Necessity and the Military Justice System A Proposed Special Defense

• Author: by Captain Eugene R. Milhizer
• Pages: 03

1. INTRODUCTION

   The defense of necessity1 may justify a nominal vdation of the law m order to prevent a greater harm.' Ordinanly, the defense 1s wallable to one who intentionally causes a harm or ewl contemplated by an offense, provided that the justifying cmum8tances result in a lesser net harm or evil as intended by the The necessity defense

   NECESSITY AND THE MILITARY

   1s neither complex nor exotic. it has Its angms in the common law? 13 explicitly included 8s part of the Yodel Penal Code,j and ''1s recognized in about one-half of Amencan jurisdictions '"

   Many courts have nonetheless been reluctant to embrace the de-fense af necessity :

   Some of this reststance might be enplamed by a knee-jerk misapplication of the infamous hfeboat cases 'It might also be due. in part. to a more generalized fear that private moral codes will be substituted for legislative determinations: resulting in a ne- the Ian Stare b Diana. 24 Vaih App 906. 913 604 P 2d 1312, 1316 81979, Thus the defeme ofneceis~fi,formalma the common sense orooamtmn that '''~ltmakes no

   . .

   renre to pumh perrons rho haie acted to avmd great harm. even If the! have 'broken the la^' to do io" Stem Commenl on Justifieoiion and Excuse, 1 ivarkmg Papers of the Uarianal Commisiian on Reform of Federal Criminal Lars 261 270 1966

   'See infra nates 19-59 and ~ccampanying text see YISO

   Arnolds & Garland Phr

   Dennsr of.Yscassq an Crrminvl La& TheRight 80 Choose lhsLesrarEti1 65 J Crim L &Criminology 289. 291 ,19748

   '\ladel Penal Code 9 3 02 !proposed Officml Draft 19621 heremailer >lode1 Penal Code k 3 021 oroildes ~n releiant ~aif

   ,a the harm or evil aought to be avoided by such conduct LQ greater

   than that aought to be pwenred by thelau definingfhe offensecharged and,b8 neither the Code nm other lax, defining the ofiense provides ercep-f i m

   01 defensei dealing xith the specific aituaiion mvolied. and exclude the justification claimed does naf

   ~r negligent m bringing about the (>tu-1m6 01 evils or rn appraising the neeeiiitjfor his conduct. the 1~3f~fieafmnafforded by this Section IS unavailablem a pmiecuimn for any aiienie far Khich recklesinsri or negligence a i the case ma? he iufficei to eitablirh culpahdit)12 P Robmion sup70 note 1. at 46 Indeed this ifafement probably underestimates the groring acceptance of the necesmry defense See infia nores 109-22 end sccom-pan51ng text

   -Comment Sicrssq Ddmd A .Ye& Role in ihr Ciiminal Defrmr Srsmn 29 1 C L A

   L Rei, 409. 110 81381, Commentalori haie dryly naled that although elen the gods

   These C B ~

   da not howler stand for the broader pmpoiitm that neceism should be a didavored defense *\en when an lnnacenf life is taken These cases ~111 be

   diarvsied in greater detail infro notes 46-59 and accompanying lexr

   The Model Penal Code Commentan expressly acknarledgeb this concern and at. tempts tu addreea ~t noting "The balancing afe\iL ~annof.of EOYIJC be committed

   igaai NECESSITY DEFENSE

   cessity exception that swallows the rule of law Consequently, the defense often finds Its most meaningful expression in ad hoc JUKYnullification" and unsupervised prosecutorid

   The military justice system has fared no better.13 The defense of necessity is not recognized by the Manual for Courts-Martial The military courts likewise have not formally acknowledged the defense, but rather have given it an ad hoe, Imprecise, and often confusing

   Accordingly, commanders and judge advocates are forced to make largely intuitive determinations regarding the disposition of cases where the necessity defense is potentially raised.16 Military judges are sometimes requred to decide whether to admit evidence bearing on necessity and instruct on the issue without benefit of authoritative gu~dance.~'

   Where the necessity defense would apply. court members often must choose between violating their oath and the military judge's instructions, or convicting an accused who has acted admirably for society's aggregate benefit In short, the mili. tary justice system 18 confronted with the paradox of a fundamental and innately logical defense that lacks express approval and definitive exposition. This often results in the misapplication of the defense or Its outright failure to be applied

   This article seeks to address these problems by proposing a work. able special defense of necessity for the military. Selected aspects of 11s adoption and application to courts-martial will be discussed. The consequences of failing to adopt a necessity defense will also be ana-

   lyzed. Before any of these obpctives can be accomplished, however, a brief overview of the defense's common law origins. military prec. edent, and current cmhsn usage 1s required

   11. THE COMMON LAW ORIGINS OF THE NECESSITY DEFENSE

   The defenae of necessity has deep root@ and may be traced to the Bible Itself2o Lord Bacon, writing in a different context, long ago observed that "if a man steals viands to satisfy his present hunger, this is no felony nor larceny."z1

