[38] WILKEY, Circuit Judge, dissenting:

Traditionally, claims of compulsion have been governed by strict standards; defendants have been required to raise such issues within the framework of the affirmative defenses of duress and necessity, and these defenses have been precisely defined, carefully hedged, and subject to strict proof. In a radical departure from this approach, the majority holds that even if evidence is insufficient as a matter of law to make out a duress or necessity defense, it must nevertheless be presented to the jury as bearing, in some nebulous and undefined way, on a defendant's "voluntariness" and "intent". Although my colleagues do not seem to realize it, this bouleversement effectively abolishes the defenses of duress and necessity, and the salutary standards embodied in them. In their stead it places vague, expanded, and essentially deterministic concepts of "intent" and "voluntariness," whose just application, no matter how well-intentioned, is obviously fraught with difficulties. I respectfully dissent.

I. THE FACTS

In the early morning hours of 26 August 1976, officers of the District of Columbia Detention Facility discovered that an escape had been effected through a low-level window in the Northeast-1 housing unit. A check of the unit revealed that three prisoners — Bailey, Cooley, and Walker — were among those escaped. Bailey, serving a sentence of 23 years at the time, had been convicted in 1973 of bank robbery and attempted escape. Walker, serving a 15-year sentence, had been convicted in 1973 of bank robbery. Cooley, doing 5 years, had been convicted in May 1976 of possession of an unregistered firearm.

Cooley, Bailey, and Walker were later apprehended in the District of Columbia by FBI agents on 27 September, 19 November, and 13 December 1976, respectively. On 23 November 1976 all three were indicted for escape from custody, a violation of 18 U.S.C. § 751(a), and prison breach, a violation of 22 D.C. Code, § 2601. On 8 March 1977 a jury trial commenced in the United States District Court for the District of Columbia before District Judge Oliver Gasch.

A. The Evidence

During trial the defendants did not dispute that they had escaped from jail, but they offered a great deal of evidence to establish their contention that the escape was justified in view of the desperate conditions there. Several witnesses were produced who had been incarcerated with defendants. Their testimony was offered to establish that frequent fires, assaultive and threatening conduct by corrections officers, and lack of adequate medical attention combined to make conditions so unbearable that defendants were compelled to flee for their own well-being. The basic issue on this appeal is whether or not, and in what manner, the jury should have been instructed to consider this evidence.

1. The Fires

Several prison inmates incarcerated with defendants in the Northeast-1 unit testified that fires were frequently set there. One inmate said that they occurred every day. Estimates varied on how long the fires were allowed to burn. One prisoner thought they lasted for an hour, while another testified that they lasted for an hour and a half and that the smoke remained all night. The same prisoner said that the guards "just let them burn until they burn out". However, there was no evidence of a fire on 26 August 1976, the day of the escape.

The Assistant Administrator of Operations at the facility, called to the stand by defendant Walker, contradicted these allegations. While he acknowledged that there had been small fires set in Northeast-1, he said that the inmates themselves had set the fires and that the officers on duty had promptly extinguished them. After the fires had been put out, exhaust fans were turned on to clear the smoke from the air, and medical attention was provided for anyone found to be in need of it. A corrections officer who had been stationed in Northeast-1 in the summer of 1976 recalled that fires were set in the unit every week, but that they lasted only five to seven minutes. He testified that, to his knowledge, no officer had ever permitted a fire to burn without acting to extinguish it.

2. Abusive Conduct by Guards

Testimony was also elicited that beatings were frequently administered to the inmates by corrections officers stationed in Northeast-1. One inmate claimed that they took place on a daily basis. Another inmates reported seeing a group of six or seven guards attack defendant Bailey with blackjacks and mace. This incident occurred, according to the inmate, more than three weeks before Bailey's escape. The inmate also claimed that he had seen a guard hit defendant Cooley in the face with a blackjack. He said that this conduct also occurred in early August 1976.

Threats by the guards were also the subject of a good deal of testimony. A prisoner testified that in August he had received a beating by one of the guards who then told him to deliver a message to defendant Bailey to the effect that the guards were going to kill him and beat him for testifying in a particular court case.

Once again the Assistant Administrator of Operations told a different story:

[W]e have not found any instance where either one of these young men were attacked by anyone. It has been the other way around in most cases.

He acknowledged that he had received reports of situations requiring the use of physical restraint by officers in the section. He described one incident in which "Mr. Bailey came back into the housing unit and made an unprovoked attack on another resident . . . [and] two officers pulled Mr. Bailey off the man, restrained him." A corrections officer testified that during the month of August there had been no beatings of inmates by any corrections officer.

3. Lack of Medical Attention

The allegation that deprivation of required medical care led to dangerous conditions at the jail was advanced principally by appellant Walker. Seeking to establish that he had an epileptic condition requiring frequent medication which was not adequately supplied, the defense called Dr. Samuel Bullock, Chief Medical Officer at the New Jail. However, Dr. Bullock's testimony established only that medication for the control of epileptic seizures had been prescribed for Walker. It had been prescribed at the infirmary on a trial basis since the only information available on appellant's "condition" was that contained in the medical history provided by Walker himself. When closely questioned about how often the medication had been received, Dr. Bullock said:

This is still a trial basis. We have no evidence that Mr. Walker had any — was even an epileptic.

