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82 Tul. L. Rev. 191 (2007-2008)
Codifying Necessity: Legislative Resistance to Enacting Choice-of-Evils Defenses to Criminal Liability

handle is hein.journals/tulr82 and id is 209 raw text is: Codifying Necessity: Legislative Resistance To Enacting Choice-of-Evils Defenses to Criminal Liability Michael H. Hoffheimer This Article explores legislative resistance to codifjng a general necessity or choice-of- evils defense. It documents the fact that the federal government and the majorti ofstates have refused to enact any form of the necessity defense, while those states that have enacted some version of the defense impose significant restrictions that limit its availability The Article argues that while the Model Penal Codes necessity defense retains a privileged position in academic discussions, the Code version of the defense is in fact bad law almost everywhere. The Article links the Model Penal Code lack of influence to the utilitarian law reform goals of the Code s drafters and their failure to appreciate the depth ofjudicial and popular opposition to the defense ofnecessity I. INTRODUCTION ............................................................................. 192 II. CLARIFYING THE ISSUE ................................................................ 198 III. HISTORY OF THE NECESSITY DEFENSE AT COMMON LAW .......... 200 A. Common Law Treatises ..................................................... 200 B. Nineteenth-Centwy Cases ................................................. 205 1. United States v Holmes ............................................ 205 2. Regina v Dudey & Stephens ................................... 211 3. Nineteenth-Century Codes ........................................ 214 IV THE MODEL PENAL CODE AND THE CHOICE OF EVILS ............... 217 A. Glanwile Williams Utilitarian Argument for a General Necessity Defense ................................................ 217 * © 2007 Michael H. Hofiheimer. Professor of Law and Mississippi Defense Lawyers Association Distinguished Lecturer, University of Mississippi School of Law. B.A. 1977, The Johns Hopkins University; Ph.D. 1981, The University of Chicago; J.D. 1984, University of Michigan Law School. I am grateful to the late Francis A. Allen for introducing me to the necessity defense in 1981 and for answering questions in 2006 about the Model Penal Code, for which he served as adviser and special consultant. I thank Joshua Dressier, Lloyd L. Weinreb, Richard L. Barnes, Jack Wade Nowlin, and Christopher R. Green for helpful critical responses to drafts of this Article. I thank Markus Kirk Dubber for research suggestions. Research was supported by a grant from the National Center for Justice and the Rule of Law, which is supported by Grant No. 2000-DD-VX-0032 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office of Victims of Crime. Points of view or opinions in this Article are those of the Author and do not represent the official position of the United States Department of Justice.

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