Reply Brief — United States v. Bailey

SWAN 424047 U £4 Stk G,

I Supreme Coun Ue I

Supreme Court. U.S.

Pit ED

No. 78-990 NOV 3 1979

AK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

UNITED STATES OF AMERICA, PETITIONER

Vv.

CLIFFORD BAILEY, ET AL.

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES T. COGDELL

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

JEROME M. FEIT

JOHN F. DEPUE

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

CITATIONS

Cases:

Bravero v. State, 347 So. 2d 781 ..............

Cochran & Sayre v. United States, 157

8 eT SE RUE ES Oe ne a

Cole v. Arkansas, 333 U.S. 196 ................

D’ Aquino v. United States, 192 F.2d 338,

cert. denied, 348 U.S. 985 ......................

Dennis v. United States, 341 U.S. 494......

Esquibel v. State, 91 N.M. 498, 576 P. 2d

a ac

Gillars v. United States, 182 F.2d 962......

Grayned v. City of Rockford, 408 U.S.

SSE ESRC CESS PER ACER A SNES UE Sel aE

Helton v. State, 311 So. 2d 381 ..................

Hobert and Stroud’s Case, 79 Eng. Rep.

SRD SER [EY RE Cea

Lewis v. State, 318 So. 2d 529 ..................

M’Growther’s Case, 168 Eng. Rep. 8 ........

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

Orth v. United States, 252 F. 569 -....00.....

People v. Lovercamp, 43 Cal. App. 2d 28,

Be Ne NO, EP ceo ase e smncsentrnesennn

People v. Luther, 394 Mich. 619, 2382 N.W.

ce a

I alpha hah dh cadacpsd dasabbiiachiictisoes

People v. Wester, 237 Cal. App. 2d 232,

GAR: a | ace eR

Presnell v. Georgia, 439 U.S. 14 20022...

Respublica v. McCarthy, 2 U.S. (2 Dall.)

NN siete aioe ded aalbaedaadssinhconargpsionens

Ill

ee RE ARM CN, eb

iA ME 2 eee

II : :

o ii Page Miscellaneous : | Page

: American Law Institute, Model Penal

R. I. Recreation Center v. Aetna Casualty Code (Proposed Official Draft, 1962) :

and Surety Co., 177 F.2d 608 ................ 4

Riley v. State, 16 Conn. 47 2000.22.22... 7 § 2.02 (2) ------neenecneeeeoneeersentees rec seems 16

Russell v. United States, 369 U.S. 749 ...... 11 § 2.02 (3) ---eeeeeeeceecccceesnensreesres Seosssoe 16

Screws v. United States, 325 U.S. 91 ...... 16 § 242.6 (1) seni strate 16

Shannon v. United States, 76 F.2d 490...... 4,15 2 J. Bishop, Criminal Law (1923): }

Snow, Imire; 1Z0 UB. 274 osc ek 10

é C1 7

ape MS mei 58 Ohio St. 482, 351 N.E. . § 1098, at 812 NVR AeaheS 8

PE OY POLE NER RIE ES 2. Pee i She A ee Ter = LMT Ie Aer RR Sy 8

Toussie v. United States, 397 U.S. 112.... 10 $1102, at 818 nn nnnneenennnees

United States v. Cores, 356 U.S. 405 ....... 10 ered cicipcteh da rca ns IMAP ORE

United States v. Irvine, 98 U.S. 450 ........ 10 Comment, From Duress to Intent: Shift-

United States v. Kissel, 218 U.S. 601 ........ 10 ing the Burden in Prison-Escape Prose-

United States v. Michelson, 559 F.2d 567.. 5 cutions, 127 U. Pa. L. Rev. 1142

United States v. Nix, 501 F.2d 516 .......... 9 CRT ID pcnisniccc enone shinee 7

United States v. Phipps, 543 F.2d 576 ...... 9 2 W. Hawkins, A Treatise of the Pleas of

United States v. Sisson, 399 U.S. 267 ...... 12 the Crown (6th ed. 1787) ...........---...-.--- 8

United States v. United States Gypsum Rehabilitation of Federal Prisoners:

hs Ie Niet. Me elicitors 15-16 Hearing on H.R. 6964 Before Subcomm.