The doctor further testified that the time period for receipt of medication on a trial basis is set up by the prescribing doctor in each case, and that the medication was prescribed in Walker's case merely as a precautionary measure.

Appellant Walker also called Dr. Aris Karas, staff psychiatrist at the United States Penitentiary in Leavenworth, Kansas. Dr. Karas had treated Walker at Leavenworth after he had complained of seizures coming in his sleep. Dr. Karas was very clear about whether epilepsy had actually been diagnosed in Mr. Walker's case:

I want to make, with Your Honor's permission, one point clear . . . I did not make a diagnosis of seizure disorder . . . [b]ecause nobody witnessed it from the staff or from the employees . . . It was only diagnosed convulsive disorder by history.

4. Defendant's Testimony

Defendant Cooley testified that on the morning of the escape, the correctional officers on duty opened the door to his cell, allowing him to leave. Once outside the cell, he encountered Bailey and Walker, who allegedly forced him to escape by threatening to kill him:

[L]ike I was out of my cell. They said, "You be gone or we're going to kill you."

I say, "Man, I ain't escaping." They say, "Man, you're out of your cell. We don't trust you. You're going out." Just like that.

Later, however, Cooley testified that he left the jail by himself and that he did not know whether Bailey and Walker left at all. When asked if he had ever made an attempt after leaving prison to notify anyone in authority about the escape, he said that he did not know anyone to call.

Defendant Bailey also testified about the circumstances leading up to his escape. As he was lying in bed in the early morning hours of 26 August, his door suddenly opened, and he then left the jail. When asked to supply the details of how he was able to leave, he claimed that he did not remember:

I don't even remember. It seems like I just blacked out . . . I have been trying to figure it out. I admit I left that jail. There is no doubt about it. I swear to God I left there . . . all I can say is I just don't remember. I just blacked out that morning.

Fortunately, Bailey's memory improved following luncheon recess when he was crossexamined by defendant Walker. After admitting that his prior testimony about blacking out was not truthful, he went on to give the details of the escape. As he was walking down the unit hall, he discovered that the window in Walker's cell had been removed; he entered the cell and climbed down some bed sheets already hanging from the window. After escaping he made no effort to surrender himself to the authorities.

Defendant Walker's testimony was quite brief. After complaining about conditions in the jail, he asserted that after his escape he had contacted the proper authorities. Specifically, he said that he "kept a constant rapport with the FBI" but admitted that he never surrendered himself to their custody. Walker also denied seeing Cooley the day of the escape.

B. The Instructions

At the close of the evidence the defendants requested the court to instruct the jury on the affirmative defense of duress — that is, to instruct the jury that it could find that the defendants had been compelled to escape by conditions at the jail and that such escape was justified. In a conference on the proposed instructions, however, the court ruled that the affirmative defense of duress was not available to defendants, since none of them had surrendered to authorities after their escape. The court said:

Had these men notified the authorities or the public defender in an effort to surrender under conditions that might have been arranged by the public defender, then I would have permitted the duress and condition argument. In fact, I have here an instruction, which I drew up very carefully, with that in mind, but I realized that at the end of which I was calling upon the jury to make a finding that they couldn't make, that is to say that these men had turned themselves in, and that is a prerequisite to the assertion of the defense of duress or coercion. So, for that reason I decided that I had to assume the responsibility myself.

The Court therefore rejected the defendants' proposed instruction and instructed the jury as follows:

You are instructed as a matter of law that conditions at the District of Columbia Jail or the new detention center, no matter how burdensome or restrictive an individual inmate may find them to be, are not a defense to the charges in this case, nor justification for the commission of the offense of escape.

If a particular inmate or group of inmates feel that they have been treated unfairly, they may seek correction of those conditions in the court system, but they are not entitled to commit the offense of escape or seek to take the law into their hands.

Now, the court permitted the defendants to introduce this evidence and to seek to show that following their escape they turned themselves in, for if one, after escaping, has turned himself in, then the defense of coercion or duress may be brought to the attention of the jury as a defense, but only if a defendant turns himself in.

Now, there are recognized procedures for this to be done, and requisite protections insured by such action. As the court heard the evidence, that was not done in this case. So the court felt that it was incumbent upon the court to assume responsibility for this aspect of the case, and to take it out of the case in effect. So, you are not to consider the defense of duress or coercion for the reasons stated. The defendants did not turn themselves in.

Thus, the judge did not foreclose jury consideration of this evidence altogether; he simply ruled out the duress defense.

In addition, defendant Bailey urged the court to instruct the jury that escape from custody was a "specific intent" crime, and that the Government was required to prove that defendants specifically intended to avoid confinement permanently at the time they escaped from jail. The court rejected this proposed instruction and instead instructed the jury that a defendant "escapes" if he "without authorization did absent himself from his place of confinement" and that this offense was a "general intent crime". The court further instructed the jury on the precise meaning of "general intent".

C. The Verdict

On 14 March 1977 the jury found each defendant guilty of escape from custody. Pursuant to the court's instructions, the alternate charge of prison breach was not considered by the jury after they reached a verdict on the escape count. Each defendant was sentenced to a term of five years in prison, to be served consecutively to any sentence already imposed. These appeals followed.

