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26 UCLA L. Rev. 1355 (1978-1979)
Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape

handle is hein.journals/uclalr26 and id is 1371 raw text is: COMMENTARY SHOULD INTOLERABLE PRISON CONDITIONS GENERATE A JUSTIFICATION OR AN EXCUSE FOR ESCAPE? George P. Fletcher* In the last five years, appellate courts have responded sympa- thetically to the claims of prisoners who have escaped to avoid the threat of physical violence and homosexual rape. LovercampI be- gan the trend in 1974. Today the reports are replete with reversals directing trial courts to hear evidence bearing on the conditions that prompted the escape. The courts have moved so quickly into this new field that they have had little chance to refine the underlying rationale for admitting the evidence. Appellate opinions, as well as several commentators, have sought to squeeze the new issue into one of three received doctrinal categories: (1) duress,2 (2) necessity,3 and (3) the intent required for escape.4 The important preliminary question, however, is not which doctrinal label we should use, but whether the principle requiring consideration of the evidence is one of justification or of excuse. Does the threat of a homosexual rape render it right and proper for the defendant to escape from prison (a principle of justification)? Or is it rather that the im- pending violence negates the defendant's culpability for unlawful, unjustified escape (a principle of excuse)? This basic question in- fluences the contours of the defense. Among the controversial * Professor of Law, University of California, Los Angeles. I. People v. Lovercamp, 43 Cal. App. 3d 823, 118 Cal. Rptr. 110 (4th Dist. 1974). 2. People v. Harmon, 394 Mich. 625, 232 N.W.2d 187 (1975); People v. Luther, 394 Mich. 619, 232 N.W.2d 184 (1975). 3. People v. Unger, 66 Ill. 2d 333, 362 N.E.2d 319 (1977). 4. United States v. Bailey, 585 F.2d 1087 (D.C. Cir. 1978), cert. granted, 440 U.S. 957 (1979). 1355

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