the escape and did not

return to lawful authorities or pursue civil, admin-

istrative, or judicial remedies to cure the claimed

improper prison conditions.

STATUTE INVOLVED

18 U.S.C. 751(a) provides:

Whoever escapes or attempts to escape from

the custody of the Attorney General or his au-

thorized representative, or from any institution

or facility in which he is confined by direction

of the Attorney General, or from any custody

under or by virtue of any process issued under

the laws of the United States by any court, judge,

or magistrate, or from the custody of an officer

or employee of the United States pursuant to

lawful arrest, shall, if the custody or confinement

is by virtue of an arrest on a charge of felony,

or conviction of any offense, be fined not more

than $5,000 or imprisoned not more than five

years, or both; or if the custody or confinement

is for extradition or by virtue of an arrest or

charge of or for a misdemeanor, and prior to

conviction, be fined not more than $1,000 or im-

prisonment not more than one year, or both.

STATEMENT

A. Respondents Bailey, et al.

Following a jury trial in the United States Dis-

trict Court for the District of Columbia, respond-

ents Bailey, Cooley, and Walker were convicted of

escaping from the custody of the Attorney General,

in violation of 18 U.S.C. 751(a).* They’ were sen-

tenced to five years’ imprisonment, to be served con-

secutively to sentences previously imposed.’

* Respondents were also charged with “prison breach” in

violation of D.C. Code 22-2601. The jury was instructed that

if they found the defendants guilty under the federal escape

statute, they should not consider the charge under the D.C.

Code (Tr. 804).

? Bailey was serving a 23-year sentence for bank robbery

and attempted escape. Walker was serving a 15-year sentence

for bank robbery. They had been brought from other federal

The government’s evidence showed that in the

early morning hours of August 26, 1976, respond-

ents Bailey, Cooley, and Walker escaped from the

New Detention Center of the District of Columbia

Jail by climbing through a low-level window (App.

A, infra, 37a; Tr. 562). They were apprehended

by FBI agents in the District of Columbia on No-

bember 19, September 17, and December 13, 1976,

respectively (Tr. 65-66).

Respondents did not dispute at trial that they had

fled from the jail without permission. They claimed,

however, that their escape was excusable because of

intolerable conditions at the jail. They produced tes-

timony from other jail inmates that fires were fre-

quently set in the cellblock where respondents were

confined and that the resulting smoke often made

breathing difficult for several hours (Tr. 150-152,

161-163, 203-206, 354, 877-379, 390). Testimony

was also elicited that, several weeks prior to the

escape, Bailey and Cooley were assaulted by guards

armed with blackjacks and that, sometime in Au-

gust, guards threatened to kill Bailey if he testified

in a case in which he had been subpoenaed as a wit-

ness (Tr. 154, 360-370, 373-375, 380, 389, 393, 404,

prisons to the District of Columbia Jail pursuant to writs of

habeas corpus ad testificandum issued by the Superior Court —

of the District of Columbia. Cooley was serving a five-year

sentence in the District of Columbia Jail following his con-

viction for unlawfully possessing an unregistered firearm

(Tr. 13-17, Gov’t Exs. 1, 1-A, 1-B, 2, 2-A, 3, 3-A, 4, 5, 6).

469).° Walker also sought to demonstrate that he

was receiving inadequate medical treatment for an

alleged epileptic condition (e.g., 488-458, 603-604,

625, 650-652, 678-680).* Finally, Cooley testified

that, on the morning of the escape, Bailey and Walker

threatened to kill him if he did not join them. He

admitted, however, that he left the jail by himself

and did not know whether Bailey and Walker left

at all (Tr. 402, 406, 424-425).

Walker and Bailey asserted that they had taken

steps to contact police authorities following their

escape. Bailey claimed that he “had [the FBI]

called;” Walker testified that he “kept a constant

rapport with the F.B.I.” and attempted to negotiate

terms for his surrender (Tr. 564, 710-711, 715-716).

These claims were contradicted by the testimony of

FBI agents (Tr. 730-732). Each of the respondents

admitted that they did not surrender following their

escape but remained in hiding instead (Tr. 418-419,

564, 721-722).

At the close of the evidence, respondents requested

an instruction on the defense of duress on the theory

8’ Neither respondent reported to jail officials that the alleged

assaults or threats had occurred (Tr. 246, 255, 273). Cor-

rection officers testified that no such incidents took place (Tr.

855, 741, 742).

* The evidence presented to support this claim was a medical

history provided by respondent Walker himself. The claimed

epileptic condition was undiagnosed by medical authorities.

Despite this lack of substantiation, medication had been pre-

scribed by a jail physician to control the alleged seizures

(Tr. 488-439, 680-681).

that their escape was compelled by the allegedly in-

tolerable jail conditions. The-trial judge ruled, how-

ever, that this defense was unavailable because the

respondents had failed to surrender to lawful au-

thorities following their escape (Tr. 725, 777). The

judge instructed the jury as follows (Tr. 806) :°

You are instructed as a matter of law that

conditions at the District of Columbia Jail or the

new detention center, no matter how burdensome

or restrictive an individual inmate may find them

to be, are not a defense to the charges in this

case, nor justification for the commission of the>

offense of escape.

The judge also instructed the jury that escape is a

“seneral intent” offense, and that a general intent

is only “the purpose to do something, the will to do

the act. It means the act was done consciously and

not inadvertently or accidentally” (Tr. 803).

5’ The court elaborated on this in its instruction (Tr. 806-

807) :

Now, the court permitted the defendants to introduce

this evidence and to seek to show that following their

escape they turned themselves in, for if one, after escap-

ing has turned himself in, then the defense of coercion

or duress may be brought to the attention of the jury

as a defense, but only if a defendant turns himself in.

Now, there are recognized procedures for this to be

done, and requisite protections insured by such action.

As the Court heard the evidence, that was not done in this

case. So the Court felt that it was incumbent upon the

court to assume responsibility for this aspect of the case,

and to take it out of the case in effect. So, you are not

to consider the defense of duress or coercion for the

reasons stated. The defendants did not turn themselves

in.

B. Respondent Cogdell

Respondent Cogdell was indicted with the other

respondents for the same escape incident at the Dis-

trict of Columbia Jail. His case was severed, how-

ever, and tried before a separate jury. He was con-

victed of escape in violation of 18 U.S.C. 751(a)

and sentenced to five years’ imprisonment (Cogdell

Tr. of July 6, 1977, at 31).

The evidence showed that Cogdell escaped from the

District of Columbia Jail on August 26, 1976, and

was apprehended on September 28, 1976, while hid-

ing in the closet of a residence in Hyattsville, Mary-

land (I Cogdell Tr. 26, 56).° Cogdell offered to prove

at trial that his escape was compelled by intolerable

conditions at the District of Columbia Jail (I Cogdell

Tr. 14). Since Cogdell had not surrendered to au-

thorities following his escape, however, the trial

judged ruled that Cogdell was not entitled to raise

the proposed defense and excluded the proferred evi-

dence (I Cogdell Tr. 11-14).

C. The Decision of the Court of Appeals

The court of appeals, with one judge dissenting,

reversed the convictions in both cases and remanded

® Cogdell had been brought to the District of Columbia Jail

under a writ of habeas corpus ad prosequendum to appear

for a status call in the District of Columbia Superior Court,

where he had been indicted for forgery, unauthorized use of a

vehicle, and carrying a pistol without a license (I Cogdell Tr.

22-29). He was transferred to the District of Columbia Jail

from the Fairfax County Jail in Virginia, where he had been

committed following a state conviction for uttering and de-

livering a forged instrument (App. F, infra, 102a & n.8).

for new trials. The majority concluded that the trial

court erred in its instructions concerning the intent

element of the escape offcase and in its imposition

of a “return requiremenv’ on the defense of duress.

a. The court reasoned that any attempt to label

the escape offense as a “general intent” crime or a

“specific intent” crime only impedes analysis (App.

A, infra, 7a). The court stated that the word “es-

cape” is not “self-defining,” but that it implies “an

intent to leave and not to return” (ibid., quoting

United States v. Nix, 501 F.2d 516, 518 (7th Cir.

1974) )}, or “an intent to avoid confinement” (App.

A, infra, 8a). The court noted that the “intent to

avoid confinement” is ordinarily established merely

by proof of the act of fleeing jail (7d. at 9a). The

court reasoned, however, that where the defense of-

fers “evidence of jail conditions, threats, and violence

such as that presented [by respondents],” it is at

least questionable whether the escape was based on

an intent to avoid “confinement” or an intent to avoid

abnormal and onerous conditions present at the jail

(id. at 10a). The court sharpened its exposition in a

footnote, explaining that the intent element of the es-

cape offense is the intent to avoid “normal condi-

tions of confinement” (id. at 9a n.17; emphasis in

original) :

[I]f a prisoner offers evidence to show that he

left confinement only to avoid conditions that are

not normal aspects ef “confinement’”—such as

beatings in reprisal for testimony in a trial, fail-

ure to provide essential medical care, or homo-

ee :

sexual attacks—the intent element of the crime

of escape may not be satisfied.

On this basis, the court concluded that the trial

court erred in instructing the jury that the intent

element of the crime encompassed only the general

intent consciously and willfully to flee from confine-

ment. Instead, where the issue of intent is raised

by the defense, the court ruled that it is for the jury

to decide whether the defendant was motivated by

the improper desire to avoid “confinement” per se,

or the permissible desire to avoid onerous conditions

“that are not normal aspects of confinement” (id. at

9a n.17, lla).’

b. The court of appeals also held that it was error

for the trial judge to refuse to submit the defense

of duress to the jury on the ground that respondents

failed to surrender to lawful authorities fellowing

their escape. The court observed initially that the

respondents’ evidence c. threats and harsh condi-

tions of confinement “does not establish a classic

[duress or] ne_zssity defense” (id. at 17a n.29). As

the court noted (id. at 16a n.29):

™ Where the issue of intent is raised by the defendant, the

court stated (App. A, infra, lla) that the

prosecutor may argue that the conditions allegedly

necessitating the defendant’s departure from custody

were relatively mild, that alternative remedies short of

escape (e.g., resort to prison authorities or the courts)

were available, or that the defendant failed to return

voluntarily to custody once the conditions allegedly moti-

vating the escape no longer threatened him.

The duress defense normally requires a defend-

ant to establish that he engaged in criminal con-

duct only because he was compelled to do so by

another person’s unlawful threat which caused

him reasonably to believe that he must commit

a crime to avoid imminent death or serious bodily

harm to himself or a third person.

The evidence of harsh prison conditions in this case

concerned events preceding the escape, and there was

no evidence that, at the time the escape occurred,

the respondents faced imminent harm from the

claimed improper jail conditions (id. at 63a) (Wil-

key, J., dissenting). The court of appeals, however,

dismissed the requirement of imminent or “immedi-

ate harm” as “particularly inappropriate in escape

cases, where a possibility of escape * * * is not likely

to remain available until a substantial threat be-

comes ‘immediate’ * * *” (id. at 21a n.39). The

court concluded that there was sufficient evidence

of harsh conditions for the defense of duress to be

submitted to the jury in this case.*

The court held that the district court erred in

refusing to submit the duress defense to the jury

because of respondents’ failure to return to lawful

custody following their escape. The court acknowl-

edged that both state and federal decisions have held

that the defense of duress may be raised in escape

prosecutions only where the defendant has volun-

tairly returned to custody following the escape (id.

®In so holding, the court of appeals noted that the district

court had indicated that it would have submitted the duress

defexse to the jury but for respondents’ failure to return to

lawful custody following their escape (id. at 22a-23a n.43).

at 23a, citing, e.g., United States v. Michelson, 559

F.2d 567 (9th Cir. 1977); People v. Lovercamn, 43

Cal. App. 3d 828, 118 Cal. Rptr. 110 (1974). The

court reasoned, however, that these cases stand only

for the proposition that the duress defense “lasts

only as long as the [conditions justifying escape

continue]” (App. A, infra, 24a). The court concluded

that, where a defendant fails to return to custody

after the escape, the question whether “the condi-

tions establishing the defense * * * continue for the

period [the] prisoner remains at large” (id. at 26a

n.52) is a question for the jury, not the trial judge,

to determine (id. at 25a-26a).

c. Judge Wilkey dissented. He noted first that

the majority’s formulation of the intent element of

the escape offense is a radical departure from the

common law definition of the crime, which, in the

absence of any contrary legislative history, Congress

presumably adopted in its enactment of 18 U.S.C.

751(a) (App. A, infra, 74a-78a). He concluded

that the majority’s construction of the federal statute

to prohibit escape only from “normal aspects of con-

finement” is in conflict with numerous decisions un-

der 18 U.S.C. 751(a) and analogous escape statutes,

and that, by weakening the prohibition against es-

cape, it threatens serious consequences for the safe

administration of federal custodial facilities (id. at

78a-80a, 51a). :

With regard to the defense of duress, Judge Wil-

key stated that the relevant question

is not whether a particular condition is or is not

a “normal” incident of prison life, but, rather,

is whether tis condition is such as to raise in

the defendant’s mind a well-grounded apprehen-

sion of serious bodily injury or death [id. at 89a-

90a].

The respondents’ claims of harsh prison conditions,

however, concerned incidents that occurred a con-

siderable time prior to the escape. Judge Wilkey

noted that there was nothing in the evidence to sug-

gest that at the time of the escape the respondents

were acting in response to any imminent threat of

death or serious bodily injury (id. at 63a-64a). He

therefore concluded that respondents’ claims were in-

sufficient as a matter of law to establish the defense of

duress (ibid.).

The dissent noted further that, because of the

significant governmental interest in assuring that

prisoners serve their lawful sentences, courts have

consistently held that the defense of duress may not

be raised in escape prosecutions unless the prisoner

reports to proper authorities after he attains a posi-

tion of safety from the immediate threat (id. at 53a-

59a, citing, e.g., United States v. Michelson, supra;

Stewart v. United States, 370 A.2d 1374 (D.C. Ct.

App. 1977); People v. Lovercamp, supra). Since

a prisoner who escapes from conditions constituting

duress may turn to numerous lawful means by

which to remedy impropér confinement conditions,’

courts have imposed

°“He can turn, for example, to the community, to public

agencies, to public or private legal services, to politicians, to

church groups or other private organizations that are in a

a duty on the escapee, once free, to pursue these

legitimate means of redress, rather than to pur-

sue self-help through continued criminality [App.

A, infra, 59a].

REASONS FOR GRANTING THE PETITION

In its decision in this case, the court of appeals has

departed radically from prior analysis of the crime of

escape. The court’s conclusion that escape constitutes

a crime only when the prisoner is acting with the

intent to avoid “normal conditions of confinement” is

a novel interpretation of the offense; it draws no sup-

port from the statute and is in conflict with numerous

state and federal decisions. The court’s further con-

clusion, that a defense of duress based on harsh

prison conditions may be raised even though the

prisoner has failed to avail himself of lawful civil

remedies and has remained in hiding over a pro-

longed period, converts the crime of escape into a

self-help remedy for undesirable prison conditions.

Under the court of appeals’ analysis, the primary

focus of future escape trials will be a factual assess-

ment of the acceptability or normality of conditions

of confinement.” Neither reason nor precedent, how-

ever, supports the court’s conclusion that Congress in-

position to take the action necessary to protect him from

untowrad danger once he returns to custody” (id. at 59a)

(Wilkey, J., dissenting).

” As Judge Wilkey noted in his dissent, “the circumstances

of prison life are such that at least a colorable, if not credible,

claim of duress * * * can be raised with respect to virtually

every escape * * *” (App. A, infra, 51a).

tended to allow prisoners the option of self-help by

escape as an alternative to lawful civil remedies for

the correction of improper custodial conditions. More-

over, by weakening the prohibition against prisoner

escape, the decision in this case threatens to subvert

prison discipline and endanger corrections personnel.

1. The court of appeals’ reformulation of the crime

of escape to require proof of a specific intent to avoid

“normal” incidents of confinement is without support

in the common law or the history of the statute.

The offense of escape at common law was a general

intent crime that required proof only of a voluntary,

unauthorized departure from the physical limits of

lawful custody. App. A, infra, 74a (Wilkey, J., dis-

senting); Perkins, Criminal Law 501-504 (2d ed.

1969; 3 Wharton’s Criminal Law and Procedure 764

(1957); 1 Burdick, Law of Crime 467 (1946)." As

Judge Wilkey observed in his dissent, there is nothing

in the language or history of the federal escape stat-

ute that reflects any intent to alter the common law

elements of this offense. Indeed, the words of the

statute speak in the broadest terms in prohibiting

“escape from * * * custody.” 18 U.S.C. 751(a).