II. THE ISSUES

The basic issue raised in these appeals is whether, and in what manner, the jury should have been instructed to consider defendants' evidence regarding fires, assaults by prison guards, and inadequate medical attention. The defendants contend that the jury should have been instructed on the affirmative defense of duress and permitted to consider the evidence in connection with that defense. However, the majority holds that, regardless of whether the evidence was sufficient as a matter of law to make out an affirmative defense of duress, it should have been submitted to the jury as relevant to the "intent" and "voluntariness" elements of the crime of escape.

Thus, in order to determine whether the trial court erred in instructing the jury as it did, three questions must be addressed:

1. Was the evidence adduced by defendants sufficient to provide a basis for an instruction on the defense of duress?

2. Apart from the availability of the duress defense, should the evidence have been expressly submitted to the jury as bearing on the "voluntariness" of the defendants' actions?

3. Should the evidence have been expressly submitted to the jury as bearing on the "intent" element of the crime of escape?

III. THE DEFENDANTS' DURESS THEORY

Defendants argue that the trial court committed reversible error by rejecting the proffered instruction on the defense of duress and by refusing to permit the jury to consider, in connection with such a defense, the evidence regarding fires, assaults by prison guards, and inadequate medical care.

While it is generally true that a defendant is entitled to an instruction on his theory of the case when it is properly requested by counsel, it is well settled that an instruction should not be given if it lacks evidentiary support. In a case in which evidence has been presented in an attempt to raise an affirmative defense, the trial court has the duty of determining whether the issue is sufficiently supported by the evidence to place it before the jury. When the evidence fails to establish the defense, there is no factual issue to be decided by the jury, and the instruction is properly refused by the trial court as a matter of law.

The evidence here failed on at least two grounds, as a matter of law, to establish the defense. First, although the defendants offered much evidence describing conditions which allegedly compelled them to escape, it is clear that, by all previous standards, the requisite degree of compulsion was not shown. Second, the evidence failed to show that any of the defendants turned themselves in to authorities after escaping those conditions. The trial court made a specific finding that lack of evidence on this point placed the duress issue in such a factual posture that it could not properly be decided by the jury as a matter of law. It therefore refused to submit the defense to the jury.

After a consideration of the duress defense in general, I turn first to the requirement of a prompt return to custody, and then to the requirement of immediate overpowering compulsion to establish the duress defense. Not one, but both, requisites are undeniably missing in the case at bar.

A. The Duress Defense in General

Where the evidence as to the acts performed by the defendant is largely undisputed — as the departure from the jail of each defendant here — there are essentially two kinds of defenses in the criminal law. One type of defense negatives guilt by cancelling out the existence of some required element of the crime — either the actus reus or the "intent" element. For example, mistake of fact, intoxication, and insanity are defenses designed to establish that the defendant did not have the "intent" element required for the crime charged.

The second kind of defense operates on an entirely different principle. It does not negative any element of the crime but instead goes to show some circumstance of excuse or justification which is deemed a bar to the imposition of criminal liability; that is, it goes to the matter of criminal responsibility.

Traditionally, claims of duress, compulsion, and necessity are treated as defenses of the latter type. Under the classic "duress" defense, a defendant will be excused from committing an otherwise criminal act if he was compelled to perform the act by the unlawful threats of another person. The defense has three elements. First, in order to excuse the commission of a criminal act, the coercion must be present, imminent, and impending and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury. Second, there must be no opportunity to avoid the threatened harm. And finally, the defense may never be raised to justify the taking of innocent life.

The theoretical basis for the duress defense is excuse; though the act is considered wrongful, the actor is not held responsible because he has taken the best possible course of action in a situation in which his "free will" has been severely curtailed but not entirely eliminated. Thus, the rationale for the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Rather, it is that, although a defendant has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is excused or justified because he has thereby avoided a harm of greater magnitude. Thus, the defense of duress rests on the social utility of a defendant's actions when faced with a choice of evils. For example, if A, armed with a gun, threatens B with immediate death unless B steals C's car, B is not guilty of larceny because it is better for society as a whole that B do the lesser harm (commit the larceny) than acquiesce in the greater harm (his own loss of life). On the other hand, if A threatens B with immediate death unless B kills C, B will not be excused of homicide if he kills C, since it is not necessarily better for society that B kill C than that A kill B.

The same considerations apply to the defense of necessity. The pressure of natural physical forces often confronts a person in an emergency with a choice between two evils: either the person may violate the literal terms of the criminal law and thus produce a harmful result, or he may comply with those terms and thus produce a greater or equal amount of harm. For reasons of social policy, if the harm which will result from compliance with the law is greater than that which will result from violation of it, he is justified in violating it. Under such circumstances, he is said to have the defense of necessity. The rationale of the necessity defense is not that the person, when faced with the pressure of circumstances of nature, lacks the mental state which the crime requires. Rather, it is that the public interest requires the selection of the lesser of two evils.

Necessity is usually distinguishable from duress because the emergency situation compelling a choice between evils is caused by forces of nature rather than coercion by other human beings. Some commentators have suggested that this is the only real difference between the defenses. Others claim that there are further conceptual differences between the two. Whether or not they are actually distinct, they have been hopelessly commingled in case law. The result has been the development of a hybrid defense — a "duress-necessity" defense — which retains the basic features of the duress defense, but which encompasses compulsion arising from natural forces in addition to coercion by other persons. For convenience, the term "duress defense" will be used hereafter in referring to both the classic duress defense and the hybrid duress-necessity defense.

