Concept
Emergency and Alternatives
Necessity (choice of evils)
Emergency and Alternatives
Model Penal Code § 3.02(1) makes conduct justifiable when the actor believes it necessary to avoid a harm or evil to himself or to another, subject to the comparison of harms and the two legislative-displacement conditions, but the text never says what makes conduct necessary.1 Courts have filled the gap by reading the idea of necessity into the rules that govern jury instructions. Their formulations differ somewhat from one jurisdiction to the next, yet they commonly break the idea into working questions: whether the danger was clear and imminent, whether the actor could reasonably expect the conduct to abate it, and whether any effective legal alternative existed.2 These are judicial elements, and they do not appear as separate words in § 3.02(1).
Treating them as judicial elements has a practical consequence. A defendant who wants the jury to hear a necessity defense must first offer evidence on each element, and a trial judge who finds the evidence lacking on any one of them may rule, as a matter of law, that the defense is unavailable.3 Because courts generally apply the defense quite strictly, the elements operate as a gate that can close before the jury deliberates at all.4 The fourth element in the most common formulation, the comparison of the harm avoided with the harm caused, belongs to the next section, so the focus here stays on the danger, the response, and the alternatives.
Each element answers a different way in which the claim that the actor had no choice can be false. The danger may not be real, or may lie too far ahead; the offense may do nothing about the danger; or some other course may have dealt with it at lower cost. Behind all three stands one premise: the defense applies when the actor faces a forced choice between two evils, breaking the law and producing some harm, or obeying it and allowing a greater one.5 Where the harm is distant, the conduct futile, or a lawful route open, there was no forced choice, and nothing shows that the offense was the lesser evil. Requiring a real emergency, an effective response, and the absence of alternatives also keeps the defense from becoming a license for anyone with a worthy cause to take matters into his own hands. The sections below follow the order in which the actor meets the elements, beginning with the danger.
Clear and Imminent Danger
The first element asks whether the harm the actor sought to avoid was real, reasonably certain, and close at hand. One appellate court that rejected a necessity claim by people who trespassed at a nuclear power plant explained that the defense reaches only harms that are readily apparent and recognizable to reasonable persons, and that it cannot justify acts aimed at foreclosing speculative and uncertain dangers.6 The same court described imminence in ordinary terms: the danger must be, or must reasonably appear to be, threatening to occur immediately, near at hand, and impending.7
Imminence matters because of what it reveals about the actor's options. Until the threatened harm is immediate, there are generally ways of avoiding it other than disobeying the law: the rescue ship may appear, the storm may pass, and so the actor must wait until the hope of avoiding the harm lawfully has disappeared.8 An actor who breaks the law early is wagering on a forecast, and the wager is lopsided, because the violation is a certain harm today while the feared disaster is still a prediction that may never come true. Imminence therefore works as a stand-in for the third element, the absence of alternatives, and the two elements often fail together.
Two decisions show the element failing for different reasons. In the nuclear-plant case, the plant had been shut down for two weeks when the defendants trespassed, and the court held that even if low-level radiation and waste were coming from the idle plant, that was not the kind of danger that counts as an emergency, so the defense was unavailable as a matter of law.9 The danger there was diffuse and speculative. In State v. Green, a Missouri decision, a frail prison inmate who had been repeatedly raped by other inmates escaped to avoid an attack threatened for that evening, and the court held the escape unjustifiable as a matter of law because he had several hours in which to consider and report the threats.10 The danger in Green was real and grave, so the failure was of a different kind: time remained, and with time came the option of reporting. The first case fails on the quality of the danger and the second on its nearness.
The standard picture of a danger that satisfies this element is the person lost in a blizzard who breaks into a mountain cabin to stay alive.11 A twin that changes only the weather shows where the element draws its line.
Because imminence is a judicial gloss, the Code's own text contains no imminence requirement. Under § 3.02 as written, if the jury finds that the harm avoided was greater than the harm caused and the defendant believed the conduct necessary, the harm need not have been imminent.12 Students who recite imminence as an element of § 3.02 itself are attributing to the Code a limit that courts added, and an answer on a Code-based problem should say where the requirement comes from. Even there, a distant harm will usually fail anyway, because an actor with time to spare will usually have lawful options, which the third element takes up.