United States v. Vaughn, 446 F.2d 1817.... 9 No. 3 of the House Comm. on the Judi-

United States v. Vuitch, 402 U.S. 62 ........ 12 ciary, 89th Cong., 1st Sess. (1965) ........ 9

United States v. Wood, 566 F.2d 1108...... 4,15 W. LaFave & A. Scott, Handbook on

Watford v. State, 353 So. 2d 1268 —........... 16-17 Criminal Law (1972) ......ccccceccconesoncceees 4

Whitaker v. Commonwealth, 188 Ky. 95, Note, Duress and the Prison Escape: A

eT i «DN SIR ERCA MEL reeY Ceet OP 8 New Use for an Old Defense, 45 S. Cal.

Lev, LOGE CURIE) cvcscccncecctniciececes 4

Statutes: Note, The Necessity Defense to Prison

Re Ye: Rana ty ane er RETO: 7.89.10 Escape After United States v. Bailey,

65 Va. L. Rev. 359 (1979) -.....2.200. 14,15

R. Perkins, Criminal Law (2d ed. 1969).. 15

S. Rep. No. 618, 89th Cong., 1st Sess.

CI hneniinnicpinclaisiosicaden lp iliiencnalaipanbdeainiass 9

Iu the Sayrenw Cont of the Wunited States

OCTOBER TERM, 1979

No. 78-990

UNITED STATES OF AMERICA, PETITIONER

v.

CLIFFORD BAILEY, ET AL.

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES T. COGDELL

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

The pervasive theme of respondents’ brief is that

they were denied the right to a jury trial on the ques-

tion whether their escapes from the District of Colum-

(1)

2

bia Jail were the result of coercion. Despite the fact

they did not present evidence to satisfy the return and

immediacy requirements of the defense of duress to

escape, respondents argue that the jury should have

been instructed concerning duress: in their view, the

absence of proof of a truly immediate threat of serious

physical harm and of a prompt return to custody

should simply have been factors for the jury to con-

sider in assessing the credibility of their claims that

they fled the jail under duress and without what they

assert to be the requisite intent to avoid normal condi-

tions of confinement (Resp. Br. 39, 52, 55-62, 100,

122). This argument rests upon a fundamental mis-

perception of the duress defense when raised in an

escape prosecution and of the respective roles of the

trial judge and the jury in the criminal process.

As explained in our opening brief (Govt. Br. 26-

34), the rule that a defendant can invoke the duress

defense only if he acted from a fear of immediate

and serious harm and (in the prison escape context)

if he promptly surrendered to proper authorities or

to a responsible intermediary is not a mere evi-

dentiary guidepost that the jury is free to ignore in

determining whether the defendant should be excused

from responsibility for his criminal conduct under a

broader, undefined principle of compulsion. The im-

mediacy and return requirements are themselves sub-

stantive elements of the duress defense on which the

defendant must introduce sufficient evidence to war-

rant submitting the defense to the jury. This re-

spondent failed to do.

3

1. Respondents do not—and could not—argue that

they presented evidence from which the jury. could

have found that they satisfied the return requirement,

as that requirement has been interpreted by the case

law (see Govt. Br. 29-34, 42-51).1 Nor did the court

of appeals dispute the district court’s finding that

they had not presented such evidence (App. 219-220;

Tr. 778-779). Respondents maintain instead that

prompt return should not be an essential element of

the duress defense. They argue (Resp. Br. 52-71)

that failure to return should be only one factor for

the jury to consider in determining whether an

escaped prisoner was actually motivated by fear of

death or serious bodily injury at the time he fled

from custody and that insistence on return in all

cases therefore interferes with the jury’s fact-finding

function.