B. The Return to Custody Requirement in Escape Cases

In escape cases the duress defense has posed special problems for the courts. Recognizing that the defense carries within itself the germ of potential disorder even in ordinary cases, courts have been concerned that its casual application in escape cases could subvert prison discipline and endanger corrections personnel. Moreover, courts have recognized that, in escape cases more than in other types of cases, the defense is particularly susceptible to manipulation by the shrew and unscrupulous. There already exist among inmates powerful incentives to escape; the prison population is generally composed of recalcitrant individuals; the circumstances of prison life are such that at least a colorable, if not credible, claim of duress or necessity can be raised with respect to virtually every escape, and disproof of such claims can be quite difficult. Finally, in weighing the interests of the prison inmate against those of society as a whole, the courts have realized that society has an especially compelling interest in insisting that prisoners serve their full and uninterrupted sentences, since it is precisely upon the ineluctability of such punishment that the effectiveness of the penal system and, in turn, the safety of each citizen depends.

In view of these considerations, the duress defense has been more carefully hedged and subject to stricter proof in escape cases than in other types of cases. To prevent either before-the-fact fabrication by groups of inmates or after-the-fact construction to avoid punishment, the courts have set down strict standards which must be met before the defense is available.

The most comprehensive explication of these standards is provided in People v. Lovercamp, an escape case in which the California Court of Appeals considered the availability of the duress defense. There, two defendants had been threatened repeatedly by a group of inmates who sought to force them to perform lesbian acts. When their complaints to the prison authorities elicited no response and they were again confronted by a threatening group that promised to return to gang rape them, they fled. They were immediately apprehended a few yards from the prison. When the defense of duress was raised at trial, the court refused to instruct the jury on it. In holding that the defense was available to the defendants, the Court of Appeals set forth five conditions that must be established before the defense could be submitted to the jury:

. . . [W]e hold that the proper rule is that a limited defense of necessity is available if the following conditions exist: (1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;

(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;

(3) There is no time or opportunity to resort to the courts;

(4) There is no evidence of force or violence used towards prison personnel or other "innocent" persons in the escape; and

(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.

The first of these requirements corresponds to the rule applicable to duress cases in general that the compulsion must be present, imminent and impending and of such a nature as to induce a well-grounded apprehension of immediate death or serious bodily injury. If the danger threatened is not immediate, the defense is not available. The defense is reserved for back-to-the-wall situations. This requirement has been adopted by every court that has considered the availability of the defense in escape cases. Accordingly, the courts have uniformly agreed that prison conditions alone, no matter how intolerable and inhumane, do not justify or excuse escape.

The second and third requirements set forth in Lovercamp reflect the general rule that the defendant must have exhausted all reasonable means of avoiding the threatened harm. Thus, an escapee's claims of compulsion must be rejected if he could have avoided danger by resorting to administrative remedies within the prison, or by seeking judicial intervention. Once again, these requirements have been generally adopted by the courts.

The fourth requirement enunciated in Lovercamp is a stricter version of the general rule that duress never excuses the taking of innocent life. The added strictures are a response to the fact that recognition of the defense in escape cases increases the risk of physical injury to corrections personnel as well as to other inmates. Most duress-escape cases that have reached the courts, however, have involved non-violent escapes, and, consequently, few courts have explicitly adopted this requirement, but it has been recognized by the Seventh Circuit.

The fifth requirement of the duress defense set forth in Lovercamp is obviously of decisive significance in this case. It requires an escapee to report immediately to proper authorities once he has attained a position of safety. In the Lovercamp case itself the defendants had established all elements of the duress defense but this final "return" requirement; however, the court found the issue incapable of resolution since they had been apprehended immediately on their departure. Since the Lovercamp decision, this "return" requirement has found increasingly wide support among courts considering duress-escape cases, including 1977 decisions in the Ninth Circuit and the District of Columbia Court of Appeals.

There are essentially two reasons for insisting on return as a condition precedent to accepting a defense of duress. The first is a policy reason. The "return" requirement is designed to mitigate some of the special problems attending application of the duress defense in escape cases. It is meant to narrow application of the defense to those who are in genuine fear of death or serious bodily harm because they otherwise have nothing to gain by escaping if they must surrender themselves immediately. In this regard the Lovercamp court observed:

Thus, the defense becomes meaningless to one who would use it as an excuse to depart from lawful custody and thereafter go his merry way relieved of any responsibility for his unseemly departure. A prisoner cannot escape from a threat of death, homosexual attack or other significant bodily injury and live the rest of his life with an ironclad defense to an escape charge.

The second, and most important, reason for conditioning the availability of the duress defense on an escapee's return to custody relates to the nature of the crime of escape itself. Under many statutes, escape has been held to be a "continuing" crime; that is, the offense is not complete when the escapee initially departs from custody but continues as long as he remains at large. Thus, under these statutes, even though a prisoner may have originally been justified in departing from custody, if he thereafter remains at large, his continued unexcused absence from custody constitutes the crime of escape. Accordingly, if a defendant presents evidence justifying only his initial departure, such evidence would — as a matter of law — be an insufficient defense, since it would fail to excuse his subsequent continued absence.