   As early as the mid-sixteenth century, English law expressed the nation that a criminal act may not be punishable if it is a reasonable response to an emergency In Reningei c Fogossa,i3 for example, the court stated: "A man may break the word of the law, and yet not break the law itself. . . where the words of them are broken to avoid greater Inconvenience, or thorough necessity or by compulsion ''24

   Several early English eases reflect recognition of the general pnn.

   ciple of Necessity justified breaking the law to save a life or extinguish a fire 2e Although exposing an infected person to the pubhc was B misdemeanor, necessity justified the exposure if the

   "1 TVhu-tona Criminal Law 409 rC Torcia 14th ed 19781 '~sb~bl~calanalaguetothenecei~itydefenseiatheleto m e human lives 'Then the memere were aimhie god and east forth the wares that *ere hn the shthem " Janah 16 The Yew Teirament 1hkewi.s eiprdefense justlfpng the estm of sacred bread or the temme, Chnst'r crucifinon repreaenrs the quint-essenna1 erpresamn ai nee3 Thm of course. 13 an overstatement of the present pls I

   U'hippel. 100 Cal App 261 279 P 1008 lCal

   Ct spp 19291 ,court says ~n dlcfs that "economic neies~ity" 19 never B defense e m ? ~n the extreme case. a& where a father burglariiei a baker? for the sole purpuie of procumg bread far hlr srsliing babies)

   **Comment, supra note 7. at 409 n 1 Tor a thorough discussion of the earl) deiel-opmenr of rhe necesslfy defenre ~n English Is%. see Arnaldr & Garland, supra note 4 81 291.92

   2A115611 Plovd 1 75 Eng Rep 1

   "Id st 19 75 Eng Rep at 29-30"See Garland, Carlmle, 2 C&M 77, 149 Eng Rep 661 (Ex 163ir #per curiam8.

   19881 NECESSITY DEFENSE

   person was being taken to a doctor.27 In case of emergency, jurors could depart without permission of the judge.28 Necessity might even permit prisoners to escape from a burning jail!*

   Early federal eases also recognize the necessity defenseso Necessity justified a violation of the embargo act by entry into a foreign part.31 In the proper ease, the courts would find mutiny justified where a ship was unseaw~rthy.~~

   Foul weather and a resulting long delay in reaching port justified withholding food from a ship's crew contrary to statutes3 One court even observed that high treason, parricide, murder, and other serious crimes might be justified by necessity?'

   Several generalizations can he drawn from the foregoing authority, First, the necessity defense was available at common law.35 Second, in order tQ trigger the defense, the act charged must have been done to avoid a significant evil.36 Third, no alternative means of action could have been available to the defendant.3' Finally, the response must have been proportional ta the evil avoided.38

   Although these principles can be derived from this authority, the development ofthe defense was neither smooth nor comprehensivess

   "Vanlandilla, 4 YLS 73. 105 Eng Rep 762 (K B 1815)

   "'[14551 Y B.T 14 H.7 256, at 4*'Rennmger Y Fagossa. 1 Plawd 1, 75 Eng Rep 1 (K B 15511. Y B T 15 H 72s.

   BT '"For a t h m w h diseussian of the early develooment of the necessm defenae m

   2: see dso Bssnder Y Bamett, 255 U.S 224 11521l.Amsnean law, lee Arnold8 & Garland. supm nofsi, at 252-54

   "The William Ore?. 25 F Cas 1800 (No 17,654)

   (C C C D X.Y 1810); bee also The

   Diana, 74 US 354 (18W (t~iuitifya veseel of a neutral party ~n attemptmg to enter B blockaded port she mvst be m such dime- a$ ta render her entry a matter of abaalute and uncontrollable necessity). The Struggle, 13 U S I9 Cranch) 71 (16153IBeVeTe weether and damage ta the ship did not necessitate d i n g to an unauthormd

   CBSBS would hold that the evd avoided need enlv he neater than & ewl mflwiPd B fundamental iudmal diafavor af Be defense faor the reamons sit fonh.&ites 9.10d'Amolds L Garland, supra note 4 at 294"Comment, suprcznole7. at405. sernlsoJ Hall, Gensral~neiplesaftheCnminaI Law 416 (2d ed 19601

   Commentators have noted that the "defense IS susceptible to ad hoc applications as Lt 1s intimately tled to the particular facts of each cadib0 Moreover. there are comparatively "few cases dealing with necessity, probably because these cases are often not prosecuted '"'

   Also, "[mlost of the precedential decisions deal with instances when the defense is not available, thereby providing no clear guide for when it 18 '142 Contributing difficulties include "the frequent failure ofjudges to discuss the doctrine in terms of relevant pnnc~ples These problems have caused some commentators to lament that "it IS imooswble to demonstrate wth any degree of satisfaction the historical opment of the law of nece~sity."'~

   devel-

   Against this backdrop, an English and an American mwt addressed the two celebrated lifeboat eases, which raise the defense of necesmtym Its most fundamental yet controveraal In the English c~se,1~ two sailors and a cabin boy were adrift ~n a lifeboat more than 1000 miles from land following B shipwreck On the twentieth day, having been nine days without food and seven days without water, the sahrs killed the cabin...