1 Respondent Walker’s testimony that he telephoned the

FBI from an undisclosed location, even if believed, would

fall significantly short of satisfying the continuing obligation

to surrender or to make a bona fide effort to do so. Although

respondent testified that he received no assurance that he

would not be returned to the D.C. Jail, he had no right to

insist on this; at most, he could have sought assurances,

either personally or through a court or intermediary, that

the allegedly threatening conditions at the Jail would not re-

cur. Respondent Bailey’s passing assertion (App. 175; Tr.

587) that he had someone else call the Jail falls even further

short of a bona fide effort to surrender, as does respondent

Cooley’s ambiguous testimony about telephone calls (assum-

ing that it refers to calls his family made to the authorities

rather than to calls to Cooley (see App. 118-119; Tr. 406-

407)). Respondent Cogdell did not proffer any evidence of

communication with public officials.

4.

But the duress defense—which, after all, excuses

otherwise criminal activity—is properly raised in any

context only if some evidence is introduced to show

that the perceived threat lasted for the duration of

the unlawful conduct and that, during this period, the

defendant had no opportunity to avoid the threatened

harm through lawful means.* The requirement that

the prisoner return to custody or surrender to a public

official, lawyer, court, or responsible intermediary

with a view toward a prompt return to safe custody °

2 See, e.g., United States v. Wood, 566 F.2d 1108, 1109 (9th

Cir. 1977); D’Aquino v. United States, 192 F.2d 338, 358

n.11, 359 (9th Cir. 1951), cert. denied, 343 U.S. 935 (1952) ;

Gillars v. United States, 182 F.2d 962, 976 n.14 (D.C. Cir.

1950); RJ. Recreation Center v. Aetna Casualty & Surety

Co., 177 F.2d 6038, 605 (1st Cir. 1949); Shannon v. United

States, 76 F.2d 490, 493 (10th Cir. 1935) ; People v. Wester,

237 Cal. App. 2d 232, 46 Cal. Rptr. 699 (1965) ; M’Growther’s

Case, 168 Eng. Rep. 8 (K.B. 1746); W. LaFave & A. Scott,

Handbook on Criminal Law, § 49, at 378 (1972) ; Note, Duress

and the Prison Escape: A New Use for an Old Defense, 45 S.

Cal. L. Rev. 1062, 1065-1067 (1972). See also Respublica v.

McCarthy, 2 U.S. (2 Dall.) 86 (Sup. Ct. Pa. 1781).

Contrary to respondents’ claim (Resp. Br. 51), the court

in Respublica v. McCarthy appears to have explained to the

jury, in a manner largely indistinguishable from this case

(App. 224-225; Tr. 806-807), why the duress defense to the

charge of treason was unavailable as a matter of law if the

defendant remained with the British forces for an extended

period.

’ Respondents presented no evidence that these alternatives

to remaining at large were unavailable or that they resorted

to them. Respondents point out (Resp. Br. 22-24, 30, 79-81)

that they presented or proffered evidence in an effort to ex-

plain their admitted failure to return. However, their alleged

concern about conditions at the D.C. Jail that they claim

5

is but an application of this general principle in the

specific context of prison escape. Put another way, an

inmate has a continuing, affirmative obligation to

submit to custody that is free of truly threatening

conditions; his escape, in order to be excused, can

be no more than the temporary and limited departure

necessary to place himself in that custody.

In an attempt to meet these arguments, respondents

rely (Resp. Br. 56-61) on several state decisions

which, they suggest, have wholly discarded the return

requirement as a precondition to submitting the

duress defense to the jury.* Two of the state cases

which they cite, People v. Luther, 394 Mich. 619,

232 N.W. 2d 184 (1975), and People v. Unger, 66

Ill. 2d 333, 362 N.E. 2d 319 (1977), did hold that

led to their escape did not warrant resort to the further self-

help measure of remaining at large. They had an affirmative

obligation to resort to other measures to enable them to re-

turn to custody safely. Thus, their evidence, even if it fur-

nished a credible explanation for their failure to return,

would not furnish a legal excuse for their conduct.