The federal escape statute, 18 U.S.C. § 751, is unquestionably a statute of this type. The courts of appeals have consistently held this to be so. It is no surprise, then, that in the recent Ninth Circuit case of United States v. Michelson, the "return" requirement was expressly held to be a precondition to the availability of the duress defense in federal escape cases.

In Michelson, the defendant-escapee was arrested and charged with escape two years after his unauthorized departure from a U.S. penitentiary in which he had been serving a 22-year sentence for armed robbery. At trial the defendant attempted to raise a duress defense, presenting evidence that he had had a violent fight with another inmate; that as a result of the fight, he was hospitalized for several days, while the other inmate was placed in solitary confinement; that the other inmate threatened to kill him; and that the defendant escaped the same day the other inmate was released from solitary confinement. The trial court refused to instruct the jury on the duress defense. Defendant challenged his conviction on the ground that the trial court erred in not granting the instruction. The Ninth Circuit affirmed the trial court, specifically holding that escape under 18 U.S.C. § 751 is a continuing offense and that an escapee must turn himself in to proper authorities as a prerequisite to the availability of the duress defense:

Although duress may excuse the inmate's departure, it does not absolve his continued absence from custody. In other words, while coercion may shield the escapee from the imposition of additional punishment, it does not commute the sentence previously imposed. Thus, while the Court recognizes the availability of the duress defense to the crime of escape under proper circumstances, the Court also recognizes that duress exonerates only the departure from custody, and not the continued absence.

For this reason, an escape will not be excused by reason of duress if the escapee fails to submit to proper authorities immediately after attaining a position of safety. The inmate's failure to submit to proper authorities following the allegedly coerced escape amounts to an unexcused commission of the crime of escape. Therefore, when an escapee fails to submit to proper authorities, the asserted duress defense must be rejected because as a matter of law it does not negate the continued absence from custody.

Similarly, prior cases interpreting the escape statute, Section 751(a), have found that continued absence from custody constitutes the crime of escape.

. . . . .

In this case, we need not and do not decide whether defendant acted out of duress in escaping. His failure to report to the proper authorities during his nearly two years of freedom following his escape from McNeil Island Penitentiary precludes jury consideration of the asserted duress defense. Whatever the merits of the asserted duress defense, it did not license continued absence from custody.

. . . . .

We conclude that the trial court did not err in refusing to give the requested duress instruction because of defendant's failure to submit to custody after attaining a position of safety.

State courts considering the availability of the duress defense in escape cases have also deemed the Lovercamp requirements, including the "return" requirement, a correct statement of the law. The Lovercamp standards have been termed "minimum conditions" which must be satisfied before the duress defense is available, and it has been held that the defense may be considered by the trier of fact only "where there is a prima facie showing of evidence to support each and every one of the . . elements."

In Stewart v. United States, a District of Columbia case, the defense of duress was raised by an inmate of a halfway house who failed to return from the community at the required time and was prosecuted for escape under 22 D.C. Code § 2601. The defendant claimed that he had been abducted while returning to the halfway house and shot while fleeing his abductors. He feared to return to the house where he would be a "sitting duck" for his assailants. When he telephoned the halfway house, he was told to turn himself in, but he waited a month and a half before doing so. In affirming the trial court's ruling that such facts did not make out a valid defense, the District of Columbia Court of Appeals held that, when such a defense is raised

the defendant must establish that he immediately returned to custody once the threat of harm was no longer imminent. A failure to surrender oneself after the threat has dissipated must be viewed as an escape accompanied by the intent to elude lawful custody. See United States v. Chapman, 455 F.2d 746 (5th Cir. 1972).

. . . Even assuming that initially he acted out of fear of immediate death or serious bodily injury, the proffer failed to establish that the threat of injury remained imminent and that his fear of harm was reasonable during that time period, or that he immediately returned to custody once the alleged threat had dissipated.

In the present case the trial court's ruling that the defense raised by defendants had not been established as a matter of law is amply supported by the record. No evidence whatsoever was adduced to show that defendants turned themselves in after they had escaped the danger they alleged existed. Defendants Bailey and Cooley admitted that they did not even attempt to call the authorities after escape, and though defendant Walker claimed a "constant rapport with the FBI," there was no evidence that he ever attempted to arrange surrender. In short, the defense evidence was completely lacking as to the essential "return" requirement, and the trial court properly excluded the matter from the jury's consideration.

Defendants argue that once a prisoner has escaped from danger, he should not be expected to return to the source of that danger and place himself again in harm's way. Presumably defendants believe that an escapee is entitled henceforth to go his merry way with a permanent and ironclad defense. This position completely ignores the rule that the duress defense is available only when there is no reasonable alternative to violation of the law. Once a prisoner escapes the immediate threat of death or serious bodily injury with which he was allegedly confronted in prison and is at large, he has open to him virtually an infinite variety of reasonable alternative means by which he can avoid these threats in the future without further violating the law by remaining at large. He can turn, for example, to the community, to public agencies, to public or private legal services, to politicians, to church groups or other private organizations that are in a position to take the action necessary to protect him from untoward danger once he returns to custody. The law imposes a duty on the escapee, once free, to pursue these legitimate means of redress, rather than to pursue self-help through continued criminality.