Effective Conduct
The second element looks at the actor's response and asks whether the actor could reasonably expect the conduct to avoid or reduce the harm. The common formulations require a reasonable expectation that the defendant's action will effectively abate the danger, and the nuclear-plant court explained that, because the harm must be real, the chosen conduct must support a reasonable belief or inference that it would be effective in avoiding or alleviating the impending harm.14 Put another way, there must be a causal connection between the illegal act and the harm the actor wanted to avoid.15
The reason lies in what the defense is for. An offense is treated as justified because it buys something worth more than it costs. Conduct that does nothing about the danger buys nothing, so the offense adds its own harm to the harm already threatened, and the result is worse than if the actor had done nothing. That is why law-breaking that is symbolic, or that aims at drawing attention to a danger or pressuring others to remove it, falls outside the defense: the danger stays exactly where it was. In the nuclear-plant decision, the defendants' trespass neither ended nor reduced the danger they attributed to the radioactive fuel in the plant, and the court described the trespass as a deliberate and calculated choice rather than an act urgently needed to avoid a clear and imminent danger.16
The element is phrased as an expectation, so it is judged from the actor's position at the moment of acting and not from the outcome. A plan that was sound when made satisfies the element even if it later fails, in the same way the firebreak in the previous section was not disqualified because the fire might have died out on its own. A plan that could not reasonably have been expected to work does not satisfy the element even if luck produces a good result.17
The same truck, the same taking, and the same worthy motive produce opposite results because only one use of the truck touches the water. The comparison also shows that effectiveness is separate from imminence. The river is cresting within hours in both versions, so the first element is met either way, and the second element alone separates the cases. The resident who drives to the capital has done nothing to the flood, however admirable her purpose.
No Legal Alternative
The third element holds that an actor is not justified if a lawful way of avoiding the harm was open, or if some other course would have caused less harm than the offense did.19 The rule follows from the premise that necessity presents a choice between two evils. A third course that costs less than the violation means that violating the law was not the lesser evil, since the actor could have avoided both. The formulations accordingly ask whether there was a legally effective way to abate the danger, and the nuclear-plant court stated the requirement as the absence of any legal alternative that would be effective in abating the harm.20
Courts illustrate the element with a familiar run of cases. A statute forbade taking intoxicating liquor to church, and a defendant who took whiskey there for medicinal purposes lost his necessity defense because he could have stayed home or brought some other kind of medicine. A starving person is not justified in stealing from a grocery when food can be had at a soup kitchen, and a prisoner subjected to inhumane treatment is not justified in breaking out if conditions can be improved by other means.21 In each case the need was real, and what defeated the claim was a cheaper route to meeting it.
A change in the setting reverses the result. In an ordinary modern community it is not necessary to take another's food, because an appeal may be made to the public authorities. Passengers on a ship disabled on the high seas, with communications destroyed and provisions exhausted, who break open freight and eat the cargo as the only means of avoiding starvation are a different matter, and they would not be guilty of larceny.22 The hunger is the same in both settings. What changed is whether any lawful source of food was within reach.
The alternative must be one that would actually work. The formulations speak of a legally effective way of abating the danger, so a lawful option that is unavailable, or that would leave the danger in place, does not defeat the claim.23 This qualifier mirrors the second element. Just as the offense must reasonably be expected to work, the lawful route said to displace it must be one that would have worked.
The alternatives element has its sharpest application in political protest, where actors break the law to stop a government action they consider dangerous. The stated rule is that legal alternatives will rarely, if ever, be deemed exhausted when the harm complained of can be eased by political action.24 Judges are often reluctant even to instruct juries on necessity in these cases. In United States v. Schoon, thirty people occupied an IRS office in Tucson, splashed simulated blood on its walls and carpeting, and obstructed its operation to protest American involvement in El Salvador, and the Ninth Circuit affirmed the exclusion of the necessity defense as a matter of law.25 A lawful channel for changing the policy complained of is open to everyone in such cases, and while that channel remains open, the claim that the offense was the lesser evil has little to stand on.