* Respondents also cite (Resp. Br. 54-55) People v. Lover-

camp, 43 Cal. App. 3d 823, 118 Cal. Rptr. 110 (1974). Con-

trary to respondents’ assertions, however, the court in Lover-

camp made clear that the defense is unavailable unless the

defendant makes a prima facie showing that each of the

elements of the defense it identified was satisfied, and it

reversed the cunviction only after considering the evidence

as it bore on each of those elements. 43 Cal. App. 3d 831-832,

118 Cal. Rptr. at 115-116; accord, United States v. Michelson,

559 F.2d 567, 570 (9th Cir. 1977).

Since the filing of our opening brief, one additional juris-

diction has adopted the Levercamp formulation of the duress

defense in the prison escape context. See State v. Cross, 58

Ohio St. 482, 486, 391 N.E. 2d 319, 323 (1979).

6

strict compliance with all five of the conditions identi-

fied in People v. Lovercamp, 43 Cal. App. 3d 823, 118

Cal. Rptr. 110 (1974), is not required and that the

failure to satisfy these criteria was a matter for the

jury to consider in determining whether the defendant

in fact acted under duress. But in People v. Luther,

the defendant was captured just eight hours after the

escape; similarly, in People v. Unger, the defendant

was apprehended only two days after his escape, and

the court stressed that the defendant testified he in-

tended to return once he found someone who could help

him (66 Ill. 2d at 343, 362 N.E. 2d at 323). Under

these circumstances, where the defendant may not

have had a reasonable time in which to compose him-

self and develop a plan for surrender, it is under-

standable that the courts would not reject the duress

defense on the ground that the defendant had not al-

ready reported to authorities.’ It is not at all clear

that even the Luther and Unger courts would be pre-

pared to permit a defendant to raise a duress defense

if he, like respondents, made no serious effort to turn

himself in for at least a month after his departure.*®

5 Indeed, in Lovercamp itself the court dispensed with the

requirement of an “immediate return” in favor of a require-

ment of an intent to return, because the defendant had been

apprehended right after her escape. 43 Cal. App. 3d at 832,

118 Cal. Rptr. at 116.

® The other state case relied upon by respondents, Esquibel

v. State, 91 N.M. 498, 576 P.2d 1129 (1978), did reject a

requirement of strict compliance with the Lovercamp condi-

tions, but involved no question of the defendant’s failure to

return.

7

2. Alternatively, respondents argue (Pet. Br. 82-

98)—contrary to the holding of every court of ap-

peals that has considered the question (Govt. Br. 32-

33), including the court below (Pet. App. 10a)—

that a defendant cannot be guilty of escape under 18

U.S.C. 751 merely because he fails to return to cus-

tody after an initial departure that was justified by

duress. The common sense point underlying the

uniform holding of the cases respondents urge the

Court not to follow is that Congress, in enacting Sec-

tion 751, could not have intended to permit a prisoner

to remain free with impunity simply because his ini-

tial departure did not give rise to criminal liability

under the circumstances (Pet. App. 10a n.17; see

also Comment, From Duress to Intent: Shifting the

Burden in Prison-Escape Prosecutions, 127 U. Pa.

L. Rev. 1142, 1143 (1979) ).

This principle was recognized at common law as

well. For example, at common law, a prisoner whose

delivery from restraint was effected by a rescuer

without the prisoner’s connivance or assent nonethe-

less was guilty of escape if he voluntarily remained

at liberty following the rescue. 2 J. Bishop, Criminal

Law § 1086, at 810 (9th ed. 1923). Similarly, if a

prisoner’s act of departure was directed or permitted

by his jailer, his absence from custody was nonetheless

punishable as an escape because “‘it is the duty of every

man to submit himself to the restraints imposed by

law.” Riley v. State, 16 Conn. 47, 51 (18438); see

also Hobert & Stroud’s Case, 79 Eng. Rep. 784 (K.B.

8

1630); 2 J. Bishop, supra, § 1093 at 812, § 1104 at

819.’