An escapee's generalized apprehensions that legal means of self-protection may not be as efficacious as illegal means do not excuse or justify his continued absence from custody. Each moment he remains at large he is actively breaking the law. To excuse or justify his continued absence on the basis of duress or compulsion, then, he must adduce some evidence that the dangers which originally impelled his escape remain imminent and that there is no alternative means for him to protect himself from these dangers except by remaining at large. Because of the various opportunities which fugitives have for redress, it is almost impossible to conceive of circumstances under which an escapee could make a showing that his continued absence was justified. Be that as it may, however, the fact is that defendants in the instant case have not even attempted to justify their continued absence. Under these circumstances, the duress defense is simply not available to them.

The majority acknowledges that the crime of escape under 18 U.S.C. § 751 is a "continuing" offense. It further acknowledges that this feature of the crime has given rise to the substantive rule of law that duress is available as a defense in escape cases only where an escapee has adduced evidence either (1) that he immediately surrendered to proper authorities upon attaining a position of safety from the immediate threat, or (2) that his continued absence from custody was justified because (a) the dangers that originally impelled his escape remained imminent and (b) there were no alternative means for him to protect himself from these dangers except by remaining at large. Having acknowledged these two points, the majority cannot logically avoid the conclusion — the inexorable conclusion — that defendants in this case were not entitled, as a matter of law, to a duress instruction.

In the first place, defendants admit that they did not return to custody; there is no factual dispute on this. In the second place, defendants have adduced no evidence whatever justifying their continued absence from custody. It is fundamental that an instruction should not be given if it lacks evidentiary support; when evidence fails to establish the defense, there is no factual issue to be decided by the jury, and the instruction is properly refused by the trial court as a matter of law. Clearly, the trial court in this case properly withheld the duress instruction.

The majority labors to avoid this conclusion by resorting to a patently frivolous argument concerning the scope of the indictment and instructions in this case. It dissects the crime of escape into two separate and distinct activities: first, unauthorized departure from custody, and, second, unauthorized continued absence from custody. It then treats these "separate" activities as "separate" offenses, contending that the defendants were not properly indicted for the distinct crime of continued absence from custody because the indictment refers to "flee[ing] and escap[ing]" "[o]n or about August 26, 1976" and that the trial court "emphasized the notion that the offense took place when [defendants] left the jail on August 26." Concluding that defendants "were being tried only for leaving the jail on August 26, and not for failing to return at some later date," the majority asserts that the trial court was precluded from relying on the continuing nature of the offense in refusing to grant a duress instruction.

The fatal flaw in the majority's argument is that it treats the initial-departure aspect of escape and the continued-absence aspect of escape as two separate acts and two distinct offenses. They are not; they are necessary aspects of one act — one single criminal transaction. As the trial court instructed the jury in this case, escape consists in "absenting" oneself from custody. Obviously, in order to absent oneself from custody, one must depart from custody. Similarly, one cannot have "departed" from custody without having actually remained absent from custody for an appreciable period. The act of absenting oneself from custody necessarily entails not only the initial severance of control but also the maintenance of that status for an appreciable period of time, whether that be one minute or one hour or one year.

The fact that the trial court did not provide the jury with a full explication of the "continuing offense" aspect of the crime of escape is really without significance in this case and certainly is not relevant to the majority's argument. The majority's complaint is that the trial court precluded jury consideration of a duress defense and held as a matter of law that the defense was unavailable. However, the majority concedes that if the court had instructed the jury fully as to the "continuing offense" aspect of escape, then it could properly have held as a matter of law that the duress defense was unavailable and thereby have precluded jury consideration of the defense. Why should the result be different simply because in one case the trial court did not fully illuminate the "continuing offense" aspect of the offense for the jury and in the other case it did? The jury is not making the decision on the availability of the defense in either case; the court is making the decision on both cases as a matter of law. The amount of information conveyed to the jury is therefore irrelevant to the propriety of the trial court's legal decision.

The fact that the trial court in this case did not fully explain the "continuing offense" nature of escape had only one real practical effect. It deprived the jury of insights that would have made it easier to convict defendants. In fact, if the jury had been fully instructed on the continuing offense aspect of escape, it would have been irrational for it to have acquitted defendants, in light of the fact that defendants admitted remaining at large and failed to adduce any evidence to justify their continued absence. In other words, the trial courts' alleged omission was not only unprejudicial to defendants, but in fact affirmatively benefited them.

C. The Immediate Compulsion Requirement in Escape Cases

The trial court was justified in refusing to instruct the jury on the duress defense for still another reason. The majority does not, and cannot, deny the validity of the traditional requirements that a duress defense must be predicated on threat of immediate death or serious bodily harm and a showing that there was no opportunity to avoid the threatened harm — in other words, that the defense is reserved for back-to-the-wall situations. The evidence presented by defendants plainly did not meet these requirements.

Cooley was the only one of the defendants who actually claimed that he had been compelled to escape by any form of immediate danger. However, even he later repudiated this claim and testified that he had indeed not been forced to leave the prison by Walker and Bailey. The conditions described by other defense witnesses could hardly be found to establish the seriousness, immediacy, and imminence of danger required to make out duress. Walker's complaint that he was not being adequately treated for self-diagnosed epilepsy, even though appropriate drugs had been prescribed; the defendants' general complaint that there had been, in the past, intermittent fires in the housing unit, even though there was no evidence that defendants' immediate safety had ever been endangered by these fires; and the defendants' general complaint that they had been subject to past "assaults" by prison guards, even though there was no evidence of an "assault" or even the utterance of a "threat" within approximately three weeks of the escape, simply do not present the back-to-the-wall situation necessary to make out a duress defense.