The requirement of voluntariness means only that the

prisoner was aware of and intended his physical action. See,

e.g., Model Penal Code $2.01 (Tent. Draft No. 4, 1955);

Perkins, supra, at 749. A “voluntary” act is an act that is the

product of the actor’s will, regardless whether the actor’s will

is freely exercised. 1 Burdick, supra, at 260-262. If the actor’s

will is coerced, the act remains “voluntary,” but the defense

of duress may be applicable. Jbid. See pages 16-18, infra.

Following the ordinary rule that words used in

a statute are presumed to possess their common-law

meaning where there is no evidence in the legislative

history to the contrary,” federal decisions have con-

sistently construed the escape statute to require only

the general intent to denart from the boundaries of

lawful custody. E.g., United States v. Jones, 569

F.2d 499 (9th Cir. 1978); United States v. Cluck,

542 F.2d 728, 731 n.2 (8th Cir.), cert. denied, 429

U.S. 986 (1976); United States v. Woodring, 464

F.2d 1248, 1251 (10th Cir. 1972). See also United

States v. McCray, 468 F.2d 446, 448 (10th Cir.

1972) ; United States v. Chapman, 455 F.2d 746, 749

(5th Cir. 1972) ; Chandler v. United States, 378 F.2d

906, 908 (9th Cir. 1967). By adding a new element

to the crime of escape, the decision of the court of

appeals in this case conflicts with these decisions.”

12 Morissette Vv. United States, 342 U.S. 246, 263 (1952).

18 The court of appeals’ reliance (App. A, infra, 6a-8a) on

United States v. Nix, 501 F.2d 516 (7th Cir. 1974), is mis-

placed. In Niz, the court of appeals stated that the intent

element of the crime of escape is the “intent to avoid confine-

ment.” 501 F.2d at 519. The court concluded (id. at 519-520;

footnotes omitted) :

If the defendant offers evidence that he was intoxicated

at the time of the offense, the jury must be instructed to

consider whether he was so intoxicated he could not

form an intent to escape.

As Judge Wilkey pointed out in his dissent (App. A, infra,

79a), Nix stands for the proposition that intoxication should

be a defense” to escape regardless whether escape is a general

intent or specific intent crime. Nix provides no support for

the conclusion in this case that the “intent to avoid confine-

ment” that is proscribed by the escape statute is the narrow

intent to avoid “normal aspects of confinement” (App. A,

infra, 9a n.17).

Moreover, the holding of the court of appeals would

make proof of the “normality” or “non-normality” of

conditions of confinement relevant in practically every

escape prosecution. See note 10, supra. The court’s

formulation of the crime would impose upon the jury

the ultimate responsibility of determining appropriate

and normal conditions of confinement.* But there are

no adequate standards by which the jury can be

guided in this inquiry. As a result, escape prosecu-

tions will become wide-ranging investigations into

the adequacy of prison conditions, rather than a

means of enforcing lawfully imposed criminal sen-

tences. The very ambiguity created in the application

of the escape statute under the court of appeals’

analysis offers incentives for prisoners to attempt the

self-help remedy of escape, rather than pursuing law-

ful administrative and judicial remedies for allegedly

impermissible prison conditions.

2. The court of appeals also held that evidence of

harsh prison conditions may create a defense of duress

to an escape prosecution (a) even if the threatened

harm is not imminent at the time of the escape (App.

14 The inevitable effect of an acquittal would be that the

jury would be dictating to prison administrators the condi-

tions of confinement that are normal and appropriate and

that must be maintained to make escape unlawful. Such an

interpretation of the escape offense is, of course, inconsistent

with this Court’s admonition that the determination of prison

administrators is entitled to great deference in the evaluation

of appropriate conditions of confinement. E.g., Jones v. North

Carolina Prisoners’ Labor Union, 433 U.S. 119, 127 (1977) ;

Pell v. Procunier, 417 U.S. 817, 827 (1974).

a ee Seven te .

A, infra, 21a n.39),* and (b) even if the defendant,

after escaping, remains in hiding for a prolonged

period and fails to report to lawful authorities or

seek administrative or judicial correction of the

claimed improper conditions (id. at 23a-26a & n.52).

a. The court of appeals conceded (App. A, infra,

16a n.29) that, except for respondent Cooley (who

claimed that he was forced to leave jail by the threats

of respondents Bailey and Walker), the respondents’

evidence of harsh prison conditions does

not fit within the standard definition of * * *

duress * * * [which] normally requires a de-

fendant to establish that he engaged in criminal

conduct only because he was compelled to de so

by another person’s unlawful threat which caused

him reasonably to believe that he must commit

the crime to avoid imminent death or serious

bodily [injury]. * * *

See also United States v. Wood, 566 F.2d 1108 (9th

Cir. 1977); Shannon v. United States, 76 F.2d 490

(10th Cir. 1935). As Judge Wilkey pointed out in

dissent, the respondents’ evidence related to past inci-

dents and not to imminent threatened harm (id. at

63a-64a)." The majority opinion, however, simply

18 See pages 9-10, 12 & note 7, supra.

w’AS Judge Wilkey pointed out in dissent, even Cooley’s

claim was insufficient because he “‘testified that he had indeed

not been forced to leave prison by Walker and Bailey” (App.

A, infra, 63a; emphasis in original). See page 5, supra.

"The disruption of prison discipline and the danger to

security personnel and the general public from an escape is

readily apparent. Courts have consistently held that harsh

severed the immediacy requirement from the duress

defense by stating that the requirement is “inappro-

priate in escape cases, where a possibility for escape

* * * is not [always] available [at the time the

threatened harm is imminent]” (id. at 21a n.39).

The court of appeals’ amputation of the immediacy

requirement in escape cases is supported neither by

reason nor precedent. If the defendant was not act-

ing from fear of imminent harm, there is no reason

to provide him the option of escape as an alternative

to recourse to lawful administrative and judicial

remedies. The decision in this case is unparalleled

in its suggestion that, where an individual has avail-

able to him both lawful and unlawful means of avert-

ing threatened future harm, society permits the in-

dividual to chose the unlawful course.

b. The court of appeals extended its holding even

further in this regard by stating that, after the de-

fendant has escaped, his continued refusal to report

to authorities is excusable under the theory of duress

‘Gf the conditions establishing the defense * * * con-

tinue for the period a prisoner remains at large”

(App. A, infra, 26a n.52). Thus, even if there was

no imminent threatened harm at the time of the

escape, the prisoner may remain at large with im-

punity until such time as the harsh conditions of

confinement are corrected.

conditions of confinement do not alone afford an adequate

basis for asserting the defense of duress. E.g., Dempsey V.

United States, 283 F.2d 984 (5th Cir. 1960).

Here too the decision of the court of appeals con-

flicts with several federal and state decisions. Other

courts have held that, when an imminent threatened

harm justifies an escape under the theory of duress,

the prisoner must immediately report to proper au-

thorities after the escape and seek a lawful civil rem-

edy for the threatened harm. People v. Lovercamp,

supra, 43 Cal. App.3d at 831-832, 118 Cal. Rptr. at

115; State v. Boleyn, 328 So.2d 95 (La. 1976). See

United States v. Boomer, 571 F.2d 548, 545 (10th

Cir. 1978) ; United States v. Michelson, 559 F.2d 567,

570 (9th Cir. 1977). As the Ninth Circuit explained

in Michelson, (id. at 570), while duress

may shield the escapee from the imposition of

additional punishment, it does not commute the

sentence previously imposed. * * * [A]n escape

will not be excused by reason of duress if the

escapee fails to submit to proper authorities im-

mediately after attaining a position of safety.

* * * [W]Jhen an escapee fails to submit to proper

authorities, the asserted duress defense must be

rejected because as a matter of law it does not

negate the continued absence from custody."

** The court of appeals agreed that escape is a continuing

offense. See also United States v. Spletzer, 585 F.2d 950, 954

(5th Cir. 1976) ; Chandler v. United States, 378 F.2d 906, 907

(9th Cir. 1967). The court concluded, however, that the

failure of respondents to return to custody is a factor for the

jury to consider and that the trial court erred in ruling on

the issue as a matter of law (App. A, infra, 25a-26a). But,

as the Ninth Circuit held in Michelson, the prisoners’ failure

to return makes the duress defense inapplicable as a matter of

law. 551 F.2d at 570. Moreover, there was no factual dispute

as to whether the respondents had failed to return or other-

wise avail themselves of lawful remedies. See pages 5 & note

8, 7, supra.

The return requirement in escape prosecutions

serves several significant purposes. It is a barrier

against manipulation of the duress defense by those

whose subsequent conduct reveals a lasting intent to

avoid serving their lawful term of custody. It assures

that when conditions constituting duress do exist, the

prisoner will not be justified in remaining perpetually

at large and thus avoid his lawful sentence. Finally,

it requires the prisoner to seek redress of improper

conditions by lawful, rather than criminal, conduct

and thus favors institutional reform over personal

rebellion.

CONCLUSION

The petition for a writ of certiorari should be

granted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KENT L. JONES

Assistant to the Solicitor General

JOHN F. DEPUE

Attorney

DECEMBER 1978

ee EGE LEO ES Se we

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1404

UNITED STATES OF AMERICA

vV.

CLIFFORD BAILEY, APPELLANT

No. 77-1413

UNITED STATES OF AMERICA

Vv.

RONALD CLIFTON COOLEY, APPELLANT

No. 77-1502

UNITED STATES OF AMERICA

Vv.

RALPH WALKER, APPELLANT

Appeals from the United States District Court

for the District of Columbia

(D.C. Criminal No. 76-735)

Argued December 5, 1977

Decided July 12, 1978

David A. Levitt (appointed by this court) for appel-

lant in No. 77-1404.

Robert A. Robbins, Jr. (appointed by this court) for

appellant in No. 77-1413.

John Townsend Rich (appointed by this court) for ap-

pellant in No. 77-1502.

David G. Hetzel, Assistant United States Attorney,

with whom Earl J. Silbert, United States Attorney, and

John A. Terry and Steven R. Schaars, Assistant United

States Attorneys, were on the brief, for appellee. Wit-

liam D. Pease and James F. Hibey, Assistant United

States Attorneys, also entered appearances for appellee.

Before WRIGHT, Chief Judge, and MCGOWAN and

WILKEY, Circuit Judges.

Opinion for the court filed by Chief Judge WRIGHT.

Dissenting opinion filed by Circuit Judge WILKEY.

WRIGHT, Chief Judge: Appelianis in these criminal

jury cases were convicted of violating 18 U.S.C. § 751

(a) (1976)* by escaping “from the custody of the Attor-

1 §751. Prisoners in custody of institution or officer

(a) Whoever escapes or attempts to escape ‘from the

custody of the Attorney General or his authorized repre-

sentative, or from any institution or facility in which he

is confined by direction of the Attorney General, or from

ney General” when they departed from the New Detention

Center of the District of Columbia Jail (‘Northeast

One”) in the early morning hours of August 26, 1976.

Appellants Bailey and Walker had been brought from

federal prisons where they were serving sentences for

federal crimes to the D.C. Jail pursuant to writs of

habeas corpus ad testificandum issued by the Superior

Court of the District of Columbia’; appellant Cooley was

serving a sentence in the D.C. Jail for a federal crime.

Appellants raise various issues, both individually and in

common, but only two require extended discussion *:

whether the trial court erred in refusing to let the jury

any custody under or by virtue of any process issued

under the laws of the United States by any court, judge,

or magistrate, or from the custody of an officer or em-

ployee of the United States pursuant to lawful arrest,

shall, if the custody or confinement is by virtue of an

arrest on a charge of felony, or conviction of any offense,

be fined not more than $5,000 or imprisoned not more

than five years, or both; or if the custody or confinement

is for extradition or by virtue of an arrest or charge of

or for a misdemeanor, and prior to conviction, be fined

not more than $1,000 or imprisoned not more than one

year, or both.

Appellants were also charged with violating 22 D.C. Code

§ 2601 (1973), the “local” statute defining the offense of

“prison breach.” The jury was instructed that if they found

the defendants guilty as charged under the federal escape

statute, they should not consider the sharge under the D.C.

Code. Tr. 804.

? Courts issue writs of habeas corpus ad testificandum when

it is necessary to bring a person who is confined in a prison or

jail (usually serving a sentence for a previous conviction) into

court to testify in a pending case. See generally Ex parte

Bollman, 8 U.S. (4 Cranch) 75, 97 (1807) (Marska'l, C.J.); 3

W. BLACKSTONE, COMMENTARIES *129-131. Appellants were

brought to the District to testify in a case pending before the

Superior Court..

’ For a brief discussion of the other issues, see note 68 infra.

consider whether evidence of threats, assaults, and condi-

tions in the jail either negated the intent required to

commit the crime of escape or provided a defense of

duress, and whether the prosecution’s evidence and the

trial court’s instructions were adequate on the issue of

whether appellants were in the custody of the Attorney

General by virtue of the convictions alleged in the indict-

ment. We conclude that appellants are entitled to a new

trial because the trial court did not properly instruct the

jury as to what constitutes an “escape” and excluded

relevant evidence from the jury’s consideration. We also

find that the trial court’s instructions on the custody

element were in some respects confusing and potentially

misleading, but these problems will presumably be cor-

rected in the new trial.

Appellants first contend that the trial judge erred in

refusing to let the jury consider certain allegedly excul-

patory evidence. The evidence in question sought to es-

tablish that there were frequent fires in the D.C. Jail

where appellants were confined, set by both inmates and

guards, and often allowed to burn while the inmates

‘suffered from lack of proper ventilation,* that appellants

had been threatened with physical violence by guards,’

that appellants Bailey and Cooley had actually been beaten

by guards,* that appellant Walker had epilepsy and had

* See, e.g., Tr. 150-152, 161-163, 168, 371, 377-378, 381, 390,

415, 547.

* See, e.g., Tr. 154, 368-370, 389-394, 411, 469-473.

* See, e.g., Tr. 368, 373-375, 404-405, 412, 475-478. Appel-

lants Bailey and Walker were in the D.C. Jail pursuant to

writs of habeas corpus ad testificandum so that they could

testify in a criminal case in the Superior Court of the District

of Columbia. Some of the alleged threats and abusive treat-

ment were allegedly attempts by corrections officers to affect

their testimony. As a result of this treatment appellant Bailey

received inadequate medical treatment for his condition,’

and that appellant Cooley had been forced by his co-

appellants to leave the jail.* Appellants argued in the

District Court and assert again on appeal that this evi-

dence was relevant either as negating the specific intent

they claim is required as an element of the crime of

escape or as establishing a defense of duress. |

The trial court admitted this evidence during the trial,

but effectively precluded the jury from considering it with

regard to intent by holding that the crime of escape

requires only general, rather than specific, intent.° The

court also refused to allow the jury to consider the de-

filed a suit in Superior Court against various guards, but the

abusive treatment allegedly continued after the suit was filed.

See, e.g., Tr. 529-533.

* See, e.g., Tr. 488-458, 603-604, 625, 650-652, 678-680; ap-

pellant Walker’s Exhibit 2-A.

8 See Tr. 404-405.

*° Tr. 773. See text at note 22 infra. Any doubt the jurors

may have had as to the relevance of appellants’ evidence to

the issue of intent as defined by the trial court would have been

resolved by the following instruction given by the court at the

end of the case:

Now, ladies and gentlemen, the question has been

raised during the course of this trial as to conditions at

the District of Columbia Jail. I wish to say this to you

with respect to that institution:

You are instructed as a matter of law that conditions

at the District of Columbia Jail or the new detention cen-

ter, no matter how burdensome or restrictive an indi-

vidual inmate may find them to be, are not a defense to

the charges in this case, nor justification for the commis-

sion of the offense of escape.

Tr. at 806. Furthermore, when the same judge later presided

at the trial of a related case, he refused even to admit this

type of evidence. See United States v. Cogdell, —— F.2d ——,

—— n.2 (D.C. Cir. No. 77-1602, decided July 12, 1978)

(slip op. at 2-8 n.2).

fense of duress, holding that the duress defense is avail-

able only when the person asserting it turns himself in,

and that this prerequisite was absent in appellants’ cases

as a matter of law.”

A. Intent

Our consideration of the relevance of the evidence in

question to the elements of the crime of escape under

18 U.S.C. § 751(a) leads us to agree with the Seventh

Circuit in United States v. Nix, 501 F.2d 516 (7th Cir.