Later congressional action touching on Section 751

reflects this principle as well. In 1965, Congress au-

thorized the Attorney General to permit prisoners to

go on furlough, to place them in community treat-

ment centers, and to authorize their participation in

work release programs (18 U.S.C. 4082(c)). This

7 Respondents attempt to show (Resp. Br. 85-86) that Sec-

tion 751 covers only the actual departure from custody by

citing brief passages in five pre-1930 state cases that make

reference to the act of departure. Four of the cases involved

the responsibility of the public official having custody of the

prisoner for permitting the prisoner to depart. In such a

situation, the official’s crime would be complete as soon as

he permitted the prisoner to depart from his control, and

there would have been no reason for the court to consider

the significance of the prisoner’s remaining at liberty. The

fifth case, Whitaker v. Commonwealth, 188 Ky. 95, 221 S.W.

215 (1920), concerned a prisoner who unsuccessfully sought

to justify his escape on the ground that his confinement was

unlawful. He voluntarily left custody, and again there was no

occasion to consider any question relating to his continued

absence from custody.

Nor can respondents obtain any support from Orth V.

United States, 252 F. 566 (4th Cir. 1918) (see Resp. Br.

87), which held that a person who had aided a prisoner after

his departure from prison could not be convicted of assisting

an escape. The federal statute in effect at the time separately

prohibited assisting an escape and harboring a prisoner who

had already escaped (Orth v. United States, supra, 252 F.

at 570; see also 18 U.S.C. 752, 1072), and it is not surprising

that the court insisted that the defendant be charged only

with the crime that the evidence supported. At common law,

a single offense covered both assisting the departure and the

subsequent harboring. See 2 J. Bishop, supra, § 1102 at 818;

2 W. Hawkins, A Treatise of the Pleas of the Crown, ch. 29,

§ 26, at 448 (6th ed. 1787).

9

legislation specifically provides (18 U.S.C. 4082(d)

(emphasis added) ) :

The willful failure of a prisoner to remain with-

in the extended limits of his confinement, or to

return within the time prescribed to an institu-

tion or facility designated by the Attorney Gen-

eral, shall be deemed an escape from custody of

the Attorney General punishable as provided in

chapter 35 of this title [which includes 18 U.S.C.

751-757].

This provision makes clear Congress’ understanding

that the concept of escape embraces the failure to

return following lawful departures. S. Rep. No. 613,

89th Cong., Ist Sess. 3 (1965) ; Rehabilitation of Fed-

eral Prisoners: Hearing on H.R. 6964 Before Subcom.

No. 3 of the House Comm. on the Judiciary, 89th Cong.,

1st Sess. 6 (1965). See also United States v. Phipps,

543 F.2d 576 (5th Cir. 1976); United States v.

Vaughn, 446 F.2d 1317, 1818 (D.C. Cir. 1971).

Respondents argue, however (Resp. Br. 89-95),

that their failure to return can give rise to criminal

liability only if escape under 18 U.S.C. 751 is a

“continuing offense,” which, relying on cases utilizing

that term in unrelated contexts, they contend it is not.

Contrary to respondents’ assertion, the validity of the

return requirement does not depend on characterizing

escape as a “continuing offense.” If the crime of

escape is viewed as instantaneous in nature, neces-

sarily complete and terminated at the moment of

departure, the return requirement would properly be

viewed as a condition subsequent to the initial de-

10

parture that must be satisfied in order to invoke the

affirmative defense of duress.

But a number of courts (Govt. Br. 32-33), includ-

ing the court below (Pet. App. 26a n.52), have chosen

to characterize escape under Section 751 as a “con-

tinuing offense” in the course of explaining that an

inmate whose initial departure may be excused be-

cause occasioned by coercion (or mistake or intoxica-

tion) nonetheless has an obligation, once free, to re-

turn to custody when he is no longer subject to the

coercion that led to his departure (or when he realizes

his mistake, or is no longer intoxicated). This char-

acterization of escape as an offense that continues into

the period of unlawful liberty is consistent with the

nature of an escape, which, unlike attempted escape,

is consummated only if the prisoner actually attains

his liberty for an appreciable period of time, ‘‘whether

that be one minute or one hour or one year” (Pet.

