§ 23.05 ESCAPE FROM INTOLERABLE PRISON CONDITIONS

• Jurisdiction: United States

§ 23.05. Escape from Intolerable Prison Conditions⁵²

[A] The Issue

Supreme Court Justice Harry Blackmun once wrote that "[t]he atrocities and inhuman conditions of prison life in America are almost unbelievable; surely they are nothing less than shocking."⁵³ Among the conditions that prisoners face are physical and sexual assaults from fellow inmates,⁵⁴ brutality at the hands of some prison guards, fires in their cells, excessive cold and heat, and inadequate medical attention.

Occasionally, a prisoner will seek to avoid harsh prison conditions by escaping confinement. She may later be prosecuted for the crime of escape; in such circumstances, the escapee may defend her conduct on the ground that she fled due to "intolerable prison conditions." Sometimes such a claim is based on the defense of duress; other times the justification defense of necessity is advanced.

[B] The Law

At the policy level, courts are concerned that if an inmate who flees due to alleged intolerable prison conditions avoids conviction on this ground, other inmates will be emboldened to attempt to escape. As a result, some courts originally refused to recognize any defense in such circumstances.⁵⁵ Most modern courts, however, recognize the right of an escapee to assert an intolerable-prison-condition claim. They split, however, on whether the inmate should raise the defense of necessity⁵⁶ or duress.⁵⁷

As either a necessity or duress defense, courts almost always place special restrictions on its use.⁵⁸ From a practical perspective, the most significant limitation placed on the defense is the requirement that the escapee make "a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity ha[s] lost its coercive force."⁵⁹ That is, once the prisoner attains a point of safety outside the prison, the escapee must turn herself in; if she fails to do so, the defense of duress or necessity is unavailable as a matter of law.⁶⁰ A few courts do not go this far, instead treating the actor's failure to turn herself in as merely one factor in assessing the escapee's claim.⁶¹

[C] Necessity Versus Duress

[1] The Conceptual Problem

Neither necessity nor duress neatly covers all intolerable-prison-condition cases. For example, when an inmate flees as the result of a threatened sexual assault, a necessity claim is inappropriate in jurisdictions that still limit that defense to emergencies created by non-human forces. On the other hand, the defense of duress ordinarily is triggered when a coercer orders another person to commit the crime for which the latter individual is prosecuted. In prison cases, however, threats may spur an inmate to flee, but nobody commands her to escape.

[2] Why the Nature of the Defense Is Significant

[a] The Message of Acquittal

An inmate does not care whether she is acquitted on the basis of necessity or duress. Courts, lawyers, and prison officials, however, understandably worry about the message sent in prison escape cases.

The two defenses send different messages. Acquittal on the basis of necessity implies that it is right or, at least, tolerable, for a prisoner to escape confinement in specified circumstances; acquittal on the ground of duress implies only that the escapee should not be blamed for fleeing. A prison official is...