1974), that a great deal of unnecessary confusion has

been generated by the use of ill-defined terms and con-

cepts such as “specific” and “general” intent.“ Much of

11 See United States v. Nix, 501 F.2d 516, 518 (7th Cir.

1974); W. LAFAVE & A. Scott, HANDBOOK ON CRIMINAL LAW

201-202 (1972).

The dissent characterizes the court’s opinion as a “boule-

versement” that would create chaos in place of the alleged

stability of traditional categories of criminal law—in large

part because the court deals with the evidence at issue in this

case under the rubric of “intent” as well as that of duress or

necessity. The essential differences between the court and the

dissent center around the proper roles of judge and jury, see

note 28 infra, and are hardly so far-reaching as the dissent’s

rhetoric suggests. Furthermore, the dissent exaggerates the

stability of the law with regard to the defenses of duress and

necessity. The rigid restrictions on the availability of these

defenses upon which the dissent relies have been rejected by

several modern statutes, including the Model Penal Code, and

by several courts in escape cases. See, e.g., People v. Unger,

66 Ill.2d 333, 362 N.E.2d 319 (1977); People v. Luther, 394

Mich. 619, 2832 N.W.2d 184 (1975); People v. Harmon, 53

Mich.App. 482, 220 N.W.2d 212 (1974) ; AMERICAN LAW INSTI-

TUTE, MODEL PENAL CODE §§ 2.09 (Duress), 3.02 (Justifica-

tion Generally: Choice of Evils) (Proposed Official Draft

1962); Hawaii Rev. Laws § 249-5 (1955); Ill. Rev. Stat., ch.

38, § 7-13 (1975). See also text and notes at notes 29-52 infra.

The dissent’s accusation that the court is relying on “intent”

because these other defenses are clearly unavailable on the

facts of this case is thus without foundation.

this unhelpful complexity can be avoided by returning to

basic principles—beginning with a clear definition of the

crime of escape and proceeding to consider the proper

roles of prosecution, defense, court, and jury in trying

escape cases.

Consciously ignoring labels such as “specific” and “gen-

eral” intent, the court in Nix concentrated on “what

constitutes the ‘escape’ element of the crime.” 501 F.2d

at 518. Although “escape” is usually treated as a single

element of the offense defined in Section 751(a), the word

“escape”—like many other legal terms “—is not self-

defining. A jury needs more instruction than this one

word if it is properly to consider whether a defendant

has “escaped.” The Seventh Circuit found that “[m]ost

courts, confronted with evidence that a defendant could

not or did not form an intent to leave and not to return,

have held such an intent essential to proof of the crime

of escape.” Jd. (emphasis added).** The court then con- -

% For example, the legal term “rape” is defined as “[t]he

unlawful carnal knowledge of a woman by a man forcibly and

against her will.” BLACK’s LAW DICTIONARY 1427 (4th ed.

1957). And the term “burglary” is defined as “[t]he break-

ing and entering the house of another in the nighttime, with

intent to commit a felony therein, whether the felony be

actually committed or not.” Jd. at 247.

18 United States v. Nix, supra note 11, 501 F.2d at 518-519,

citing, inter alia, United States v. Snow, 484 F.2d 811 (D.C.

Cir. 1973); United States v. Chapman, 455 F.2d 746 (5th Cir.

1972); United States v. McPherson, 436 F.2d 1066 (5th Cir.),

cert. denied, 402 U.S. 997 (1971); Chandler v. United States,

378 F.2d 906 (9th Cir. 1967); Gallegos v. People, 159 Colo.

379, 411 P.2d 956 (1966); People v. Dolatowski, 94 Ill.App.

2d 434, 237 N.E.2d 553 (1968); State v. Pace, 192 N.C. 780,

136 S.E. 11 (1926); State v. Hendrick, 164 N.W.2d 57 (N.D.

1969); State v. Lakin, 131 Vt. 82, 300 A.2d 554 (19738). See

also Helton v. State, 311 So.2d 381 (Fla.App. 1975); Lewis v.

State, 318 So.2d 529 (Fla.App. 1975), cert. denied, 334 So.2d

608 (Fla. 1976). Cases representing the minority view include

People v. Siegel, 198 Cal.App.2d 676, 18 Cal. Rptr. 268 (1961);

People v. Haskins, 177 Cal.App.2d 84, 2 Cal.Rptr. 34 (1960);

cluded that this “close to unanimous” approach of the

courts was justified by “the desire to have one human

element of ‘blameworthiness’ as a basis for punishment” ™

and‘because “a prisoner who has no intent to escape—

because he is grossly intoxicated, or thinks his jailer has

told him to leave, or mistakes the boundaries of his con-

finement, or has a gun held to his head by another inmate

—is not likely to endanger society, as a wilful escapee

is.” Id. at 519.

On the basis of its review of precedents and policies,

the Seventh Circuit defined “escape” for purposes of Sec-

tion 751(a) as “a voluntary departure from custody with

an intent to avoid confinement.” Jd. Following the Sev-

enth Circuit’s analysis, we conclude that an “escape”

occurs when a defendant (1) leaves custody (2) volun-

tarily,** (3) without permission,” and (4) with an intent

to avoid confinement."

State v. Wharff, 257 Iowa 871, 184 N.W.2d 922 (1965). De-

scribing the requisite intent for escape as an “intent to leave

and not to return” is not completely satisfactory since it might

not cover a prisoner who intends to take an unauthorized

temporary leave of absence. The Seventh Circuit’s own ver-

sion of the intent requirement, “an intent to avoid. confine-

ment,” 501 F.2d at 519, captures the sense of these cases

while avoiding the leave of absence loophole. See text and

note at note 17 infra.

4 United States v. Nix, supra note 11, 501 F.2d at 519,

quoting Note, Criminal Attempts—The Rise and Fall of an

Abstraction, 40 YALE L. J. 58, 69 (1930).

15 See, e.g., United States v. Snow, supra note 138.

16 This factor, though not explicitly stated in the Nix defi-

nition, was clearly implied. It is a generally recognized ele-

ment of the definition of “escape” and was included in the

trial court’s definition in this case when the jury was in-

structed that appellants’ departures must be “unauthorized.”

See Tr. 802.

17 The dissent fastens on the words “intent to avoid confine-

ment” and would either reduce them to a statement of “gen-

eral intent” indistinguishable from the “consciously and not

In order to convict a defendant of escape, the prosecu-

tion must prove each of these factors beyond a reasonable

doubt. In the ordinary case the prosecution can establish

a prima facie case that a defendant “escaped” by offering

inadvertently or by accident” instruction given by the trial

court, or expand them to “intent to avoid confinement perma-

nently.” See dissent at 48-49 (emphasis in original). Neither

of these extreme interpretations is appropriate. The word

“confinement” describes the most common form of punish-

ment prescribed by our legal system. Jurors are readily aware

that a person serving a sentence for a crime is “confined”—

i.e., his liberty is restricted—in certain fundamental ways.

For example, he cannot leave the institution wherein he is

confined, he cannot come and go as he pleases, his daily sched-

ule is subject to various controls, his privacy is substantially

curtailed, and he is subject to strict discipline. One who leaves

custody without permission to see his mother who is ill or to

improve his menu (assuming the prison fare is within reason)

has an intent to avoid confinement since restricted contact

with relatives and a reasonably limited choice of diet are

normal incidents of confinement. Furthermore, a prisoner

who leaves custody to take even a temporary “leave of ab-

sence” from the normal conditions of confinement possesses

the requisite intent for escape. On the other hand, if a prisoner

offers evidence to show that he left confinement only to avoid

conditions that are not normal aspects of “confinement”’—

such as beating in reprisal for testimony in a trial, failure to

provide essential medical care, or homosexual attacks—the

intent element of the crime of escape may not be satisfied.

When a defendant introduces evidence that he was subject to

such “non-confinement” conditions, the crucial factual deter-

mination on the intent issue is thus whether the defendant

left custody only to avoid these conditions or whether, in ad-

dition, the defendant also intended to avoid confinement. In

making this determination the jury is to be guided by the

trial court’s instructions pointing out those factors that are

most indicative of the presence or absence of an intent to

avoid confinement. See text and notes at notes 20-21 infra.

Appellant Walker argues further that in order to violate

§ 751 a defendant must have the requisite intent at the time

he leaves custody. Brief for appellant Walker at 40-438. He

argues that § 751 should not be used to convict a prisoner

10a

evidence that the defendant departed from custody with-

out permission. Absent any additional evidence introduced

by the defendant, such a case can be submitted to the jury

with the instruction that the jury may infer the defend-

ant’s intent from the circumstances.“ The defense has

the opportunity, however, to submit additional evidence

tending to negate any essential aspect of the offense. For

example, a jury can consider whether evidence of jail

conditions, threats, and violence such as that presented

by appellants in the District Court raises reasonable

doubts concerning a defendant’s capacity to act “volun-

tarily,” or his intent to avoid confinement.”

who leaves with permission or without an intent to avoid

confinement, noting that Congress has specifically provided a

separate offense for one class of such prisoners—those on

furlough who fail to return as prescribed. See 18 U.S.C.

§ 4082(c) (1976). Courts addressing this issue have not

favored appellants’ position. See, e.g., United States v. Mich-

elson, 559 F.2d 567, 570-571 (9th Cir. 1977); United States v.

Spletzer, 535 F.2d 950 (5th Cir. 1976) ; United States v. Joiner,

496 F.2d 1314 (5th Cir.), cert. denied, 419 U.S. 1002 (1974);

United States v. Woodring, 464 F.2d 1248, 1250 (10th Cir.

1972); United States v. Chapman, supra note 18, 455 F.2d at

749; Chandler v. United States, supra note 13, 378 F.2d at

908. We are sympathetic with the concern expressed in these

cases that a prisoner should not be allowed to remain at large

with impunity simply because his initial departure did not

under the circumstances constitute a crime. We therefore

agree that the trial court should instruct the jury that a

prisoner who lacks the intent to avoid confinement at the time

he leaves custody may nevertheless commit the crime of escape

if he later forms this intent and therefore fails to report to

the authorities or to turn himself in. See also text and note

at note 43 infra.

8 The jury must of course still apply the “beyond a reason-

able doubt” standard to this inference. See In re Winship, 397

U.S. 358 (1970).

1° In order to be entitled to a special instruction on whether

his intent to avoid confinement was negated by evidence of

conditions in the jail, a defendant must, of course, introduce

some evidence of these conditions. Since the evidence offered

lla

The prosecution then has the opportunity to rebut the

defense’s evidence. The prosecutor can offer evidence of

any circumstances or behavior inconsistent with the de-

fendant’s exculpatory contentions. Depending on that

evidence, a prosecutor may argue that the conditions

allegedly necessitating the defendant’s departure from

custody were relatively mild, that alternative remedies

short of escape (e.g., resort to prison authorities or the

courts) were available, or that the defendant failed to

return voluntarily to custody once the conditions allegedly

motivating the escape no longer threatened him. If the

defendant takes the stand in his own defense, the prose-

cutor can inquire why he did not return voluntarily and

can test the credibility of his defense by the rigors of

cross-examination.

Finally, when instructing the jury on the elements of

the offense charged, the judge should direct the jurors’

attention to those considerations that require special em-

phasis. In addition to specifying the major indicia of

voluntariness and intent—the immediacy, specificity, and

severity of any alleged threats or fears, the availability

of viable alternatives to unauthorized departure, and the

defendant’s decision whether and when to return to cus-

tody—the court should remind the jury of the inevitable

difficulties associated with prison discipline *® and of the

possible biases of defense and prosecution witnesses tes-

by appellants in this case was clearly “substantial,” we need

not decide the minimum threshold of evidence necessary to

entitle a defendant to this instruction. See generally United

States v. Nix, supra note 11, 501 F.2d at 519-520; United

States v. Grimes, 418 F.2d 1376 (7th Cir. 1969); Womack v.

United States, 336 F.2d 959 (D.C. Cir. 1964); Tatum v. United

States, 190 F.2d 612, 617 (D.C. Cir. 1950).

20 Such an instruction should also indicate the general boun-

daries between what is and is not “confinement.” See note 17

supra.

12a

tifying with respect to that aspect of the case.** It is the

jury, however, that must make the final determination

whether the prosecution has met its burden of proving

each of the elements of the crime beyond a reasonable

doubt. The court may not, as the District Court did in

this case, take upon itself the responsibility for making

this determination.

Our analysis of the law of escape indicates that the

District Court erred in its definition of the offense and

consequently precluded the jury’s consideration of evidence

that was relevant to an essential element of the crime.

The trial judge instructed the jury that a defendant “es-

caped” if he “without authorization did absent himself

from his place of confinement.” Tr. 802. Relying on the

opinion of the Tenth Circuit in United States v. Wood-

ring, 464 F.2d 1248, 1251 (10th Cir. 1972), the trial

judge told the jury that only a “general intent” was re-

quired to commit the crime of escape, and that this

“means only that a defendant has the purpose to do some-

thing, the will to do the act. It means the act was done

consciously and not inadvertently or accidentally.” Tr.

803. Woodring is weak authority for the proposition that

escape under 18 U.S.C. § 751 requires only “general’’ in-

tent, since the court’s entire “discussion” of the issue is

limited to the following cryptic and conclusory reference:

The instruction on specific intent is not erroneous

where willfulness is in the indictment. Even though

specific intent is not an element of § 751(a), specific

intent became the law of the case when the Court

21 Cf. United States v. Sheppard, 569 F.2d 114, 118 (D.C.

Cir. 1977) (in a rape case, “[w]here the motivation of the

complainant in bringing the charge is an issue, as in a case

where the defendant contends that she consented to the inter-

course, the defense attorney is free to emphasize to the jury

the dangers of falsification, and the judge should instruct the

jury as to those dangers and the difficulty of establishing

consent”).

13a

gave Instruction 11 [“specific intent must be proved

before there can be a conviction”]. * * *

464 F.2d at 1251 (emphasis added).* As indicated above,

we find the Seventh Circuit’s careful analysis in United

States v. Nix much more persuasive authority.”

22 The indictment in this case also alleged that appellants

“did unlawfully and wilfully flee and escape” from custody.

R. 32 (emphasis added).

28 The dissent attempts to distinguish the Nix case by limit-

ing that case to its facts and asserting that it holds only that

intoxication may negate “general” as well as “‘specific” intent.

Dissent at 42-44. This interpretation of the Nix opinion is

untenable. Condemning the categorical rule that the relevance

of such exculpatory factors as intoxication, coercion, and

mistake depends on the mechanical and artificial classifica-

tion of a crime as involving either specific or general intent,

the Seventh Circuit rejected the specific/general intent termi-

nology altogether and expressly refused to declare whether

escape required “general” or “specific” intent. 501 F.2d at 518.

Instead, the court followed a less categorical approach similar

to that urged by some leading commentators, see W. LAFAVE &

A. ScoTT, supra note 11, at 344: it focused on defining the in-

tent element of the crime of escape and held (1) that a jury

must be properly instructed as to this element, and (2) that if

the defendant introduces adequate evidence of intoxication,

the court should instruct the jury that it must consider

whether the defendant was so intoxicated that he could not

form the requisite intent. The Nix court did not limit its dis-

cussion to intoxication, but indicated its view that such factors

as coercion and mistake could also negate the intent element

of the crime of escape. See, e.g., 501 F.2d at 518 (“Whenever

intoxication (or coercion or mistake) is raised as a mitigating

factor, use of the ‘specific’ and ‘general’ intent labels inter-

feres with the crucial analysis a court should make in escape

cases: what constitutes the ‘escape’ element of the crime?’”).

We do no more than accept the Nix court’s holding that “es-

cape” includes an “intent to avoid confinement” and outline

how a court and jury should consider evidence of extreme

conditions, unrelated to normal confinement, that is relevant

to the existence of that intent. The procedures we adopt closely

parallel those adopted by the court in Nix. See id. at 519-520.

While the dissent seems willing enough to accept the “modern

l4a

The District Court’s attachment to a definition of

“escape” that would effectively prevent the jury from

considering the evidence of conditions in the jail, as-

saults, and threats in relation to appellants’ intent re-

flects a line of cases in which courts, moved by fears of

undermining prison discipline or encouraging mass es-

capes, have hesitated to allow juries even to consider such

allegedly exculpatory evidence in escape cases unless

various rigorous conditions have been satisfied. We find

no adequate justification for this special broad proscrip-

tion against admission of such probative defense evidence

relating to intent. Juries are accustomed to determining

the intent of alleged criminals, and we see nothing in the

context of prosecutions for escape that requires the court

to risk denying the defendants a fair trial by denying

the jury its normal function. Those escape cases in which

juries have been allowed to consider exculpatory evidence

and ascendant view” with respect to intoxication in order to

“distinguish” Niz, it is apparently unwilling to apply the

basic principle underlying that “modern and ascendant view”

to the facts of this case. Instead the dissent prefers to ad-

here to the mechanical specific/general intent terminology

specifically rejected in Nix and to rely on such weak authority

as the Woodring case, see text and note at note 22 supra, for

the proposition that escape is a general intent crime. See

dissent at 42 & n.84.