App. 62a, Wilkey, J., dissenting).

All of the cases cited by respondents that use the

term “continuing offense” (Resp. Br. 89-92) were con-

cerned with whether the defendant’s conduct after his

crime was complete and had given rise to criminal

liability was nevertheless part of a “continuing of-

fense” for purposes of certain procedural protections.

See Toussie v. United State, 397 U.S. 112 (1970);

United States v. Kissel, 218 U.S. 601 (1910);

United States v. Irvine, 98 U.S. 450 (1878) (statute

of limitations) ; United States v. Cores, 356 U.S. 405

(1958) (venue); Jn re Snow, 120 U.S. 274 (1887)

(multiple prosecutions). There is no occasion for the

Court to consider whether escape is a continuing

ll

offense for any of these purposes. In the present case,

if respondents’ initial departure was justified by

duress, their conduct had not, at the time of departure,

ripened into a completed offense for which they were

criminally liable. The characterization of escape as a

“continuing offense” when the duress defense is raised

is but one way of explaining that the prisoner’s duty

to submit to custody continues into the period of liberty

following the excused departure and that criminal

liability will attach if he fails to satisy that duty.

3. Respondents “urther argue (Resp. Br. 71-82)

that their indictments were defective because they did

not notify respondents that the government would rely

on the theory of escape as a continuing offense. But an

indictment need only contain the “elements of the of-

fense intended to be charged, ‘and sufficiently apprise" C- J

the defendant of what he must be prepared to meet,’ ”

Russell v. United States, 369 U.S. 749, 763 (1962),

quoting Cochran and Sayre v. United States, 157

U.S. 286, 290 (1895). Failure to return to custody

voluntarily is not an essential element of the crime

of escape.* The offense is complete when the prisoner

gains his liberty for a period of time, either brief

or extended, irrespective of how that liberty is later

terminated. The indictments here (App. 9-10, 15)

therefore fully explained the elements of a completed

crime.

8 Contrary to respondents’ contention (Resp. Br. 75), we

did not argue in our opening brief that failure to return is

an element of the offense. We noted only (Govt. Br. 48-49)

that an absence from custody of at least some duration is

implicit in the completed crime of escape.

12

The failure to return became relevant only when

respondents raised the affirmative defense of duress.

There was no need for the indictments to anticipate

affirmative defenses by containing allegations that

would negate them. United States v. Sisson, 399

U.S. 267, 288 (1970). It does not matter for these

purposes whether, as a conceptual matter, the return

requirement is properly viewed as a condition subse-

quent that must be satisfied in order to raise the

duress defense in connection with the initial depar-

ture, or whether failure to satisfy the return require-

ment is better viewed as an element of the “continu-

ing offense” of escape. In either event, existing case

law (see Govt. Br. 32-33) put respondents fully on

notice that in order to support a duress defense, they

would have to justify their failure to return promptly.

Cf. Grayned v. City of Rockford, 408 U.S. 104, 110

(1972) ; United States v. Vuitch, 402 U.S. 62, 71-72

(1971).°

*In any event, the language of the indictment, referring

to respondents’ escape “[o]n or about August 26,” was broad

enough to embrace a departure on August 26 that did not

give rise to criminal liability until respondents chose to stay

away once they were free of the coercion they claim caused

their departure. United States v. Phipps, supra. Moreover,

contrary to respondents’ contention (Resp. Br. 76, 79), the

government’s arguments before the trial judge put them on

notice of the manner in which it would meet respondents’

duress defense. At the beginning of the trial the prosecutor

announced that he would oppose any jury instruction on the

defense of duress because respondents admittedly failed to

report promptly to proper authorities following their depar-

ture (App. 20).

