Escape from Cruel and Unusual Punishment: A Theory of Constitutional Necessity

The inmate who escapes from a federal or state prison and seeks to introduce evidence of unconstitutionally cruel and unusual confinement conditions to defend her action is barred by the well-established rule that prison conditions alone, no matter how intolerable or inhumane, neither justify nor excuse escape. If she attempts to use the defense of necessity—a limited exception to this rule—the prisoner will be required to show that a specific, imminent threat of death or serious injury prompt her escape. Evidence of prolonged or repeated deprivation and mistreatment sufficient to prove a violation of the eighth amendment may not be sufficient to ground a necessity defense. Frequently, such evidence will fail to show that the prisoner\u27s physical safety was gravely and immediately imperiled at a point in time very close to her escape. The recent case of United States v. Bailey may represent the beginning of a significant change in this area. In Bailey, the United States Court of Appeals for the District of Columbia Circuit reexamined the relevance of conditions of confinement to the imposition of criminal liability for escape. This reevaluation produced a theory of escape which suggests that, under certain circumstances, escape from unconstitutional conditions would not be punishable as a crime. This Note explores the case for broadening the necessity defense to encompass escape from conditions violating the eighth amendment. Using Bailey as a starting point, it argues that recognized constitutional principles suggest that, when no other remedies are available or effective, escape from cruel and unusual punishment can be justified. After considering the theoretical support for this application of the necessity defense, this Note discusses some practical concerns in using the defense, concentrating first on the jury\u27s role in determining whether conditions are constitutionally impermissible and then on some of the factors relevant to evaluating the presence of viable alternatives to escape