**Some of the older cases would exclude such evidence

altogether. See, e.g., People v. Whipple, 279 P. 1008 (Cal. App.

1929). Other cases have treated such evidence as relevant

to duress or necessity. defenses and have imposed rigid limits

on the availability of these defenses. See, e.g., People v. Lover-

camp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974); State v.

Green, 470 S.W.2d 565 (Mo. 1971), cert. denied, 405 U.S. 1073

(1972) ; Grubb v. State, 533 P.2d 988 (Okla. Crim. App. 1975);

State v. Worley, 265 S.C. 551, 220 S.E.2d 242 (1975). See

generally Annot., Duress, Necessity, or Conditions of Confine-

ment as Justification for Escape from Prison, 69 A.L.R.3d

678 (1976). Courts adopting a more flexible approach include:

People v. Unger, supra note 11; People v. Luther, supra note

11; People v. Harmon, supra note 11.

15a

offer no support for fears that jurors are unable reason-

ably to consider all the aspects of escape cases or that

juries will render decisions that will “encourage” es-

capes.”> In fact, the assumptions underlying the special

restrictions on defense evidence in escape cases appear to

be pure speculations without any empirical support in

either the case law or the scholarly literature. On the

other hand, the pernicious consequences of the restrictive

rules are all too clear from the reported cases.* As we

have explained above, the proper approach is to inform

the jury of those considerations that are relevant to its

deliberations, not to take the issue out of its hands.” In

our view allowing the jury to perform its accustomed role

in escape cases may make those responsible for prison

conditions more conscious of their responsibilities and

may well lead to fewer, rather than more, escapes. See

People v. Harmon, 58 Mich.App. 482, 220 N.W.2d 212

(1974), aff'd, 394 Mich. 625, 282 N.W.2d 187 (1975).*°

25 See, e.g., United States v. Grayson, 550 F.2d 103 (3d Cir.

1977), cert. granted, —— US. , 46 U.S. L. WEEK 3214

(Oct. 4, 1977); United States v. Cluck, 542 F.2d 728 (8th

Cir.), cert. denied, 429 U.S. 986 (1976); Syck v. State, 130

Ga.App. 50, 202 S.E.2d 464 (1973).

26 See, e.g., State v. Green, supra note 24, 470 S.W.2d at 568

(Seiler, J., dissenting); People v. Whipple, supra note 24.

27 See People v. Unger, supra note 11, 66 Ill.2d at ——, 362

N.E.2d at 323. This court recently affirmed its confidence in

the role of the jury as fact-finder in criminal cases in United

States v. Sheppard, supra note 21. Sheppard discontinued the

corroboration requirement in rape cases, relying on the ad-

versary process and proper judicial instructions to guide the

jury in reaching a just result. See note 21 supra.

28 Despite the length of the dissent, its basic differences

from the opinion of the court can be stated briefly. The funda-

mental theoretical difference is that the dissent refuses to

accept the holding of the Nix court that an “escape” requires

an “intent to avoid confinement.” See note 17 and text and

notes at notes 11-14 supra. The dissent’s motive for rejecting

the Nix holding is related to the basic practical differences

16a

See also United States v. United States Gypsum Co., ——

US. , - , 46 U.S. L. WEEK 4937, 4941-4944

(June 29, 1978).

B. Duress-Necessity-Compulsion-Choice of Evils

In addition to giving an instruction that made the evi-

dence of conditions in the jail, assaults, and threats irrele-

vant to the intent issue, the trial judge refused to let the

jury consider the evidence as grounds for a defense of ‘“du-

ress.” There is some theoretical confusion over the na-

ture of the defenses of duress and necessity, especially in

the context of prison escape cases.” This confusion can

between the two opinions: While the court and the dissent

basically agree on what issues are relevant to weighing evi-

dence of prison conditions in escape cases—e.g., the severity

of conditions, the availability of alternatives to escape, the

promptness and voluntariness of return to custody—the dis-

sent would hold all such evidence irrelevant as a matter of law

unless it is determined that every one of five specific pre-

requisites related to these issues is met. The court, on the

other hand, holds that, at least when a defendant, as in this

case, introduces substantial evidence of extreme conditions,

the jury is not absolutely prohibited from considering such

evidence merely because certain inflexible prerequisites are

not satisfied. In the court‘s view, the factors represented by

the prerequisites are the most significant considerations, but

none of the prerequisites by itself is necessarily determinative.

Once the defendant has presented a threshold amount of evi-

dence, that evidence is to be considered by a properly in-

structed jury. See People v. Unger, supra note 11, 362 N.E.2d

at 323 (quoted in note 37 infra).

2° Most of the arguments and evidence presented by appel-

lants do not fit within the standard definition of a “duress”

or “necessity” defense. The duress defense normally requires

a defendant to establish that he engaged in criminal conduct

only because he was compelled to do so by another person’s

unlawful threat which caused him reasonably to believe that

he must commit the crime to avoid imminent death or serious

bodily harm to himself or a third person. See W. LAFAVE & A.

ScoTT, supra note 11, at 374-381. Only appellant Cooley’s

claim that Walker and Bailey forced him to leave the jail fits

this classic model comfortably. The standard necessity de-

1Ta

be minimized, however, by concentrating on the basic

principles underlying a proffered defense and avoiding

unhelpful labels such as “duress” and “necessity.”

The defenses usually raised under the duress/necessity

labels reflect two different general principles of exculpa-

tion. One of these principles, exemplified by the notion

of duress as compulsion, dictates that a person will not

be held responsible for an offense he commits under threats

or conditions that a person of ordinary firmness would

have been unable to resist. This principie, like the

defenses of intoxication, insanity, and mistake, negates

the intent or voluntariness elements of an offense.” In-

fense is available when “[t]he pressure of natural physical

forces * * * confronts a person in an emergency with a choice

of two evils” and when choosing the lesser of the two evils

requires the person to violate the criminal law. Jd. at 381,

382-388. Since appellants’ evidence involves human threats

and forces, rather than natural physical ones, it does not

establish a classic necessity defense. Courts and commentators

have recognized the difficulties created, particularly in prison

escape cases, by exculpatory evidence falling in between the

traditional duress and necessity defenses and have proposed

various solutions. See, e.g., United States v. Michelson, supra

note 17; People v. Lovercamp, supra note 24; People v. Unger,

supra note 11; People v. Luther, supra note 11; People v.

Harmon, supra note 11; Gardner, The Defense of Necessity

and the Right to Escape from Prison, 49 So. CAL. L. REv. 110

(1975); Comment, Escape: The Deferse of Duress and Neces-

sity, 6 SAN FRAN. L. REv. 480 (1972:; Note, Duress and the

Prison Escape: A New Use for an Old Defense, 45 So. CAL.

L. REv. 1062 (1972); Casenote, People v. Harmon, 220 N.W.2d

212 (Mich. App. 1974), 43 U. CIN. L. REv. 956 (1974); Annot.,

supra note 24.

80 See Model Penal Code § 2.09 (Proposed Official Draft

1962) and Commentary on § 2.09 (Tent. Draft No. 10 1960).

31 The Model Penal Code includes the defense based on this

principle, along with the defenses of intoxication and mis-

take, in Article 2: General Principles of Liability. The Model

Penal Code defense based on the choice of evils principle, on

18a

structions with respect to this type of defense for the

crime of escape are discussed above under “Intent” (I-A

supra) and require no further consideration here.*

the other hand, is included in Article 3: General Principles of

Justification.

The dissent claims that every version of the duress defense

must also satisfy the principle of “social utility” embodied

in the “choice of evils” defense. Dissent at note 92. However,

if, as the dissent suggests, duress can be a defense only where

the harm to be avoided by committing an offense outweighs

the harm caused by committing the offense, then any separate

provision for a duress defense in a code that already contains

a general choice-of-evils-type defense would be mere surplus-

age. Yet, as indicated above, the Model Penal Code contains

both a general choice of evils defense and a duress defense.

82 Appellants requested the following instruction on

“duress”:

A defendant is not criminally responsible for the com-

mission of the crime of willingly and voluntarily escaping

from jail if he committed the act of escaping from in-

carceration as a result of coercion exerted on him.

Coercion which would excuse the commission of a crim-

inal act must result from:

1) Threathening [sic] conduct sufficient to create in

the mind of a reasonable person the fear of death or

serious bodily harm;

2) The conduct in fact caused such fear of death or

serious bodily harm in the mind of the defendant;

3) The fear or duress was operating upon the mind

of the defendant at the time of the alleged act; and

4) The defendant committed the act to avoid the

threatened [sic] harm.

When evidence of coercion or duress is present, the

Government must prove beyond a reasonable doubt that

the defendant did not act under coercion. In other words,

if you have a reasonable doubt whether or not the de-

fendant acted under coercion as the court has defined

it to you, your verdict must be not guilty.

R. 832A. This instruction might: be interpreted as raising only

the type of defense that would be covered under the instruc-

tions on intent set out above. On the other hand, given the

theoretical confusion over the labels of duress and necessity

19a

The other general principle reflected in the discussions

of duress/necessity defenses is one of justification by

choice of the lesser evil—i.e., that a person is not guilty

of an offense if he committed it because he reasonably

believed his action was necessary to avoid a harm more

serious than that sought to be prevented by the statute

defining the offense.** Rather than excusing a defendant’s

action because he lacked the intent society wishes to pun-

ish, this “choice of evils” defense affirmatively justifies

the defendant’s action: the defendant did the right thing,

because “public policy favors the commission of a lesser

harm (the commission of what would otherwise be a

crime) when this would avoid a greater harm.”™ Courts

and legislatures that have recognized this type of defense

have often reflected the theoretical confusion surrounding

the duress/necessity labels more than the fundamental

choice of evils principle by creating “fixed rules which

depart somewhat from the rationale underlying the

[general] rule.”** The tendency of courts to structure

duress/necessity defenses in terms of such fixed rules has

been particularly pronounced in escape cases. The more

and the principles underlying these defenses, appellants’ pro-

posed instruction might also be construed to raise a choice

of evils defense. We therefore consider that type of defense

as well.

88 See, e.g., Ill. Rev. Stat., ch. 38, § 7-13 (1975); Model Penal

Code § 3.02 (Proposed Official Draft .362) and Commentary

on § 3.02 at 5 (Tent. Draft No. 8 1958); W. LAFAvE & A.

Scott, supra note 11, at 378-379, 381-383, Even statements of

the general principle vary in such aspects as the degree of

objectivity required. The Model Penal Code, for example, re-

quires that the balance of harms in fact favor commission of

the crime, regardless of the defendant’s reasonakte belief.

84 W. LAFAVE & A. SCOTT, supra note 11, at 378.

85 Td.

36 See, e.g., cases cited in note 24 supra.

20a

progressive codes and cases, however, have tended to re-

duce the theoretical and practical complexities of the

choice of evils defense to a few general guidelines con-

sistent with its basic rationale.*

8 The Model Penal Code provision reads:

Section 3:02. Justification Generally: Choice of Evils.

(1) Conduct which the actor believes to be necessary to

avoid a harm or evil to himself or to another is justifiable,

provided that:

(a) the harm or evil sought to be avoided by such

conduct is greater than that sought to be prevented

by the law defining the offense charged; and

(b) neither the Code nor other law defining the

offense provides exceptions or defenses dealing with

the specific situation involved; and

tion claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bring-

ing about the situation requiring a choice of harms or

evils or in appraising the necessity for his conduct, the

justification afforded by this Section is unavailable in a

prosecution for any offense for which recklessness or

negligence, as the case may be, suffices to establish cul-

pability.

Model Penal Code § 3.02 (Proposed Official Draft 1962). The

Illinois Code section relied on by the court in People v. Unger,

supra note 11, provides:

Conduct which would otherwise be an offense is justi-

fiable by reason of necessity if the accused was without

blame in occasioning or developing the situation and

reasonably believed such conduct was necessary to avoid

a public or private injury greater than the injury which

might reasonably result from his own conduct.

Ill. Rev. Stat., ch. 38, § 7-13 (1975). The Unger court rejected

an attempt to impose the rigid Lovercamp conditions in prison

escape cases with the following comment:

We agree with the State and with the court in Lovercamp

that the above conditions are relevant factors to be used

2la

In regard to the choice-of-evils-type defense, this par-

ticular case in its present posture at most * presents the

relatively narrow question whether a jury should be al-

lowed to consider an otherwise sufficiently supported ”

choice of evils defense in the absence of one of the special

prerequisites some courts have imposed upon such de-

fenses in escape cases—the requirement that an escapee

turn himself in to the authorities immediately after

in My mye claims of necessity. We cannot say, however,

that the existence of each condition is, as a matter of

law, necessary to establish a meritorious necessity defense.

The preconditions set forth in Lovercamp are, in our

view, matters which go to the weight and credibility of

the defendant’s testimony. The rule is well settled that a

court will not weigh the evidence*where the question is

whether an instruction is justified. * * * The absence of

one or more of the elements listed in Lovercamp would

not necessarily mandate a finding that the defendant

could not assert the defense of necessity.

362 N.E.2d at 323. See also People v. Luther, supra note 11;

People v. Harmon, supra note 11.

38 See note 32 supra.

°° The dissent claims that appellants failed as a matter of

law not only to satisfy the return requirement, but also to

present sufficient evidence of the harm to be avoided to get to

the jury. Dissent at 26-28. The dissent’s view on this point

contradicts the opinion of the trial court, which was willing

to submit a “duress” instruction except for appellants’ failure

to meet the return requirement. See note 43 infra. In our

view the trial court’s conclusion that the evidence on this point

was sufficient to submit to the jury was clearly correct. The

dissent’s narrow insistence on threats of “immediate” harm

as an absolute prerequisite for the choice of evils defense

seems particularly inappropriate in escape cases, where a pos-

sibility for escape (especially nonviolent escape) is not likely

to remain available until a substantial threat becomes ‘“im-

mediate” in the narrow sense urged by the dissent.

22a

escaping.*® After considering appellants’ proposed ‘‘du-

ress” instruction ** and a memorandum on duress/neces-

sity defenses in escape cases submitted by the Govern-

ment,* the trial court announced that it had prepared an

instruction on duress, but at the last moment decided

that it could not give the instruction because, “[a]s the

themselves in or made adequate efforts to do so. Tr. 80

807.*

“ The “return requirement” has been described in various

ways. In this case the trial court refused to allow appellants’

duress instruction because “[t]he defendants did not turn

themselves in.” Tr. 807. Elsewhere in the proceedings the trial

court suggested that “[h]ad these men notified the author-

ities or the public defender in an effort to surrender under

conditions that might have been arranged by the public de-

fender, then I would have permitted the duress and condition

argument.” Tr. 778. People v. Lovercamp, supra note 24, estab-

lishes the return requirement in the following terms:

[A] limited defense of necessity is available if the follow-

ing conditions exist: * * *

* * * *

(5) The prisoner immediately reports to the proper

authorities when he has attained a position of safety

from the immediate threat.

118 Cal.Rptr. at 115.

*1 See note 32 supra for text of appellants’ proposed in-

struction.

* R. 35.

** The trial court expressly stated that if appellants had

satisfied the return requirement, “I would have permitted the

duress and condition argument. In fact, I have here an in-

struction, which I drew up very carefully with that in mind,

but I realized that at the end of which I was calling upon the

jury to make a finding that they couldn’t make, that is to

say that these men had turned themselves in and that is a

prerequisite to the assertion of the defense of duress, or

coercion.” Tr. 778-779. Since the court’s instruction would

Court heard the evidence,” the defendants had not yon & ; ty \

et NF

23a

The most influential statement of the “return require-

ment” as a prerequisite to a choice-of-evils-type defense

in escape cases is contained in the opinion of an inter-

mediate California appellate court in People v. Lover-

camp, 43 Cal.App.3d 832, 118 Cal.Rptr. 110 (1974).“

The Lovercamp court apparently imposed the requirement

because it feared that without it a prisoner who satisfied

the other conditions cf the defense could “thereafter go

his merry way relieved of any responsibility for his un-

seemly departure.” 118 Cal.Rptr. at 115. Subsequent

opinions, most notably the Ninth Circuit’s discussion in

United States v. Michelson, 559 F.2d 567 (9th Cir.

