The classic example of the necessity defense involves a prisoner escaping from a burning prison. Surely, the law would not require them to stay in the prison when doing so would put their life at an immediate and grave risk. This example epitomizes the purpose of the necessity defense; society would rather the prisoner survive and leave prison than die ablaze while obeying the letter of the law. In recent years, the difference between the two justification defenses of necessity and duress has become blurred, especially in cases involving prison escape. Both are equally applicable, and both are relevant in the context of the COVID-19 pandemic, since prisoners may be forced to choose between the consequences of contracting a serious virus with access only to prison healthcare or committing a serious offense by leaving prison. This Comment presents the legal background of the necessity and duress defenses with particular emphasis on their application to prison escapes. It critiques the United States Supreme Court’s seminal decision regarding the application of these defenses to prison escapes. It also analyzes the framework under which such defenses may be raised in the context of COVID-19—both the potential problems and potential solutions. Overall, this Comment illustrates the reality of healthcare in the current prison system. With an aging population and inadequate access to healthcare and sanitation, prisoners need relief sooner rather than later, lest they be forced into the extreme option of fleeing the system altogether.
Cite as: Bill Clawges, Reexamining the Application of Duress and Necessity Defenses to Prison Escape in the Context of COVID19, 112 J. Crim. L. & Criminology Online 83 (2022).