18

Nor is there any substance to respondents’ related

claim (Resp. Br. 73-78) that the jury’s verdict neces-

sarily rested on their acts of departing and that

affirmance. of their convictions in this Court would

impermissibly rest on different acts—their failure to

return to custody. Once the duress defense was re-

moved from the case by the district court (App. 225;

Tr. 806-807), there was no occasion for the jury to

focus on respondents’ failure to return. Affirmance of

their convictions by this Court on the ground that the

duress defense was properly removed from the case

would therefore rest, as did their original convic-

tions, on the jury’s finding that respondents did

escape and flee from the D.C. Jail on or about Au-

gust 26, 1976.”

4, Respondents appear to concede (Resp. Br. 106)

that their departures from the D.C. Jail were not

compelled by threats of imminent death or serious

bodily injury of the kind ordinarily required in duress

cases. But they argue (Resp. Br. 99, 104, 106) that

the traditiona! limitation of the duress defense to

“bhack-to-the-wall situations” (Pet. pp: 53a, Wilkey,

J., dissenting) should be relaxed in the prison escape

context and that, in any event, the question of the

nexus between their evidence of jail conditions and

their admitted escapes was for the jury to consider.

10 Cole v. Arkansas, 333 U.S. 196 (1948), in which the Court

reversed a state supreme court’s affirmance of a conviction

under a different statutory provision than that under which

the defendant was tried, therefore lends no support to re-

spondents (see Resp. Br. 73). Presnell v. Georgia, 439 U.S.

14 (1978) (see Resp. Br. 78-75), is inapposite for the same

reason.

14

This argument again misconceives the nature of the

duress defense and the respective roles of the judge

and jury in an escape case.

The widely accepted conditions set forth in People

v. Lovercamp, supra, for the assertion of the duress

defense to prison escape (Govt. Br. 29-30) represent

a careful balancing of the strong societal interest in

preserving prison discipline and protecting the safety

of inmates, corrections officials, and the public on the

one hand, and, on the other, a recognition that in-

mates may, in extreme situations, effectively have no

choice but to escape rather than to suffer threats of

death or serious physical harm. Note, The Necessity

Defense to Prison Escape After United States v.

Bailey, 65 Va. L. Rev. 359, 871 (1979). The specific

requirement that the threatened harm be truly seri-

ous and immediate in order to justify a departure

must therefore be viewed as a legal standard, not

merely useful evidence for the jury to consider in

determining whether the defendant was actually moti-

vated by prison conditions rather than a desire to be

free. Absent extreme conditions meeting the im-

mediacy standard, the prisoner is required by law to

continue to submit to confinement, and the jury ac-

cordingly, is not permitted to excuse his escape.

The logical extension of respondents’ position is

the elimination of any threshold quantum of proof

as a condition of submitting the duress defense to

the jury and, thereby, the effective elimination of a

consistent and identifiable legal standard respecting

the immediacy and seriousness of threatened harm

15

that would justify an escape. Respondents’ argument

is also fundamentally inconsistent with the doctrine

that the defense of duress is, as a matter of law,

only available when there was insufficient opportunity

to avoid the threatened harm through pursuit of

lawful alternatives, such as seeking protection of the

courts or internal administrative remedies. See, ¢.g.,

United States v. Wood, supra, 566 F. 2d at 1109;

Shannon v. United States, supra, 76 F. 2d at 493. See

generally Note, The Necessity Defense to Prison

Escape After United States v. Bailey, swpra, 65 Va.

L. Rev. at 371-378.

5. Respondents seek to circumvent the strict im-

mediacy requirement of the duress defense by con-

tending (Resp. Br. 107-126) that the escape statute

requires proof of intent to avoid normal conditions

of confinement and that an escapee whose initial

departure is allegedly motivated by intolerable con-

ditions therefore lacks the intent necessary to commit

the crime of escape. This assertion must be rejected

for at least two reasons.

First, as we discussed in our opening brief (Govt.