1977) ,*° have developed this rudimentary rationale more

rigorously. The Michelson court’s analysis reveals that

the return requirement is based on the critical assump-

tion that escape is a “continuing” offense, 7.e., that one

may commit the crime of escape, even if his original

departure from custody was justified, by failing or re-

fusing to return to custody once the justifying circum-

stance is no longer present. Thus the Ninth Circuit found

it unnecessary to decide “whether defendant acted out

of duress in escaping” because the defendant in Michel-

son had been absent from custody for nearly two years

and his duress defense applied only to his initial depar-

have been given but for the return requirement, the choice

of evils issue in this case turns on the validity of that require-

ment.

“The Lovercamp court’s version of the return requirement

is quoted in note 40 supra. Since the prisoners in Lovercamp

had been apprehended almost immediately after their de-

parture, the appeals court remanded the case for a deter-

mination of whether appellants intended to surrender to the

authorities.

*> See also Stewurt v. United States, 370 A.2d 1874 (D.C.

Ct. App. 1977).

24a

ture, not to the two years he was at large.” 559 F.2d at

571. In support of its conclusion the Michelson court

cited with approval United States v. Chapman, 455 F.2d

746 (5th Cir. 1972), where “[t]he jury was instructed

that even if they should find that the defendant was ini-

tially forced by other prisoners to leave federal custody,

‘if he thereafter on his own volition decided to remain

at large this would constitute the crime of escape.’” 559

F.2d at 570-71, quoting United States v. Chapman, supra,

455 F.2d at 749 (emphasis added). Under the analysis

in these cases, the return requirement merely stands for

the limited and commonsense notion that a choice of evils

defense to the crime of “escape”—defined as leaving and

staying away from custody—lasts only as long as the

choice of evils justifies a failure to return.

The Ninth Circuit’s analysis indicates that the trial

court’s application of the return requirement in the circum-

stances of this case was inappropriate.” Even if we ac-

cept the notion on which the requirement is based—that

escape is a continuing offense—this theory was not re-

flected in the indictment or in the trial court’s charge to

the jury. Although we would be very sympathetic to a

jury instruction similar to that in Chapman. to the effect

that a defendant can “escape” by failing to return to

‘© The prisoner in Michelson allegedly feared that if he re-

mained in prison he would be harmed by another inmate who

had already injured him in a violent fight. 559 F.2d at 568.

*' Michelson is also distinguishable from this case on the

intent issue. The defense in that case did not raise the issue,

and the court’s comments on the circumstances of the case

indicate the reason for this: “The F.B.I. agent who arrested

Michelson testified that Michelson, having been advised of his

rights, freely admitted escaping * * * [and] also told the

agent that his escape had been prompted not only by his beat-

ing by Santini, but also by the lengthy twenty-two year sen-

tence imposed for the bank robbery and the Parole Board’s

refusal to set a release date for him.” 559 F.2d at 568.

25a ~

custody even if his initial departure was justified and

that a choice of evils defense to escape must therefore

justify not only a defendant’s original departure but also

his continued absence,“ no such instruction was given in

this case. Instead, appellants were indicted for “flee[ing]

and escap[ing]” “[o]n or about August 26, 1976,” ® and

the trial court’s instructions, rather than explaining a

“continuing offense” concept to the jury, emphasized the

notion that the offense took place when appellants left

the jail on August 26.° Thus this is not a case where

the jury was considering whether a defendant had es-

caped by failing to return. Appellants were tried and

convicted of escaping by leaving the jail on August 26,

and it was therefore error for the trial court to deny a

choice of evils instruction on the ground that the de-

fendants had not returned or adequately explained their

continued absence. In effect, the trial court denied ap-

pellants’ right to have the jury consider a duress defense

to the crime with which they had been charged (escaping

on August 26) because the court found that they would

in any event be guilty of an offense under a theory (fail-

ure to return) that was never presented either to appel-

*® We recognize the pressures that have led courts to con-

strue escape as a continuing offense. See note 17 supra. Never-

theless, there is some force to appellants’ argument that this

interpretation is not clear on the face of the statute, and the

rule favoring strict construction of criminal statutes makes it

important that the continuing offense concept be clearly ex-

plained to the jury.

* R, 32.

5 For example, the trial court instructed the jury to con-

sider whether the defendants had been convicted of a felony

“at the time of the offense charged in the indictment, that is

to say August 26th, 1976 * * *.” Tr. 801. The trial court’s

instructions when read as a whole clearly give the impression

that appellants were being tried only for leaving the jail on

August 26, and not for failing to return at some later date.

26a

lants or to the jury. We cannot sanction such an obvious

violation of appellants’ constitutional right to jury trial.

Under the circumstances of this case it is unnecessary

for us to consider exhaustively the proper prerequisites

to a choice of evils defense in escape cases.": The trial

court apparently gave this question considerable atten-

tion, and we do not know the nature of its prepared in-

struction except that were it not for the return require-

ment, which must be modified in accordance with our

opinion,” it was willing to have the jury consider the

defense.**

*t See United States v. Michelson, supra note 17, 559 F.2d at

571 n.10.

** An acceptable version of the “return requirement” would

include (1) an instruction that escape is a continuing offense,

and (2) an instruction that a choice of evils defense cannot

justify continued absence if the conditions establishing the

defense (whatever the court determines them to be) do not

continue for the period a prisoner remains at large.

** The dissent argues that the court “labor[s] mightily to

exculpate these defendants.” Dissent at 51. This statement

wholly misconceives the issues in the court’s opinion. We do

not even decide whether the conditions alleged by appellants

actually existed, much less whether they justified appellants’

actions. Our concern is rather to clarify the law as to the

relevance of appellants’ evidence and to assure that the jury

is not denied the opportunity to perform its accustomed and

constitutionally mandated functions. Indeed, it is the dissent

that “labors mightily” to usurp the jury’s proper function

when, for example, it rehearses its view of the evidence at

length with the thinly veiled purpose of suggesting which wit-

nesses are credible and which are not, dissent at 2-7, and

when it complains that requiring the jury (and the defend-

ants) to be adequately informed of the nature of the crime

for which they are trying a defendant is “patently frivolous.”

Dissent at 25.

eae 6

27a

C. Summary

We find prejudicial error in the District Court’s in-

struction on the element of “escape,” which prevented the

jury from properly considering evidence relevant to ap-

pellants’ intent. The District Court also erred by impos-

ing a return requirement as an absolute prerequisite to

appellants’ proposed “duress” instruction, rather than

instructing the jury that escape is a continuing offense

and that such a defense must therefore justify a defend-

ant’s continued absence as well as his initial departure.

Appellants’ convictions must therefore be reyersed and

their cases remanded for a new trial.

Appellants also challenge the trial court’s instructions

and the sufficiency of the evidence with regard to another

element of the offense: whether at the time they escaped

they were in the custody of the Attorney General by vir-

tue of the convictions alleged in the indictment.* The

indictment charged that all three appellants had been

lawfully committed to the custody of the Attorney Gen-

eral by virtue of specific federal convictions and sen-

tences and had escaped from such custody.® The prosecu-

‘4 The reason for a defendant’s confinement is important be-

cause of the penalty provisions of § 751(a), which vary the

severity of the penalties depending on whether a defendant

was in custody “by virtue of an arrest on a charge of felony,

or conviction of any offense,” or “for extradition or by virtue

_of an arrest or charge of or for a misdemeanor, and prior to

conviction * * *.” 18 U.S.C. § 751(a) (for full text see note 1

supra). men

°° The charge against appellant Bailey is illustrative:

On or about August 26, 1976, within the District of

Columbia, CLIFFORD BAILEY, having been lawfully

committed to the custody of the Attorney General on

March 6, 1973 and April 18, 1973, by virtue of a con-

28a

tion’s evidence indicated that Cooley was serving a

sentence in the D.C. Jail, while Bailey and Walker, who

were serving sentences in the federal facility in Leaven-

worth, Kansas, had been brought to the D.C. Jail pur-

suant to writs of habeas corpus ad testificandum issued

by the Superior Court for the District of Columbia.

Appellants raise two objections to the instructions and

the evidence on the custody element of the offense. First,

appellant Cooley argues that the prosecution’s evidence

that he was in custody by virtue of his federal conviction

at the time he escaped was insufficient as a matter of

law. The prosecution relied primarily on documentary

evidence to prove the custody element in all three cases.”

In Cooley’s case, for example, the Government introduced

(1) a “face sheet” showing that Cooley was committed

to the “D.C. Jail” on April 10, 1976 as a “federal pris-

oner” (Government Exhibit No. 8), (2) a Judgment and

Commitment Order dated May 20, 1976 showing that

following his conviction of Possession of an Unregistered

Firearm, 26 U.S.C. § 5861(d) (1970), Cooley was sen-

tenced and “committed to the custody of the Attorney

General or his authorized representative for imprison-

ment for a period of five (5) years” (Government Ex-

hibit No. 2), (3) an Escape and Apprehension Form

dated August 26, 1976 noting that Cooley had escaped

viction and sentence imposed by the United States Dis-

trict Court for the District of Maryland in Criminal Case

Numbers 72-0599 and 73-077, respectively, did unlawfully

and wilfully flee and escape from such custody.

ou (Violation of Title 18, U.S. Code, Section 751 (a) )

°° Appellants Bailey and Walker adopt appellant Cooley’s

argument with respect to their own cases. Although the docu-

mentary evidence varied slightly among the three cases, the

analysis of Cooley’s argument applies with equal force to the

other two cases.

29a

from the D.C. Jail on that date (Government Exhibit

No. 5), and (4) the testimony of the Supervisor of Rec-

ords at the D.C. Jail that there was no record of Cooley’s

being released from the jail’s custody before August 26.

Tr. at 27-28.

Since there was no specific documentary evidence, such

as a return on the Judgment and Commitment Order,

showing that the Attorney General committed him to the

new D.C. Jail, Cooley argues that the evidence fails to

prove that he was confined in the jail by virtue of the con-

viction alleged in the indictment. He draws support from

Strickland v. United States, 3389 F.2d 866 (10th Cir.

1965), a case in which the Tenth Circuit reversed a jury

conviction under Section 751(a) because it held that evi-

dence similar to that introduced here was insufficient as

a matter of law to establish a prima facie case. Although

the Government’s proof of a “chain of custody” pursuant

to the convictions alleged in the indictment is not as

strong as it could be, we do not agree that the prosecu-

tion’s evidence fails to establish a prima facie case as a

matter of law.*’ Reasonable inferences based on the evi-

dence presented could enable a jury to find beyond a

reasonable doubt that appellant Cooley was in custody by

virtue of the convictions alleged in the indictment at the

time he left confinement. Moreover, the trial court’s in-

5? The court in Strickland v. United States, 339 F.2d 866

(10th Cir. 1965), relied on Mullican v. United States, 252

F.2d 398 (5th Cir. 1958), a case in which certain documentary

evidence linking a defendant’s custody when he escaped to

the conviction alleged in his indictment was held inadmissible.

Although the Mullican court found that the admission of the

evidence had been prejudicial error, it did not dismiss the case

(as the Strickland court did), but remanded for a new trial in

which the jury would be allowed to decide the custody issue

without the inadmissible evidence. 252 F.2d at 405.

30a

structions with respect to Cooley’s custody were essen-

tially correct.*

The second objection related to the custody element of

the offense concerns only the appellants who were brought

to the D.C. Jail pursuant to writs of habeas corpus ad

testificandum—Bailey and Walker. The trial court in-

structed the jury:

Prisoners, such as two of the prisoners in this

case, defendants in this case who are convicted in

another jurisdiction and who were in the custody of

the Attorney General, were brought to this jurisdic-

tion as the documentary evidence shows, because they

were summonsed [sic] as witnesses by another de-

fendant in a proceeding then pending in the District

of Columbia court. They are still under the custody

today of the Attorney General regardless of how

they happened to be brought into the District of

Columbia Jail.

Tr. at 800-801. Appellants claim that this instruction

does not state the law and that it effectively removes an

issue of fact from the jury’s consideration.

°* The trial court instructed the jury that in order to con-

vict it must find beyond a reasonable doubt (1) that each ap-

pellant had been convicted of a felony, and (2) that “as a re-

sult of the conviction [each appellant] was committed to the

custody of the Attorney General or [his] designated represen-

tative, and was in custody at the time of the offense.” Tr.

801-802. These instructions raise no problem, and we think

it unlikely that the jury was confused by the court’s earlier

statement that “with respect to each of the defendants who

is on trial in this case the Court instructs you that defendants

convicted either in this federal court or in the Superior Court

of felonies, or in the federal court[s] throughout the coun-

try are committed to the custody of the Attorney Gencral of

the United States. This is a general practice and the Court

will take judicial notice of it and instruct you accordingly.”

Tr. 800.

Om. ane

ee ae

en Cae Ae teins

3la

Appellants’ basic argument is that whén a prisoner

who has been committed to the custody of the Attorney

General is transferred pursuant to a writ of habeas

corpus ad testificandum, the prisoner is no longer in the

custody of the Attorney General pursuant to the original

commitment, but is in the custody of the court that issued

the writ—at least during the operation of the writ. Ap-

pellants therefore urge that, contrary to the instructions

given by the trial court, there was a factual question

whether they were in the custody of the Attorney General

or of the Superior Court at the time they left the jail,

and they claim further that the Government’s evidence

on this factual issue was insufficient to establish a prima

facie case.

Appellants claim to find authority for their position in

the early Supreme Court opinion in Barth v. Clise, 79

U.S. (12 Wall.) 400 (1870). That case was a suit against

a sheriff to recover a debt owed to the plaintiff by a

prisoner who had escaped while the sheriff was allegedly

responsible for his safekeeping. The sheriff, who had

arrested the prisoner pursuant to a writ of ne exeat ob-

tained by the plaintiff, had brought the prisoner into

court pursuant to a writ of habeas corpus obtained by

the prisoner. The prisoner then escaped from the court-

room during the habeas corpus proceeding and fled to

Canada. The Supreme Court held that the sheriff was

not liable for the debt owed by the prisoner, explaining

that once the sheriff had returned the prisoner to the

court pursuant to the writ of habeas corpus, the responsi-

bility for the safekeeping of the prisoner passed to the

court “until the case is finally disposed of.” 79 U.S. (12

Wall.) at 402.

Citing bivad language in Barth,” appellants argue that

8° ~By the common law, upon the return of a writ of habeas

corpus and the production of the body of the party suing

it out, the authority under which the original commitment

eT Nr ee

32a

unless the testimony for which they had been brought to

the District of Columbia had been completed, they were

in custody pursuant to an order of the Superior Court

and not by virtue of their federal convictions at the time

they left the jail.” Similar arguments based on Barth v.

Clise have been raised in several previous escape cases

brought under Section 751(a), but such arguments have

never persuaded any court to find ‘the requisite custody

lacking in the case before it.”

Like these other cases, the case before us is distinguish-

able from Barth on several grounds. Barth dealt with

the common law liability of a custodian for the escape

of a prisoner, while this case involves an interpretation

of the terms of the federal escape statute. The prisoner

in Barth escaped from the courtroom during the habeas

proceeding, while appellants allegedly left an institution

designated by the Attorney General for confinement of

federal prisoners. Finally, Barth involved a writ of

took place is superseded. After that time, and until the

case is finally disposed of, the safe-keeping of the prisoner

is entirely under the control and direction of the court

to which the return is made. The prisoner is detained,

not under the original commitment, but under the au-

thority of the writ of habeas corpus. Pending the hearing

he may be bailed de die in diem, or be remanded to the

jail whence he came, or be committed to any other suit-

able place of confinement under the control of the

eourt. * **

Barth v. Clise, 79 U.S. (12 Wall.) 400, 402 (1879).

* The prosecution introduced no evidence at the trial as to

whether appellants had completed their testimony in the

Superior Court. Appellants Walker and Bailey therefore argue

that their cases must be dismissed.

* See, e.g., United States v. Viger, 530 F.2d 846 (9th Cir.

1976); United States v. Stead, 528 F.2d 257 (8th Cir. 1975),

cert. denied, 425 U.S. 953 (1976); Tucker v. United States,

251 F.2d 794 (9th Cir. 1958).

33a

habeas corpus ad subjiciendum (the Great Writ), while

the case before us concerns a writ of habeas corpus ad

testificandum.