Similar, and even more compelling, complaints have been repeatedly rejected by the courts in scores of cases. Indeed, I invite the majority to cite one case, federal or state, in which claims of this type have been deemed sufficient to raise a duress defense. The majority is unable to do so because the defendants' complaints clearly fall far short of the severe and immediate danger necessary to warrant a duress instruction. The trial court was plainly correct in refusing to instruct the jury on defendants' theory of the case.

IV. THE MAJORITY'S "VOLUNTARINESS" THEORY

The majority suggests that, regardless of whether the evidence presented by defendants was sufficient as a matter of law to make out an affirmative defense of duress, it should have been submitted to the jury as relevant to the "voluntariness" of defendants' actions. Finding that "voluntariness" is a necessary "element" of the crime of escape, the majority concludes that the trial court erred in precluding jury consideration of defendants' evidence of medical inattention, assaults, and fires.

The term "voluntary" is frequently used in two different ways in the criminal law.

In one sense, the term "voluntary" has been used as meaning "volitionally". According to this usage, a "voluntary" act means only that an act is the product of the actor's will, regardless of whether that will is freely exercised. An act is "involuntary", then, where the actor's body is moved by overmastering physical force ( vis absoluta) or where the actor's movements are a reflex or convulsion, or are performed during unconsciousness, sleep, or hypnosis. This type of "voluntariness", more properly called "volition", is treated under the rubric of actus reus, the physical element of crime. If a defendant's movements are not volitional, if they are involuntary, then they are not "acts" in the proper sense, and hence there is no actus reus. Thus, for example, if a prisoner has an epileptic fit during which he falls over the prison wall, or if he sleepwalks out the prison gate, or if he is carried out physically by other prisoners, then the actus reus of the crime of escape does not exist because the prisoner has not performed a volitional act. So, when the term "voluntary" is used as meaning "volitional", acts performed under duress are considered "voluntary" acts; even though they are not the products of the free will, they are nevertheless products of the will. Of course, the majority does not use the word "voluntary" in this sense.

The second way in which the term "voluntary" is used refers to exercise of the free will, rather than mere exercise of the will. In this context, an act is said to be "involuntary" where the will of an actor is subject to such coercive pressure ( vis compulsiva) that it is overborne, and the actor — "against his own will" — chooses to violate the law rather than obey it. Thus, for example, if a prisoner is forced at gunpoint to walk out of prison "against his own will", then he has not acted "voluntarily". It is in this "free will" sense that the majority uses the term "voluntary," and it is in this sense that the term will be used in this section.

The majority is unquestionably correct when it says that "voluntariness" — free will — is a necessary element in the crime of escape, for it is a necessary element in all true crimes. It is a basic precept in Anglo-American law that the exercise of "free" will is essential to criminal responsibility. A person who has been deprived of "free" will and has been compelled to act against his will should not be held responsible and punished for his actions.

With respect to the present case, the majority's position is simply this: the defendants' evidence regarding fires, assaults, and medical care have some bearing on whether the defendants were exercising "free will" when they departed from prison; therefore, the evidence should have been submitted to the jury on the issue of "voluntariness", even though it did not make out a defense of duress.

This position is utterly untenable. It is black-letter law that, in cases such as this, issues of "voluntariness" are to be raised through the affirmative defense of duress. When a defendant asserts that he was deprived of free will and did not act "voluntarily" because he was compelled to violate the law either by force of circumstances or by the threats of other persons, then he must raise these matters within the framework of the duress defense. This is why I stated at the outset that my colleagues did not seem to realize the radical revolution they were writing into the law — a bouleversement that in reality abolishes the salutary standards that heretofore have governed the defenses of duress and necessity.

The doctrine of duress has been fashioned precisely for dealing with the issue of free will. As Professor Burdick writes in his treatise on criminal law:

Since every crime requires a willing or voluntary mind, it may be a defense to a criminal charge that the criminal act was not committed voluntarily but was the result of coercion, compulsion, or necessity. As said by Lord Mansfield: "Whenever necessity forces a man to do an illegal act, [whatever] forces him to do it, justifies him, because no man can be guilty of a crime without the will and intention of the mind." Blackstone has also said: "A species of defect of will is that arising from compulsion and inevitable necessity. These are a constraint upon the will whereby a man is urged to do that which his judgment disapproves, and which it is to be presumed, his will (if left to itself) would reject. As punishments are therefore only inflicted for the abuse of that free will which God has given to man, it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion".

. . . . .

From the general statements of Lord Mansfield and Judge Blackstone quoted above, it might be presumed that compulsion or necessity is a valid defense in all cases, but the doctrine is hedged about with certain positive rules of law, and is recognized only in clear cases. In some instances it is not recognized at all. . . .

In order to excuse a criminal act on the ground of compulsion or necessity, one must have acted under apprehension of imminent and impending death, or of serious and immediate bodily harm.

Other commentators observe:

Legal responsibility, be it civil or criminal, implies freedom. To make a contract in law requires the free acts of the participants, and the doing of a socially reprehensible act is legally excusable, where the actor was not a free agent. We find, therefore, that where that most precious of all commodities, "free will," is stolen, the law has hastened to erect its doctrine of duress to mark the larceny.