Canadian law reaches a similar place on a different foundation. In Perka v. The Queen the Supreme Court of Canada treated necessity as an excuse resting on the idea that the act was normatively involuntary, and it limited the defense to imminent peril in which compliance with the law was demonstrably impossible, with no reasonable legal alternative, and in which the harm inflicted was less than the harm avoided.26 The working elements therefore look much like the American ones even though the theory underneath differs. Under the Code the theory is justification, so a lawful alternative defeats the claim because the offense was not the better choice. Under the Canadian approach it defeats the claim because the act was not the only realistic reaction open to the accused.
Clear and Imminent Danger
The first thing a court asks of a necessity claim is whether the actor faced an actual emergency. The usual formulation says the greater evil must be both clear and imminent, and each word carries weight.28 A clear harm is readily apparent and recognizable to reasonable persons and reasonably certain to occur, which excludes harms that are debatable, imagined, or speculative.29 An imminent harm is one that is, or reasonably appears to be, threatening to occur immediately, near at hand, and impending.30 Together these words separate a genuine crisis from general dissatisfaction with how things are going. A person who fears that a policy or a condition will eventually do damage has a worry about the future, and the defense is reserved for the person whose danger has already arrived.
The insistence on closeness follows from what time does to the actor's options. The defense rests on a forced choice between two evils, and a choice is forced only when nothing else will work.31 While the threatened harm is still some way off, there are usually ways of avoiding it that do not involve breaking the law: the rescue ship may appear, the storm may pass, or a lawful remedy may be obtained. The actor must therefore wait until the hope of a lawful escape is gone. The lifeboat cases show the rule at its starkest, because a castaway who can wait a while longer without starving has no justification for killing a companion to save himself.32 Acting early also puts the actor's forecast in place of the law's judgment. The violation is a certain harm today, while the feared disaster is a prediction that may never come true, and a rule that honored forecasts would let anyone who sincerely expects trouble decide privately when the law may be set aside. Imminence thus works as a stand-in for the absence of alternatives, which the next section takes up, and the two elements often fail together.
Two situations from the cases place the poles side by side. A merchant ship forced into a port closed to merchant vessels during a violent storm, to protect the vessel and those aboard, has not violated the embargo, because the danger is upon the ship and no lawful step will remove it.33 Protesters who trespassed at a nuclear power plant that had been shut down for two weeks claimed that low-level radiation and stored waste endangered others, and the appellate court held necessity unavailable as a matter of law, reasoning that even if such emissions were present they were not the kind of danger that counts as an emergency.34 What separates the two is timing and certainty. The storm will founder the ship within hours unless it reaches shelter, whereas the plant's hazards were diffuse, uncertain in their effects, and not poised to strike at any identifiable moment, which left time and room for lawful responses.
Imminence can defeat a claim even when the danger is real and severe, and the prison-escape cases show how. In State v. Green, a frail inmate who had been repeatedly sexually assaulted by other inmates escaped to avoid an attack threatened for that evening, and the Missouri court held the escape unjustifiable as a matter of law because he had several hours in which to consider and report the threats.35 The danger in Green was serious and had been specifically threatened. What was missing was closeness: hours of lawful opportunity remained, and reporting was one thing the inmate could do with them. The general treatment of escapes draws the same line. A prisoner confined in immediately life-threatening circumstances may be privileged to leave until the threat has subsided, but poor prison conditions in general will not support the defense.36 Courts that do accept necessity in prison-safety cases commonly add the condition that the prisoner surrender as soon as safety is reached, which confirms that the defense covers the emergency and not what follows it.37
The rancher's motive and the firebreak's usefulness are identical in both versions, so the only variable is how close the danger stands, and that is the single question this element asks. On an exam stem, the facts that decide it are usually dates, distances, and the time left on the clock, along with whether anyone with authority could still have been told.