In light of these distinctions, we find that Barth does

not prevent us from deciding that a prisoner who has

been committed to the custody of the Attorney General

by virtue of a conviction is still in the custody of the

Attorney General by virtue of that conviction for the

purposes of Section 751(a) when he is transferred pur-

suant to a writ of habeas corpus ad testificandum and

confined in an institution designated by the Attorney

General for the custody of federal prisoners. Policy con-

siderations support at least this broad an interpretation

of Section 751. The jurisdiction from which a prisoner

is brought pursuant to a writ of habeas corpus has a

significant interest in preventing the prisoner’s escape

from custody. This interest has been recognized in an

analogous situation by the drafters of the Interstate

Agreement on Detainers (IAD), who provided that when

a prisoner serving a sentence in one jurisdiction is

brought to another jurisdiction for trial on another of-

fense and escapes while in the receiving jurisdiction, he

may be prosecuted under the escape statute of the sending

jurisdiction.”

In addition to protecting the interest of the sending

jurisdiction, holding that prisoners transferred by writs

¢2 (g) For all purposes other than that for which tem-

porary custody as provided in this agreement is exercised,

the prisoner shall be deemed to remain in the custody

of and subject to the jurisdiction of the sending State

and any escape from temporary custody may be dealt

with in the same manner as an escape from the original

place of imprisonment or in any other manner permitted

by law.

Interstate Agreement on Detainers, Article V(g), 18 U.S.C.

App. (1976).

34a

of habeas corpus ad testificandum are still in custody

“by virtue of” the original commitment makes intuitive

sense. The writ of habeas corpus ad testificandum is

necessary only because the prisoner is already in custody

elsewhere; the prisoner is kept confined when he is not

testifying essentially because of the previous commitment;

and any time during which the prisoner is confined under

the writ counts toward satisfying the prisoner’s original

sentence. Courts interpreting the term “custody” in es-

cape cases ** and cases involving writs of habeas corpus “*

have demonstrated a flexibility responsive to such con-

siderations of policy and common sense. Indeed, at least

two other judicial decisions have in effect come to the

same conclusion we reach.*

Although the trial judge’s instructions matched the

general sense of our holding, we recognize that some por-

tions of the instructions on this matter were confusing

and might have invaded the province of the jury.* We

assume, however, that any such deficiencies in the instruc-

tions will be cured on remand.

68 See, e.g., United States v. Rudinsky, 439 F.2d 1074 (6th

Cir. 1971) (prisoner on work release); Chandler v. United

States, supra note 13, 378 F.2d at 908; Read v. United States,

361 F.2d 830 (10th Cir. 1966) (prisoner at recreation away

from institution) ; Frazier v. United States, 339 F.2d 745 (D.C.

Cir. 1964) (prisoner in hospital outside institution).

64 See, e.g., Hensley v. Municipal Court, 411 U.S. 345

(1973); Peyton v. Rowe, 391 U.S. 54 (1968); Jones v. Cun-

ningham, 371 U.S. 236 (1963).

8 United States v. Viger, supra note 61; Tucker v. United

States, supra note 61. See also United States v. Hall, 451 F.2d

347 (4th Cir. 1971).

66 An example is the court’s instruction that prisoners such

as appellants Bailey and Walker “are still under the custody

today of the Attorney General regardless of how they hap-

pened to be brought into the District of Columbia Jail.” Tr.

800-801.

35a

III

Appellants also raise other issues,” but in light of our

decision to grant a new trial on the ground of the errone-

ous instructions on “escape” we find it unnecessary to

discuss these other questions.* These cases are accord-

®* Despite its length, the dissent addresses only one of the

issues raised by appellants. As the court’s opinion indicates,

appellants raise several other substantial issues, some of which

were unnecessary for the court to reach because the case is

being reversed and remanded on the issue the dissent does

addvess. Since the dissent would affirm rather than reverse, it

would apparently decide all these other issues against appel-

lants, but the dissent’s failure to concur in part or even to

mention any of the other issues in these cases is curious.

6* Some comments on a few of these other issues may be

useful. Appellants Bailey and Walker seek to have their cases

severed from that of appellant Cooley because of alleged

prejudice from inconsistent and conflicting defenses (Bailey

and Walker assert that they were forced to leave by condi-

tions in the jail, while Cooley claims that, in addition to con-

ditions in the jail, Bailey and Walker forced him to leave).

The trial court denied a pretrial motion to sever based on prej-

udicial joinder under Rule 14, FED. R. CRIM. P., and refused

to change its ruling after the evidence had been presented.

For the first time on appeal appellants raise the further argu-

ment that joinder of all three cases in the indictment was

improper under Rule 8(b), FED. R, Crim. P. The Government

responds that any Rule 8(b) objection was waived because

it was not raised before trial. It claims that the Rule 14 mo-

tion made before trial cannot serve as a substitute for a

Rule 8(b) objection. On remand appellants will be given a

chance to raise their Rule 8(b) objection in timely fashion,

and the trial court will have the benefit of knowing the pre-

cise nature of the alleged inconsistency of defenses if and

when it, again considers the issue of prejudicial joinder.

Appellant Bailey a!so argues that he was prejudiced by the

introduction of evidence of a prior conviction of escape. This

conviction was one for which he was allegedly in custody when

he escaped, but Bailey claims that the prosecution could have

relied solely on another conviction—of robbery—for which

36a

ingly reversed and remanded to the District Court for

further action consistent with this opinion.

Reversed and remanded.

he was also allegedly in custody, and thus could have avoided

the prejudicial impact of the prior escape conviction. Since

the statute requires that the escapee must have been in custody

by virtue of a conviction, evidence of any conviction for which

a defendant is in custody when he escapes is directly relevant

as long as this element is disputed. In the case on which appel-

lant Bailey relies, United States v. Spletzer, supra note 17,

the defendant had stipulated to the conviction and confinement

elements of the offense. This course is also open to appellant

Bailey on remand.

37a

WILKEY, Circuit Judge, dissenting: Traditionally,

claims of compulsion have been governed by strict stand-

ards; defendants have been required to raise such issues

within the framework of the affirmative defenses of

duress and necessity, and these defenses have been pre-

cisely defined, carefully hedged, and subject to strict

proof. In a radical departure from this approach, the

majority holds that even if evidence is insufficient as a

matter of law to make out a duress or necessity defense,

it must nevertheless be presented to the jury as bearing,

in some nebulous and undefined way, on a defendant’s

“voluntariness” and “intent”. Although my colleagues do

not seem to realize it, this bouleversement effectively

abolishes the defenses of duress and necessity, and the

salutary standards embodied in them. In their stead it

places vague, expanded, and essentially determinsitic con-

cepts of “intent” and “voluntariness,” whose just ap-

plication, no matter how well-intentioned, is obviously

fraught with difficulties. I respectfully dissent.

I. THE FACTs

In the early morning hours of 26 August 1976 officers

of the District of Columbia Detention Facility discovered

that an escape had been effected through a low-level

window in the Northeast-1 housing unit. A check of the

unit revealed that three prisoners—Bailey, Cooley, and

Walker—were among those escaped. Bailey, serving a

sentence of 23 years at the time, had been convicted in

1973 of bank robbery and attempted escape. Walker,

serving a 15-year sentence, had been convicted in 1973

of bank robbery. Cooley, doing 5 years, had been con-

victed in May 1976 of possession of an unregistered

firearm.

Cooley, Bailey, and Walker were later apprehended in

the District of Columbia by FBI agents on 27 September,

19 November, and 13 December 1976, respectively. On

38a

23 November 1976 all three were indicted for escape

from custody, a violation of 18 U.S.C. § 751(a), and

prison breach, a violation of 22 D.C. Code, § 2601. On

8 March 1976 a jury trial commenced in the United

States District Court for the District of Columbia before

District Judge Oliver Gasch.

A. The Evidence

During trial the defendants did not dispute that they

had escaped from jail, but they offered a great deal of

evidence to establish their contention that the escape was

justified in view of the desperate conditions there. Several

witnesses were produced who had been incarcerated with

defendants. Their testimony was offered to establish that

frequent fires, assaultive ani threatening conduct by

corrections officers, and lack of adequate medical atten-

tion combined to ma’> conditions so unbearable that de-

fendants were compelled to flee for their own well-being.

The basic issue on this appeal is whether or not, and in

what manner, the jury should have been instructed to

consider this evidence.

1. The Fires

Several prison inmates incarcerated with defendants

in the Northeast-1 unit testified that fires were frequently

set there. One inmate said that they occurred every day.’

Estimates varied on how long the fires were allowed to

burn. One prisoner thought they lasted for an hour,’

while another testified that they lasted for an hour and

a half and that the smoke remained all night.* The same

prisoner said that the guards “just let them burn until

1Tr. 150.

2 Tr. 377.

8 Tr. 390.

39a

they burn out”.* However, there was no evidence of a

fire on 26 August 1976, the day of the escape.

The Assistant Administrator of Operations at the

facility, called to the stand by defendant Walker, con-

tradicted these allegations. While he acknowledged that

there had been small fires set in Northeast-1, he said

that the inmates themselves had set the fires® and that

the officers on duty had promptly extinguished them.*

After the fires had been put out, exhaust fans were

turned on to clear the smoke from the air, and medical

attention was provided for anyone found to be in need

of it.’ A corrections officer who had been stationed in

Northeast-1 in the summer of 1976 recalled that fires

were set in the unit every week, but that they lasted

only five to seven minutes.’ He testified that, to his

knowledge, no officer had ever permitted a fire to burn

without acting to extinguish it.°

2. Abusive Conduct by Guards

Testimony was also elicited that beatings were fre-

quently administered to the inmates by corrections officers

stationed in Northeast-1. One inmate claimed that they

took place on a daily basis. Another inmate reported

seeing a group of six or seven guards attack defendant

Bailey with blackjacks and mace." This incident oc-

* Tr. 378.

° Tr. 203; 206.

* Tr. 209.

* Tr. 236.

® Tr. 354.

° Tr. 363.

0 Tr, 155.

1 Tr. 368.

40a

curred, according to the inmate, more than three weeks

before Bailey’s escape.’* The inmate also claimed that he

had seen a guard hit defendant Cooley in the face with

a blackjack.“ He said that this conduct also occurred in

early August 1976."

Threats by the guards were also the subject of a good

deal of testimony. A prisoner testified that in August

he had received a beating by one of the guards who then

told him to deliver a message to defendant Bailey to the

effect that the guards were going to kill him and beat

him for testifying in a particular court case."

Once again the Assistant Administrator of Operations

told a different story:

[W]e have not found any instance where either one

of these young men were attacked by anyone. It has

been the other way around in most cases.”

He acknowledged that he had received reports of situa-

tions requiring the use of physical restraint by officers

in the section. He described one incident in which “Mr.

Bailey came back into the housing unit and made an

unprovoked attack on another resident ... [and] two

officers pulled Mr. Bailey off the man, restrained him.” *

A corrections officer testified that during the month of

August there had been no beatings of inmates by any

corrections officer.’*

2 Tr. 380.

8 Tr. 373-374.

1“ Tr, 382.

Tr. 154.

16 Tr, 255.

1 Tr, 232.

8 Tr. 354.

4la

3. Lack of Medical Attention

The allegation that deprivation of required medical

care led to dangerous conditions at the jail was advanced

principally by appellant Walker. Seeking to establish

that he had an epileptic condition requiring frequent

medication which was not adeauately supplied, the de-

fense called Dr. Samuel Bullock, Chief Medical Officer at

the New Jail. However, Dr. Bullock’s testimony estab-

lished only that medication for the control of epileptic

seizures had been prescribed for Walker. It had been

prescribed at the infirmary on a trial basis since the only.

information available on appellant’s “condition” was that

contained in the medical history provided by Walker

himself.*” When closely questioned about how often the

medication had been received, Dr. Bullock said:

This is still a trial basis. We have no evidence

that Mr. Walker had any—was even an epileptic.”

The doctor further testified that the time period for

receipt of medication on a trial basis is set up by the

prescribing doctor in each case, and that the medication

was prescribed in Walker’s case merely as a precautionary

measure.”

Appellant Walker also called Dr. Aris Karas, staff

psychiatrist at the United States Penitentiary in Leaven-

worth, Kansas. Dr. Karas had treated Walker at Leaven-

worth after he had complained of seizures coming in his

sleep. Dr. Karas was very clear about whether epilepsy

had actually been diagnosed in Mr. Walker’s case:

I want to make, with Your Honor’s permission, one

point clear . . . I did not make a diagnosis of

seizure disorder . . . [bJecause nobody witnessed it

1” Tr, 438-439.

* Tr, 441.

"1 Tr. 458-459.

42a

from the staff or from the employees . . . It was

only diagnosed convulsive disorder by history.”

4. Defendant's Testimony

Defendant Cooley testified that on the morning of the

escape, the correctional officers on duty opened the door

to his cell, allowing him to leave. Once outside the cell,

he encountered Bailey and Walker, who allegedly forced

him to escape by threatening to kill him:

[Like I was out of my cell. They said, “You be gone

or we’re going to kill you.” I say, “Man, I ain’t

escaping.” They say, “Man, you’re out of your

cell. We don’t trust you. You’re going out.” Just

like that.*

Later, however, Cooley testified that he left the jail by

himself and that he did not know whether Bailey and

Walker left at all.** When asked if he had ever made

an attempt after leaving prison to notify anyone in

authority about the escape, he said that he did not know

anyone to call.**

Defendant Bailey also testified about the circumstances

leading up to his escape. As he was lying in bed in the

early morning hours of 26 August, his door suddenly

opened, and he then left the jail. When asked to supply

the details of how he was able to leave, he claimed that

he did not remember:

I don’t even remember. It seems like I just blacked

out ... I have been trying to figure it out. I admit

I left that jail. There is no doubt about it. I swear

2 Tr. 680-681.

*s Tr. 406.

** Tr. 424-425.

*° Tr. 408.

43a

to God I left there . . . all I can say is I just don’t

remember. I just blacked out that morning.”

Fortunately, Bailey’s memory improved following lunch-

eon recess when he was cross-examined by defendant

Walker. After admitting that his prior testimony about

blacking out was not truthful,” he went on to give the

details of his escape. As he was walking down the unit

hall, he discovered that the window in Walker’s cell had

been removed; he entered the cell and climbed down some

bed sheets already hanging from the window. After

escaping he made no effort to surrender himself to the

authorities.”

Defendant Walker’s testimony was quite brief. After

complaining about conditions in the jail, he asserted that

after his escape he had contacted the proper authorities.

Specifically, he said that he “kept a constant rapport with

the FBI” * but admitted that he never surrendered him-

self to their custody. Walker also denied seeing Cooley

the day of the escape.

B. The Instructions

At the close of the evidence the defendants requested the

court to instruct the jury on the affirmative defense of

duress—that is, to instruct the jury that it could find

that the defendants had been compelled to escape by con-

ditions at the jail and that such escape was justified.

In a conference on the proposed instructions, however, the

court ruled that the affirmative defense of duress was

26 Tr, 550.

27 Tr. 559.

28 Tr. 563-564.

*° Tr. 710-711: This assertion of “constant rapport” was

contradicted on rebuttal by the FBI special agent responsible

for the case. (Tr. 730-732).

44a

not available to defendants, since none of them had sur-

rendered to authorities after their escape. The court said:

Had these men notified the authorities or the

public defender in an effort to surrender under

conditions that might have been arranged by the

public defender, then I would have permitted the

duress and condition argument. In fact, I have

here an instruction, which I drew up very care-

fully, with that in mind, but I realized that at the

. end of which I was caliiig “ron the jury to make

a finding that they couldn’t make, that is to say

that these men had turned themselves in, and that

is a prerequisite to the assertion of the defense

of duress or coercion. So, for that reason I decided

that I had to assume the responsibility myself.

The Court therefore rejected the defendants’ proposed

instruction and instructed the jury as follows:

You are instructed as a matter of law that con-

ditions at the District of Columbia Jail or the new

detention center, nc matter how burdensome or

restrictive an individual inmate may find them to

be, are not a defense to the charges in this case,

nor justification for the commission of the offense

of escape.

If a particular inmate or group of inmates feel

that they have been treated unfairly, they may seek

correction of those conditions in the court system,

but they are not entitled to commit the offense of

escape or seek to take the law into their hands.

Now, the court permitted the defendants to in-

troduce this evidence and to seek to show that fol-

lowing their escape they turned themselves in, for

if one, after escaping, has turned himself in, then

the defense of coercion or duress may be brought

to the attention of the jury as a defense, but only

if a defendant turns himself in.

°° Tr. 778-779.