Br. 51-72), escape is a general intent crime. The

only intent required is the intent to depart or to “go

beyond permitted limits” (see, e.g., R. Perkins, Crimi-

nal Law 504 (2d ed. 1969)).** Where, as here, the

11 Respondents contend (Resp. Br. 108, 116) that the dis-

tinction between general and specific intent offenses should be

abandoned. But far from impeding analysis, as respondents

suggest (ibid.), this distinction is often important in the

articulation of the mens rea element of criminal liability.

See, e.g., United States v. United States Gypsum Co., 438

16

prisoner’s going “beyond permitted limits” was indis-

putably intentional, evidence that his motive might

have been to avoid certain prison conditions is simply

irrelevant to the issue of intent.”

U.S. 422, 444-445 (1978); Morissette v. United States, 342

U.S. 246, 270-271 (1952) ; Dennis v. United States, 341 U.S.

494, 500 (1951); Screws v. United States, 325 U.S. 91, 101-

102 (1945).

Although the Model Penal Code does not preserve the con-

cept of general intent, it does distinguish between intent

involving only knowing commission of a criminal act and

intent requiring, in addition, some particular purpose or

objective. American Law Institute, Model Penal Code

§ 2.02(2) (Proposed Official Draft 1962). Es¢ape requires

only knowing or even reckless, not purposéfu!, conduct under

the Code. Jd. at §§ 2.02(3), 242.6(1). In the present case, of

course, respondents knew that they were leaving custody,

whatever may have been their purpose in doing so.

12 The only escape cases respondents cite in support of their

theory of intent are United States v. Nix, 501 F.2d 516 (7th

Cir. 1974), and several cases decided by state courts of ap-

peals in Florida (see Resp. Br. 118-120). The court in Nix

defined escape as “a voluntary departure from custody with

an intent to avoid confinement,” 501 F.2d at 519, and con-

cluded that gross intoxication could negate that intent, id.

at 519-520. It is obvious that the intent the court had in

mind was only the intent to leave the boundaries of confine-

ment, not particular attributes of that confinement.

The Florida cases likewise do not support respondents.

Bravero v. State, 347 So. 2d 781 (Fla. Dist. Ct. App. 1977),

held that the defendant’s testimony that he left custody to

obtain medical treatment could support a finding that “he

left confinement because of necessity rather than through a

willful intent to avoid lawful confinement,” id. at 784. De-

spite the reference to intent, it seems clear that the court was

simply applying the necessity defense. That Bravero merely

involved an application of the necessity defense is confirmed

by the same court’s later decision in Watford v. State,

853 So. 2d 1268 (Fla. Dist. Ct. App. 1978). The Bravero

court’s reference to the earlier decision in Lewis v. State,

17

More fundamentally, as Judge Wilkey concluded

in his dissent, the practical result of holding the at-

tributes of confinement to be relevant on the question

of intent would be the “aboli[tion of] the salutary

standards that heretofore have governed the defenses

of duress and necessity” (Pet. App. 66a-67a) and

the replacement of those carefully fashioned objective

standards with “a nebulous and essentially deter-

ministic view of ‘voluntariness’ * * * [that would

permit the] [d]efendant * * * to adduce any and all

evidence that may have some kind of bearing on his

motivation * * *, This deterministic approach is a

prescription for chaos and has been rejected in the

criminal law for hundreds of years” (id. at 70-73a).

For these reasons, as well as those discussed in our

opening brief, the judgment of the court of appeals

should be reversed.

Respectfilly submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

EDWIN S. KNEEDLER_

Assistant to the Solicitor General

JEROME M. FEIT

JOHN F. DEPUE

Attorneys

NOVEMBER 1979

818 So. 2d 529 (Fla. Dist. Ct. App. 1975), also relied upon

by respondents, indicates that this decision should be read

in the same fashion. Helton v. State, 311 So. 2d 381 (Fla.

Dist. Ct. App. 1975), the last of the Florida cases cited by

respondents, merely held that some intent to avoid confine-

ment is necessary—a point we do not dispute.

W ov. 8. GOVERNMENT PRINTING OFFICE; 1979 304237 112