The imminence requirement is a creation of the courts. Section 3.02 of the Model Penal Code contains no imminence element: if the jury finds that the harm avoided was greater than the harm caused and that the defendant believed the conduct necessary, the harm need not have been imminent.38 Students who list imminence as part of the Code's defense fall into a trap, because imminence is not in the text of § 3.02. A Code-based answer should say that the requirement is a judicial gloss and then ask whether the facts show a real emergency anyway. In practice that rarely rescues a defendant who acted early. A distant harm usually leaves lawful options open, which defeats the claim under the alternatives element, and a hasty forecast of disaster can run into the Code's provision on misjudging the necessity, which a later section covers.
Effective Conduct
The second requirement asks what the offense accomplishes against the danger that the first requirement identified. In the common formulation, the actor must have a reasonable expectation that the unlawful act will effectively abate the danger.41 Another statement of the same idea frames it as a causal connection: it must have been reasonable for the actor to believe that the illegal conduct would reduce the threatened harm.42 The Model Penal Code's text asks whether the actor believes the conduct necessary to avoid a harm.43 Courts give that word content by treating the lesser evil chosen as necessary only if it is an effective means of avoiding the greater one.44
The reason for the element comes from what the defense is. A necessity claim concedes that the actor committed the offense, so the law has already lost something, and it tolerates that loss only because the conduct bought the avoidance of a larger one. When the conduct leaves the danger exactly where it was, the cost has been paid and nothing has been received in return. There is then no lesser evil to prefer, only a violation. The same logic explains why law-breaking meant to draw attention to a danger, or to pressure other people into removing it, falls outside the defense: such conduct works, if it works at all, through the later decisions of others and never acts on the danger itself. Protesters in one case trespassed at a nuclear plant that had been shut down for two weeks, believing that radiation and stored waste endangered others. The appellate court held that their conduct neither ended nor reduced the danger they pointed to, and could not have done so. It called the trespass a deliberate and calculated choice rather than an act urgently needed to avoid a clear and imminent danger.45
The two versions differ in a single variable, which is whether the unlawful act reaches the danger. Imminence is satisfied in both, because the fire is an hour away either way, so effectiveness is the only element that separates the outcomes. Students lose this element when they let a worthy motive stand in for an effective act. A sincere wish to save the town shows that the actor meant well, and the element asks whether the act could actually help.
Because the element is phrased as an expectation, it is judged from the actor's position at the moment of acting and not by what happened afterward. The conduct must support a reasonable belief that it would avoid or alleviate the harm, and relief of part of the danger can therefore suffice.46 A firebreak that a wind shift later defeats still satisfies the element if building it was a reasonable bet when the farmer acted. A plan that could not reasonably have been expected to work does not satisfy it, even if luck produces a good result. An actor who carelessly assumes the act will help also meets the Code's separate rule on negligence or recklessness in appraising necessity, which a later section takes up.47
No Legal Alternative
The third requirement looks past the danger and the offense to the other things the actor could have done. Imminence showed that the harm had arrived, and effectiveness showed that the offense would work against it. This element asks whether anything better was within reach. An actor who violates the law is not justified when a third course was open that would have caused less harm than the violation, and that course may be a lawful one or an unlawful one that costs less.49 Courts state the limit as a requirement that no legal way of avoiding the greater evil can exist, and they add that the legal way must be one that would be effective in abating the harm.50
The name of the defense can mislead here. A choice of evils sounds like a menu, but the defense does not arise from a selection among several courses of action; it rests on a real emergency that leaves no solution short of a criminal act.51 The law forgives a violation only because the actor faced a forced choice between two harms, and a choice is forced only when every other route is closed. If a lawful or less harmful route stood open, the violation bought nothing that route could not have bought, so the law absorbed a loss for no gain. A second reason concerns incentives. Compliance with a criminal statute is often inconvenient, and a person who would rather skip the inconvenience has every reason to describe the unlawful route as the only one. A defense that reached every case in which law-breaking was the easy path would bind only those for whom obedience was cheap, whereas insisting on the lawful or less harmful route preserves the prohibition wherever compliance is realistically possible.