45a

Now, there are recognized procedures for this to

be done, and requisite protections insured by such

action. As the court heard the evidence, that was

not done in this case. So the court felt that it was

incumbent upon the court to assume responsibility

for this aspect of the case, and to take it out of the

case in effect. So, you are not to consider the de-

fense of duress or coercion for the reasons stated.

The defendants did not turn themselves in.”

Thus, the judge did not foreclose jury consideration of

this evidence altogether; he simply ruled out the duress

deferse.

In addition, defendant Bailey urged the court to in-

struct the jury that esape from custody was a “specific

intent” crime, and that the Government was required to

prove that defendants specifically intended to avoid con-

finement permanentiy at the time they escaped from

jail.* The court rejected this proposed instruction and

instead instructed the jury that a defendant “escapes”

if he “without authorization did absent himself from

his place of confinement” and that this offense was a

“general intent crime”.** The court further instructed

the jury on the precise meaning of “general intent”.™

.C. The Verdict

On 14 March 1976 the jury found each defendant

guilty of escape from custody. Pursuant to the court’s

instructions, the alternate charge of prison breach was

not considered by the jury after they reached a verdict

on the escape count. Each defendant was sentenced to

a term of five years in prison, to be served consecutively

to any sentence already imposed. These appeals followed.

31 Tr, 806-807 (emphasis added).

8 Tr, 773-774.

33 Tr. 802; 799.

* Tr. 799-800.

46a

II. THE ISSUES

The basic issue raised in these appeals is whether, and

in what manner, the jury should have been instructed to

consider defendants’ evidence regarding fires, assaults by

prison guards, and inadequate medical attention. The

defendants contend that the jury should have been in-

structed on the affirmative defense of duress and per-

mitted to consider the evidence in connection with that

defense. However, the majority holds that, regardless of

whether the evidence was sufficient as a matter of law to

make out an affirmative defense of duress, it should have

- ‘been submitted to the jury as relevant to the “intent” and

“voluntariness” elements of the crime of escape.”

Thus, in order to determine whether the trial court

erred in instructing the jury as it did, three questions

must be addressed:

1. Was the evidence adduced by defendants sufficient

to provide a basis for an instruction on the defense of

duress?

2. Apart from the availability of the duress defense,

should the evidence have been expressly submitted to the

jury as bearing on the “voluntariness” of the defendants’

actions?

3. Should the evidence have been expressly submitted

to the jury as bearing on the “intent” element of the

crime of escape?

III. THE DEFENDANTS’ DuREss THEORY

Defendants argue that the trial court committed re-

versible error by rejecting the proffered instruction on

the defense of duress and by refusing to permit the jury

to consider, in connection with such a defense, the evi-

*° Majority Opinion ac 10, 11, 16.

47a

dence regarding fires, assaults by prison guards, and in-

adequate medical care.

While it is generally true that a defendant is entitled

to an instruction on his theory of the case when it is

properly requested by counsel, it is well settled that

an instruction should not be given if it lacks evidentiary

support.*’ In a case in which evidence has been presented

in an attempt to raise an affirmative defense, the trial

court has the duty of determining whether the issue is

sufficiently supported by the evidence to place it before

the jury.** When the evidence fails to establish the de-

fense, there is no factual issue to be decided by the jury,

and the instruction is properly refused by the trial court

as a matter of law.”

The evidence here failed on at least two grounds, as

a matter of law, to establish the defense. First, although

the defendants offered much evidence describing condi-

tions which allegedly compelled them to escape, it is clear

that, by all previous standards, the requisite degree of

compulsion was not shown. Second, the evidence failed

to show that any of the defendants turned themselves in

to authorities after escaping those conditions. The trial

court made a specific finding that lack of evidence on

this point placed the duress issue in such a factual posture

that it could not properly be decided by the jury as a

*° Brooke v. United States, 128 U.S. App. D.C. 19, 385 F. 2d

279 (1967).

81 F'.g. United States v. Waskow, 519 F. 2d 1345 (8th Cir.

1975).

38 See United States v. Glassel, 488 F. 2d 143 (9th Cir.

1973), cert. aenied, 416 U.S. 941 (1974); United States v.

Teeslink, 421 F. 2d 768 (9th Cir. 1970).

3° United States v. Glassel, supra; United States v. Ramsey,

374 F. 2d 192 (2nd Cir. 1967).

48a

matter of law. It therefore refused to submit the de-

fense to the jury.

After a consideration of the duress defense in general,

I turn first to the requirement of a prompt return to

custody, and then to the requirement of immediate over-

powering compulsion to establish the duress defense. Not

one, but both, requisites are undeniably missing in the

case at bar.

A. The Duress Defense in General

Where the evidence as to the acts performed by the

defendant is largely undisputed-—as the departure from

the jail of each defendant here—théfe are essentially two

kinds of defenses in the criminal law. One type of defense

negatives guilt by cancelling out the existence of some

required element of the crime—either the actus reus

or the “intent” element. For example, mistake of fact,

intoxication, and insanity are defenses designed to es-

tablish that the defendant did not have the “intent”

element required for the crime charged.”

The second kind of defense operates on an entirely

different principle. It does not negative any element

of the crime but instead goes to show some circumstance

of excuse or justification which is deemed a bar to the

imposition of criminal liability; that is, it goes to the

matter of criminal responsibility.

Traditionally, claims of duress, compulsion and neces-

sity are treated as defenses of the latter type.“ Under

the classic “duress” defense, a defendant will be excused

from committing an otherwise criminal act if he was

compelled to perform the act by the unlawful threats

0 W. Lafave & A. Scott, Handbook on Criminal Law § 8 at

46-47 (1972) [hereinafter cited as Lafave & Scott].

* Id. §§ 49, 50.

49a

of another person. The defense has three elements. First,

in order to excuse the commission of a criminal act, the

coercion must be present, imminent, and impending and

of such a nature as to induce a well-grounded apprehen-

sion of death or serious bodily injury. Second, there

must be no opportunity to avoid the threatened harm.

And finally, the defense may never be raised to justify

the taking of innocent life.**

The theoretical basis for the duress defense is excuse;

though the act is considered wrongful, the actor is not

held responsible because he has taken the best possible

course of action in a situation in which his “free will’ has

been severely curtailed but not entirely eliminated. Thus,

the rationale for the defense is not that the defendant,

faced with the unnerving threat of harm unless he does

an act which violates the literal language of the criminal

law, somehow loses his mental capacity to commit the

crime in question. Rather, it is that, although u defend-

ant has the mental state which the crime requires, his

conduct which violates the literal language of the criminal

law is excused or justified because he has thereby avoided

a harm of greater magnitude: Thus, the defense of duress

rests on the social utility of a defendant’s actions when

faced with a choice of evils. For example, if A, armed

with a gun, threatens B with immediate death unless B

steals C’s car, B is not guilty of larceny because it is

better for society as a whole that :3 do the lesser harm

(commit, the larceny) than acquiesce in the greater

harm (his own loss of life). On the other hand, if A

threatens B with immediate death unless B kills C, B

will not be excused of homicide if he kills C, since It is

not necessarily better for society that B kill C than that

A kill B.

“ E.g. Shannon v. United States, 76 F. 2d 490, 493 (10th

Cir. 1935); Lafave & Scott § 49; Perkins Criminal Law 951-54

(2nd. ed. 1964) [hereinafter cited as Perkins].

50a

The same considerations apply to the defense of neces-

sity. The pressure of natural physical forces often con-

fronts a person in an emergency with a choice between

two evils: either the person may violate the literal

terms of the criminal law and thus produce a harmful

result, or he may comply with those terms and thus pro-

duce a greater or equal amount of harm. For reasons of

social policy, if the harm which will result from com-

pliance with the law is greater than that which will

result from violation of it, he is justified in violating it.

Under such circumstances, he is said to have the defense

of necessity.“ The rationale of the necessity defense is

not that the person, when faced with the pressure of

circumstances of nature, lacks the mental state which the

crime requires. Rather, it is that the public interest

requires the selection of the lesser of two evils..

Necessity is usually distinguishable from duress because

the emergency situation compelling a choice between evils

is caused by forces of nature rather than coercion by

other human beings. Some commentators have suggested

that this is the only real difference between the de-

fenses.** Others claim that there are further conceptional

differences between the two. Whether or not they are

actually distinct, they have been hopelessly commingled in

case law.** The result has been the development of a

hybrid defense—a “duress-necessity” defense—which re-

*s Lafave & Scott § 50; Perkins at 956-961.

“Lafave & Scott §50. See Note, Duress—Prisons and

Prisoners—Duress is a Defense to a Prison Escape, 43 U.Cin.

L.R. 956 (1974); Note, Prisons—Escape—Necessity as a De-

fense, 37 Mo. L.R. 550 (1972).

*° See Gardner, The Defense of Necessity and the Right to

Escape from Prison—A Step Towards Incarceration Free

From Sexual Assault, 49 So. Cal. L.R. 110, 123 (1975) [here-

inafter cited as Gardner].

5la

tains the basic features of the duress defense, but which

encompasses compulsion arising from natural forces in

addition to coercion by other persons. For convenience,

the term “duress defense” will be used hereafter in re-

ferring to both the classic duress defense and the hybrid

duress-necessity defense.

B. The Return to Custody Requirement in Escape Cases

In escape cases the duress defense has posed special

problems for the courts. Recognizing that the defense

carries within itself the germ of potential disorder even

in ordinary cases, courts have been concerned that its

casual application in escape cases could subvert prison.

discipline and endanger corrections personnel. Moreover,

courts have recognized that, in escape cases more than in

other types of cases, the defense is particularly sus-

ceptible to manipulation by the shrew and unscrupulous.

There already exist among inmates powerful incentives

to escape; the prison population is generally composed

of recalcitrant individuals; 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, and disproof of such claims

can be quite difficult. Finally, in weighing the interests

of the prison inmate against those of society as a whole,

the courts have realized that society has an especially

compelling interest in insisting that prisoners serve their

full and uninterrupted sentences, since it is precisely

upon the ineluctability of such punishment that the ef-

fectiveness of the penal system and, in turn, the safety of

each citizen depends.

In view of these considerations, the duress defense

has been more carefully hedged and subject to stricter

proof in escape cases than in other types of cases. To

prevent either before-the-fact fabrication by groups of

inmates or after-the-fact construction to avoid punish-

)

52a

ment, the courts have set down strict standards which

must be met before the defense is available.

Tne most comprehensive explication of these standards

is provided in People v. Lovercamp,” an escape case in

which the California Court of Appeals considered the

availability of the duress defense. There, two defendants

had been threatened repeatedly by a group of inmates.

who sought to force them to perform lesbian acts. When

their complaints to the prison authorities elicited no re-

sponse and they were again confronted by a threatening

group that promised to return to gang rape them, they

fied. They were immediately apprehended a few yards

from the prison. When the defense of duress was raised

at trial, the court refused to instruct the jury on it. In

holding that the defense was available to the defendants,

the Court of Appeals set forth five conditions that must

be established before the defense could be submitted to

the jury:

. . . [Wle hold that the proper rule is that a

limited defense of necessity is available if the follow-

ing conditions exist: (1) The prisoner is faced with

a specific threat of death, forcible sexual attack or

substantial bodily injury in the immediate future;

(2) There is no time for a complaint to the au-

thorities or there exists a history of futile com-

plaints which make any result from such complaints

illusory ;

(3) There is no time or opportunity to resort

the courts; )

(4) There is no evidence of force or violence used

towards prison personnel or other “innocent” per-

sons in the escape; and

(1974).

58a

(5) The prisoner immediately reports to the

proper authorities when he has attained a position

of safety from the immediate threat.”

The first of these requirements corresponds to the

rule applicable to duress cases in general that the com-

pulsion must be present, imminent and impending and

of such a nature as to induce a well-grounded apprehen-

sion o* immediate death or serious bodily injury. If the

danger threatened is not immediate, the defense is not

available.** The defense is reserved for back-to-the-wall

situations. This requirement has been adopted by every

court that has considered the availability of the defense

In escape cases. Accordingly, the courts have uniformly

agreed that prison conditions alone, no matter how in-

tolerable and inhumane, do not justify or excuse escape.*®

The second and third requirements set forth in Lover-

camp reflect the general rule that the defendant must

have exhausted all reasonable means of avoid..g the

threatened harm. Thus, an escapee’s claims of com-

pulsion must be rejected if he could have avoided danger

by resorting to administrative remedies within the prison,

or by seeking judicial intervention. Once again, these

requirements have been generally adopted by the courts.”

The fourth requirement enunciated in Lovercamp is a

stricter version of the general rule that duress never

excuses the taking of innocent life. The added strictures

*7 118 Cal. Rptr. at 115 (footnotes omitted).

* Eg. State v. Green, 470 S.W. 2d 565 (Mo. 1971), cert.

denied, 405 U.S. 1078 (1972).

* E.g. Dempsey v. United States, 283 F. 2d 934 (5th Cir.

1960) ; Grubb v. State, 533 P. 2d 988 (Okla. Crim. App. 1975);

Hinkle v. Commonwealth, 66 S.W. 816 (Ky. 1902).

° E.g. Dempsey v. United States, 288 F. 2d 984 (5th Cir.

1960); People v. Hocquard, 2836 N.W.2d 72 (Mich. 1975);

Matthews v. State, 288 So. 2d 712 (Miss. 1974).

54a

are a response to the fact that recognition of the de-

fense in escape cases increases the risk of physical injury

to corrections personnel as well as to other inmates. Most

duress-escape cases that have reached the courts, however,

have involved non-violent escapes, and, consequently, few

courts have explicitly adopted this requirement, but it

has been recognized by the Seventh Circuit.”

The fifth requirement of the duress defense set forth

in Lovercamp is obviously of decisive significance in this

case. It requires an escapee to report immediately to

proper authorities once he has attained a position of

safety. In-the Lovercamp case itself the defendants had

established all elements of the duress defense but this

final “return” requirement; however, the court found the

issue incapable of resolution since they had been ap-

prehended immediately on their departure. Since the

Lovercamp decision, this “return” requirement has found

increasingly wide support among courts considering

duress-escape cases, including 1977 decisions in the Ninth

Circuit and the District of Columbia Court of Appeals.”

There are essentially two reasons for insisting on re-

turn as a condition precedent to accepting a defense of

duress. The first is a policy reason. The “return” re-

quirement is designed to mitigate some of the special

problems attending application of the duress defense in

escape cases. It is meant to narrow application of the

defense to those who are in genuine fear of death or

serious bodily harm because they otherwise have nothing

° United States v. Nix, 501 F. 2d 516, 519 (7th Cir. 1974).

582 United States v. Michelson, 559 F. 2d 567 (9th Cir. 1977) ;

Stewart v. United States, 370 A. 2d 1374 (D.C. Ct. App. 1977) ;

People v. Hocquard, 220 N.W. 2d 212 (Mich. 1974); State v.

Worley, 220 S.E. 2d 242 (S.C. 1975). See People v. Wester,

46 Cal. Rptr. 699 (1965); State v. Palmer, 72 A.2d 442 (Del.

1950).

55a

to gain by escaping if they must surrender themselves

immediately. In this regard the Lovercamp court ob-

served:

Thus, the defense becomes meaningless to one who

would use it as an excuse to depart from lawful

custody and thereafter go his merry way relieved of

any responsibility for his unseemingly departure.

A prisoner cannot escape from a threat of death,

homosexual attack or other significant bodily injury

and live the rest of his life with an ironclad defense

to an escape charge.**

The second, and most important, reason for condition-

ing the availability of the duress defense on an escapee’s

return to custody relates to the nature of the crime of

escape itself. Under many statutes, escape has been held

to be a “continuing” crime; that is, the offense is not

complete when the escapee initially departs from custody

but continues as long as he remains at large. Thus,

under these statutes, even though a prisoner may have

originally been justified in departing from custody, if

he thereafter remains at-large, his continued unexcused

absence from custody constitutes the crime of escape.

Accordingly, if a defendant presents evidence justifying

only his initial departure, such evidence would—as a

matter ‘of law—be an insufficient defense, since it would

fail to excuse his subsequent continued absence.

The federal escape statute, 18 U.S.C. § 751, is un-

questionably a statute of this type. The courts of appeals

have consistently held this to be so.* It is no surprise,

53118 Cal. Rptr. at 115.

** United States v. Michelson, 559 F.2d 567 (9th Cir, 1977);

United States v. Spletzer, 5385 F.2d 950 (5th Cir. 1976);

United States v. Joiner, 496 F.2d 1314 (5th Cir.), cert. denied,

419 U.S. 1002 (1974); United States v. Chapman, 455 F.2d

746 (5th Cir. 1972); United States v. Coggins, 398 F. 2d 668

(4th Cir. 1968); Chandler v. United States, 378 F. 2d 906

(9th Cir. 1967).