The classic examples share this shape. A statute forbade taking intoxicating liquor to church, and a defendant who carried whiskey there for medicinal purposes lost the necessity claim because the court pointed to the alternatives of staying home or bringing some other kind of medicine.52 A prisoner subjected to inhumane treatment by jailors is likewise not justified in breaking out of prison if conditions can be improved by other means.53 In each case the harm was real and the lawful route cost the actor something, but the lawful route avoided the harm, and that is the test.
The cleanest pair of examples differs in a single fact, which is whether any lawful route to the needed thing exists. A starving person who steals food from a grocery is not justified if food could have been had by going to a soup kitchen, and in the ordinary modern community an appeal to the public authorities makes taking another's food unnecessary.54 Place the same hunger on a ship disabled on the high seas, with its communications destroyed and its provisions exhausted. If those aboard break open boxes of cargo and eat the contents as the only means of saving themselves, they have not committed larceny, because nothing lawful remained to them.55 The hunger, the taking, and the owner's loss are identical in the two scenes. A soup kitchen exists in the first and nothing like it exists in the second, and that is the only fact that moves the answer.
The alternatives inquiry is strict, and the lifeboat shows how far it reaches. One castaway facing death by starvation cannot justifiably kill another to survive, with at most a question whether drawing lots beforehand would change the answer, and the case is weaker still if the castaway can wait a while longer without starving while rescue remains possible.56 Waiting is itself an alternative, which is why this element and the imminence requirement so often fail together: until the hope of a lawful escape is gone, the option of not acting remains open.
The element carries a built-in qualifier, which is that the alternative must be one that would actually work. A lawful option that is unavailable to the actor, or that would leave the danger in place, does not defeat the claim, because the question is whether the danger could be abated without the offense.57 This qualifier mirrors the effectiveness element: just as the offense must reasonably be expected to work, the lawful route said to displace it must be one that would have worked. Students lose points here when they treat a lawful option that is merely inconvenient as if it were no option at all, because mere convenience will not excuse the intentional deprivation of another's property.58 Whether the lawful route would have worked decides the matter; whether it would have been pleasant does not.
The danger, the offense, and the driver's motive are the same in both versions, so the only variable is whether a lawful option capable of abating the danger existed. On an exam stem, the facts that decide this element are usually the ones that say what help was reachable, how quickly, and whether the actor could have used it.
The alternatives element does its most visible work when people break the law to stop a government action they regard as dangerous. The governing statement is that a protester's legal alternatives will rarely, if ever, be deemed exhausted when the harm complained of can be eased by political action.59 In United States v. Schoon, thirty people entered an IRS office in Tucson, splashed simulated blood on the counters, walls, and carpeting, and obstructed the office's work to protest American involvement in El Salvador. The trial court found them motivated solely by humanitarian concerns and still barred the necessity defense as a matter of law, and the Ninth Circuit affirmed.60 The sincerity of the motive could not rescue the claim, because this element asks whether a lawful path remained, and voting, petitioning, and public advocacy stay open to anyone who objects to a policy. The harm in such cases flows from decisions that other people can still change, so the claim that law-breaking was the lesser evil has little to stand on while the political channel is open.
The same logic appears in neighboring doctrine and in foreign law. In defense of property, force may not be used when there is time to take other lawful measures such as calling the police, which keeps anyone from being physically harmed unless it is really required.61 Canadian law, which treats necessity as an excuse for conduct that is normatively involuntary, states the element as a requirement that compliance with the law be demonstrably impossible, with no reasonable legal alternative or legal way out.62 The theory differs, but the working question is the same. A lawful alternative defeats a justification claim because the offense was not the better choice, and it defeats an excuse claim because the act was not the only realistic reaction open to the accused.
Under the Model Penal Code the inquiry runs through the word necessary. Section 3.02(1) justifies conduct that the actor believes necessary to avoid a harm, and it contains no separate alternatives clause.63 Because the text speaks of belief, an actor who carelessly overlooks a lawful route is dealt with under § 3.02(2), which withdraws the justification when the actor was reckless or negligent in appraising the necessity for the conduct, in prosecutions for offenses that recklessness or negligence can establish.64 A later section develops that rule.