56a

then, that in the recent Ninth Circuit case of United

States v. Michelson, the “return” requirement was ex-

pressly held to be a precondition to the availability of the

duress defense in federal escape cases.”

In Michelson, the defendant-escapee was arrested and

charged with escape two years after his unauthorized

departure from a U.S. penitentiary in which he had

been serving a 22 year sentence for aimed robbery.

At trial the defendant attempted to raise a duress de-

fense, presenting evidence that he had had a violent

fight with another inmate; that as a result of the fight,

he was hospitalized for several days, while the other

inmate was placed in solitary confin t; that the other

inmate threatened to kill him ; ad tha the defendant

escaped the same day the other inmate was released from

solitary confinement. The trial court refused to instruct

the jury on the duress defense. Defendant challenged

his conviction on the ground that the trial court erred

in not granting the instruction. The Ninth Circuit af-

firmed the trial court, specifically holding that escape

under 18 U.S.C. § 751 is a continuing offense and that

an escapee must turn himself in to proper authorities

as a prerequisite to the availability of the duress defense:

Although duress may excuse the inmate’s depart-

ture, it does not absolve his continued absence from

custody. In other words, while coercion may shield

the escapee from the imposition of additional punish-

ment, it does not commute the sentence previously

imposed. Thus, while the Court recognizes the avail-

ability of the duress defense to the crime of escape

under proper circumstances, the Court also recog-

nizes that duress exonerates only the departure from

custody, and not the continued absence.

For this reason, an escape will not be excused

by reason of duress if the escapee fails to submit

°6 559 F.2d at 570.

57a

to proper authorities immediately after attaining a

position of safety. The inmate’s failure to submit

to proper authorities following the allegedly coerced

escape amounts to an unexcused commission of the

crime of escape. Therefore, when an escapee fails

to submit to proper authorities, the asserted duress

defense must be rejected because as a matter of law

we does not negate the continued absence from cus-

tody.

Similarly, prior cases interpreting the escape stat-

ute, Section 751(a), have found that continued ab-

sence from custody constitutes the crime of escape.

In this case, we need not and do not decide whether

defendant acted out of duress in escaping. His fail-

ure to report to the proper authorities during his .

nearly two years of freedom following his escape

from McNeil Island Penitentiary precludes jury con-

sideration of the asserted duress defense. Whatever

the merits of the asserted duress defense, it did not

license continued absence from custody.

We conclude that the trial court did not err in

refusing to give the requested duress instruction be-

cause of defendant’s failure to submit to custody af-

ter attaining a position of safety.”

Non-federal courts considering the availability of the

duress defense in escape cases have also deemed the Lover-

camp requirements, including the “return” requirement,

a correct statement of the law.’ The Lovercamp stand-

ards have been termed “minimum conditions” which must

be satisfied before the duress defense is available,** and

5¢ Td. at 570-71.

57 See, e.g., state cases cited at note 52, supra.

58 State v. Worley, 220 S.E.2d at 2438.

58a

it has been held that the defense may. be considered by

the trier of fact only “where there is a prima facie

showing of evidence to support each and every one of

the .. . elements.” *

In Stewart v. United States,” a District of Columbia

case, the defense of duress was raised by an inmate of a

halfway house who failed to return from the community

at the required time and was prosecuted for escape under

22 D.C. Code, § 2601. The defendant claimed that he

had been abducted while returning to the halfway house

and shot while fleeing his abductors. He feared to return

to the house where he would be a “sitting duck” for his

assailants. When he telephoned the halfway house, he

was told to turn himself in, but he waited a month and

a half before doing so. In affirming the trial court’s

ruling that such facts did not make out a valid defense,

the District of Columbia Court of Appeals held that,

when such a defense is raised

the defendant must establish that he immediately

returned to custody once the threat of harm was no

longer imminent. A failure to surrender oneself af-

ter the threat has dissipated must be viewed as an

escape accompanied by the intent to elude lawful

custody. See United States v. Chapman, 455 F.2d

746 (5th Cir. 1972).

. . . Even assuming that initially he acted out of

fear of immediate death or serious bodily injury,

the proffer failed to establish that the threat of

injury remained imminent and that his fear of harm

was reasonable during that time period, or that he

immediately returned to custody once the alleged

threat had dissipated.”

5° People Vv. Hocquard, 236 N.W.2d at 75.

6° 370 A.2d 1374 (D.C. Ct. App. 1977).

*1 Jd. at 1877 (emphasis added).

a —— CT

59a

In the present case the trial court’s ruling that the

defense raised by defendants had not been established

as a matter of law is amply supported by the record.

No evidence whatsoever was adduced to show that de-

fendants turned themselves in after they had escaped

the danger they alleged existed. Defendants Bailey and

Cooley admitted that they did not even attempt to call

the authorities after escape, and though defendant Walker

claimed a “constant rapport with the FBI,” there was

no evidence that he ever attempted to arrange surrender.

In short, the defense evidence was completely lacking

as to the essential “return” requirement, and the trial

court properly excluded the matter from the jury’s con-

sideration.

Defendants argue that once a prisoner has escaped

from danger, he should not be expected to return to the

source of that danger and place himself again in harim’s

way. Presumably defendants believe that an escapee is

entitled henceforth to go his merry way with a permanent

and ironclad defense. This position completely ignores

the rule that the duress defense is available only when

there is no reasonable alternative to violation of the law.

Once a prisoner escapes the immediate threat of death or

serious bodily injury with which he was allegedly con-

fronted in prison and is at large, he has open to him vir-

tually an infinite variety of reasonable alternative means

by which he can avoid these threats in the future without

further violating the law by remaining xt large. He can

‘turn, for example, to the community, to public agencies,

to public or private legal services, to politicians, to church

groups or other private organizations that are in a posi-

tion to take the action necessary to protect him from

untoward danger once he returns to custody. The law

imposes a duty on the escapee, once free, to pursue these

legitimate means of redress, rather than to pursue self-

help through continued criminality.

60a

An escapee’s generalized apprehensions that legal means

of self-protection may not be as efficacious as illegal

means do not excuse or justify his continued absence from

custody. Each moment he remains at large he is actively

_/ breaking the law. To excuse or justify his continued

absence on the basis of duress or compulsion, then, he

must adduce some evidence that the dangers which origi-

nally impelled his escape remain imminent and that there

is no alternative means for him to protect himself from

these dangers except by remaining at large. Because of

the various opportunities which fugitives have for re-

dress, it is almost impossible to conceive of circumstances

under which an escapee could make a showing that his

continued absence was justified. Be that as it may, how-

ever, the fact is that defendants in the instant case have

not even attempted to justify their continued absence.

Under these circumstances, the duress defense is simply

not available to them.

The majority acknowledges that the crime of escape

under 18 U.S.C. § 751 is a “continuing” offense. It

further acknowledges that this feature of the crime

has given rise to the substantive rule of law that duress

is available as a defense in escape cases only where

an escapee has adduced evidence either (1) that he im-

mediately surrendered to proper authorities upon attain-

ing a position of safety from the immediate threat, or

(2) that his continued absence from custody was justified

because (a) the dangers that originally impelled his

escape remained imminent and (b) there were no al-

ternative means for him to protect himself from these

dangers except by remaining at large. Having acknowl-

edged these two points, the majority cannot logically

avoid the conclusion—the inexorable conclusion—that de-

fendants in this case were not entitled, as a matter of

law, to a duress instruction.

Ae ee ee

6la

In the first place, defendants admit that they did

not return to custody; there is no-factual dispute on this.

In the second place, defendants have ‘adduced no evidence

whatever justifying their continued absence from custody.

It is fundamental that an instruction should not be given

if it lacks evidentiary support; when evidence fails to

establish the defense, there is no factual issue to be de-

cided by the jury, and the instruction is properly re-

fused by the trial court as a matter of law. Clearly,

the trial court in this case properly withheld the duress

instruction.

The majority labors to avoid this conclusion by re-

sorting to a patently frivolous argument concerning the

scope of the indictment and instructions in this case. It

dissects the crime of escape into two separate and distinct

activities: first, unauthorized departure from custody,

and, second, unauthorized continued absence from custody.

It then treats these “separate” activities as “separate”

offenses, contending that the defendants were not prop-

erly indicted for the distinct crime of continued absence

from custody because the indictment refers to “flee[ing]

and escap[ing]” “[o]n or about August 26, 1976” and

that the trial court “emphasized the notion that the

offense took place when [defendants] left the jail on

August 26.” Concluding that defendants ‘were being

tried only for leaving the jail on August 26, and not

for failing to return at some later date,” the majority

asserts that the trial court was precluded from relying

on the continuing nature of the offense in refusing to

grant a duress instruction.“

* F'.g., United States v. Waskow, 519 F.2d 1345 (8th Cir.

1975); United States v. Glassel, 488 F.2d 143 (9th Cir. 1973),

cert. denied, 410 U.S. 941 (1974); United States v. Ramsey,

374 F.2d 192 (2nd Cir. 1967).

** Maj. Op. 25-26.

62a

The flatal flaw in the majority’s argument is that it

treats the initial-departure aspect of escape and the

continued-absence aspect of escape as two separate acts

and two distinct offenses. They are not; they are neces-

sary aspects of one act—one single criminal transaction.

As the trial court instructed the jury in this case, escape

consists in “absenting” oneself from custody. Obviously,

in order to absent oneself from custody, one must depart

from custody. Similarly, one cannot have “departed” from

custody without having actually remained absent from

custody for an appreciable period. The act of absenting

oneself from custody necessarily entails not only the in-

itial severance’ of control but also the maintenance of

that status for an appreciable period of time, whether

that be one minute or one hour or one year.

The fact that the trial court did not provide the jury

with a full explication of the “continuing offense” aspect

of the orime of escape is really without significance in

this case and certainly is not relevant to the majority’s

argument. The majority’s complaint is that the trial

court precluded jury consideration of a duress defense

and held as a matter of law that the defense was un-

available. However, the majority concedes that if the

court had instructed the jury fully as to the “continuing

offense” aspect of escape, then it could properly have

held as a matter of law that the duress defense was un-

available and thereby have precluded jury consideration

of the defense. Why should the result be different simply

because in one case the trial court did not fully illumi-

nate the “continuing offense” aspect of the offense for the

jury and in the other case it did? The jury is not mak-

ing the decision on the availability of the defense in

either case; the court is making the decision in both cases

as a matter of law. The amount of information conveyed

to the jury is therefore irrelevant to the propriety of the

trial court’s legal decision.

68a

The fact that the trial court in this case did not fully

explain the “continuing offense” nature of escape had

only one real practical effect. It deprived the jury of

insights that would have made it easier to convict defend-

ants. In fact, if the jury had been fully instructed—on

the continuing offense aspect of escape, it would have been

irrational for it to have acquitted defendants, in light of

the fact that defendants admitted remaining at large and

failed to adduce any evidence to justify their continued

absence. In other words, the trial courts’ alleged omission .

was not only unprejudicial to defendants, but in fact

affirmatively benefited them.

C. The Immediate Compulsion Requirement in Escape

Cases

The trial court was justified in refusing to instruct

the jury on the duress defense for still another reason.

The majority does not, and cannot, deny the validity of the

traditional requirements that a duress defense must be

predicated on threat of immediate death or serious bodily

harm and a showing that there was no opportunity to

avoid the threatened harm—in other words, that the de-

fense is reserved for back-to-the-wall situations. The

evidence presented by defendants plainly did not meet

these requirements.

Cooley was the only one of the defendants who ac-

tually claimed that he had been compelled to escape by

any form of immediate danger. However, even he later

repudiated this claim and testified that he had indeed

not been forced to leave the prison by Walker and Bailey.

The conditions described by other defense witnesses could

hardly be found to establish the seriousness, immediacy,

and imminence of danger required tu’make out duress.

Walker’s complaint that he was not being adequately

treated for seli-diagnosed epilepsy, even though appropri-

ate drugs had been prescribed; the defendants’ general

64a

complaint that there had been, in the past, intermittent

fires in the housing unit, even though there was no evi-

dence that defendants’ immediate safety had ever been

endangered by these fires; and the defendants’ general

complaint that they had been subject to past “assaults”

by prison guards, even though there was no evidence of

an “assault” or even the utterance of a “threat” within

approximately three weeks of the escape, simply do not

present the back-to-the-wall situation necessary to make

out a duress defense.

Similar, and even more compelling, complaints have

been repeatedly rejected by the courts in scores of cases.

Indeed, I invite the majority to cite one case, federal or

state, in which claims of this type have been deemed suf-

ficient to raise a duress defense. The majority is unable

to do so because the defendants’ complaints clearly fall

far short of the severe and immediate danger necessary

to warrant a duress instruction. The trial court was

plainly correct in refusing to instruct the jury on defend-

ants’ theory of the case.

IV. THE MAJORITY’sS “VOLUNTARINESS” THEORY

The majorit;y suggests that, regardless of whether the

evidence presented by defendants was sufficient as a

matter of law to make out an affirmative defense of

duress, it should have been submit‘:d to the jury as

relevant to the “‘voluntariness” of defendants’ actions.“

Finding that ‘“‘voluntariness” is a necessary “element”

of the crime of escape, the majority concludes that the

trial court erred in precluding jury consideration of de-

* Majority Op. at 10: “[A] jury can consider whether evi-

dence of jail conditions, threats, and violence such as that

presented by appellants in the District Court raises reason-

able doubts concerning a defendant’s capacity to act ‘volun-

tarily,’ or his intent to avoid confinement.” (Emphasis sup-

plied.) See also Maj. Op. at 10, 17.

en ae le.

65a

fendants’ evidence of medical inattention, assaults, and

fires.

The term “voluntary” is frequently used in two dif-

ferent ways in the criminal law.

In one sense, the term “voluntary” has been used as

meaning “volitionally”.® According to this usage, a “vol-

untary” act means only that an act is the product of

the actor’s will, regardless of whether that will is freely

exercised. An act is “involuntary”, then, where the actor’s

body is moved by overmastering physical force (vis

absoluta) or where the actor’s movements are a reflex

or convulsion, or are performed during unconsciousness,

sleep, or hypnosis. This type of “voluntariness”, more

properly called “volition”, is treated under the rubric of

actus reus, the physical element. of crime. If a defend-

ant’s movements are not volitional, if they are involun-

tary, then they are not “acts” in the proper sense, and

hence there is no actus reus. Thus, for example, if a

prisoner has an epileptic fit during which he falls over the

prison wall, or if he sleepwalks out the prison gate, or if

he is carried out physically by other prisoners, then the

actus reus of the crime of escape does not exist because

the prisoner has not performed a volitional act. So, when

the term “voluntary” is used as meaning “volitional”,

acts performed under duress are considered “voluntary”

acts; even though they are not the products of the free

will, they are nevertheless products of the will. Of

course, the majority does not use the word “voluntary”

in this sense.

The second way in which the term “voluntary” is used

refers to exercise of the free will, rather than mere

exercise of the will. In this context, an act is said to

be “involuntary” where the will of an actor is subject

to such coercive pressure (vis compulsiva) that it is

*s Perkins at 749; Lafave & Scott at 179.

66a

overborne, and the actor—“against his own will”—chocses

to violate the law rather than obey it.«Thus, for example,

if a prisoner is forced at gunpoint to walk out of prison

“against his own will”, then he has not acted “volun-

tarily”. It is in this “free will” sense that the majority

uses the term “voluntary,” and it is in this sense that the

term will be used in this section.

The majority is unquestionably correct when it says

that “voluntariness”—free will—is a necessary element

in the crime of escape, for it is a necessary element in

all true crimes. It is a basic precept in Anglo-American

law that the exercise of “free” will is essential to crimi-

nal responsibility. A person who has been deprived of

“free” will and has been compelled to act against his

will should not be held responsible and punished for his

actions.

With respect to the present case, the majority’s posi-

tion is simply this: the defendants’ evidence regarding

fires, assaults, and medical care have some bearing on

whether the defendants were exercising “free will” when

they departed from prison; therefore, the evidence should

have been submitted to the jury on the issue of “volun- |

tariness”, even though it did not make out a defense of

duress.

This position is utterly untenable. It is black-letter

law that, in cases such as this, tssues of “voluntariness”’

are to be raised through the affirmative defense of duress.

When a defendant asserts that he was deprived of free

wil

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