Criminal duress has, at its heart, the principle of freedom. The criminal law, wisely or not, has postulated for itself a world of free-will-ed agents and has fixed responsibility for action upon most classes of actors, except those who have "acted under compulsion."

The merits of such an attitude are clear. If a person commits an act under compulsion, responsibility for the act cannot be ascribed to him since, in effect, it was not his own desire, or motivation, or will, which led to the act. Punishment of the actor would be misdirected and futile since it would deter neither him nor others, should it be the case that all were equally compelled to do acts outside of their own control. Thus, the law has reasoned that where it can be shown that a man acted under a compulsion which deprived him of his "free will," such an individual would not be held responsible for his act. This, in essence, is the thinking that lies behind the formulation of the criminal duress doctrine.

. . . . .

If "duress" was to excuse, it had to be shown that the compulsion was in its nature such as would induce a well grounded apprehension of death or serious bodily harm. The compulsion had to arise without the negligence or fault of the person claiming aid from the doctrine, and the compulsion had to be instant, present, imminent and impending. The force complained of by the victim must have lasted during the whole time required for the performance of the criminal act. The "duressed" had to show resistance to the point of death (or at least to the instant of serious and grievous bodily harm) before he capitulated and acted. The force had to be exerted, if not on the victim, then on someone close to the victim, such as a wife or child. The "duressed" had to avail himself of any opportunity to avoid or escape from the force. . . .

There was good reason for the profusion of standards. The doctrine held within it the germs of potential disorder. The business of excusing individuals from crimes which, in the last analysis, they had committed bodily, was a difficult and dangerous affair. Who could see or wisely guess at the presence of a will which freely motivated the body in that dreadful moment of criminal action? Inference, not observation, was the species of proof, and inferences, it was thought, required the aid of standards. If the doctrine was not to be the plaything of the shrewd and unscrupulous (and were not those suspected of crimes already questionable in that respect?) it had to be well hedged and strict of proof.

Thus, the positive law that defines where free will ends and exculpating compulsion begins is embodied in the duress doctrine and no where else. The rule of law embodied in the doctrine is this: A defendant's actions are deemed voluntary, even though he has been subject to compulsion, unless the compulsion is such as to induce a well-grounded apprehension of immediate and avoidable death or serious bodily harm. If a defendant fails to adduce evidence of such duress, then as a matter of law he has acted voluntarily. Only when he has adduced such evidence can there be a reasonable doubt as to his voluntariness. In short, the issue of duress by definition determines the issue of voluntariness: if legally sufficient duress exists, then the defendant may be acting involuntarily; if legally sufficient duress does not exist, then the defendant is deemed to be acting voluntarily as a matter of law.

My colleagues' effort to create an entirely new and separate exculpatory doctrine of "involuntariness" runs afoul of legal doctrine established for centuries and embodied in literally thousands of judicial decisions. In the instant case, the defendants failed to present evidence of legally sufficient duress, and consequently they must be deemed to have been acting voluntarily. It is clear, then, that the majority's holding that defendants' evidence should have been considered as bearing on defendants' "voluntariness," even though it may not have been sufficient to make out a duress defense, lacks all legal logic, since the issue of voluntariness has already been determined through application of the duress doctrine.

The practical effect of the majority's decision is to abolish the strict standards governing claims of "involuntariness" that were formerly embodied in the affirmative defense of duress and to replace them with a nebulous and essentially deterministic view of "voluntariness," or free will. What really takes shape is a "totality of the circumstances" test similar to that used in Fourth and Fifth Amendment cases concerning voluntariness. Defendant would be able to adduce any and all evidence that may have some kind of bearing on his motivation. Evidence as to every conceivable unpleasantry that may exist in the prison may be thrown into the hodge-podge. Moreover, presumably evidence concerning motivation stemming from conditions external to the prison could be adduced by the defendant, i.e., that he was driven by a desire to see his dying mother. Confronted with this unstructured evidence the jury would then be expected to find whether from all the circumstances there is any reasonable doubt as to whether the defendant acted voluntarily. This deterministic approach is a prescription for chaos and has wisely been rejected in the criminal law for hundreds of years.

V. THE MAJORITY'S "INTENT" THEORY

The majority contends that the trial court did not properly instruct the jury on the "intent" element required under 18 U.S.C. § 751 and that defendants' evidence regarding fires, assaults, and medical care was relevant to the "intent" element actually required by that statute. Therefore, it holds that the trial court erred in failing properly to submit the evidence to the jury on the issue of intent. In order to determine whether the trial court acted properly in this respect, it is necessary to determine first, the precise nature of the "intent" element required under 18 U.S.C. § 751, and, second, whether defendants' evidence was actually relevant to this element.

A. Escape at Common Law

At common law the crime of escape is simply the unauthorized departure of a prisoner from legal custody before his lawful discharge. According to Wharton:

An escape is committed whenever by any unlawful means a criminal in lawful custody voluntarily leaves and gains his liberty before he is delivered in the due course of the law.

The actus reus of the offense is the mere unauthorized physical departure from the place of confinement. The mens rea of the crime is a general one. No special state of mind is required for guilt other than the intent to go beyond permitted limits. The offense has been referred to as a "general intent" crime. In this context, intent means simply that the actor has the purpose of doing the very act he is performing, that is, that he is not acting inadvertently or accidently, and that he is aware of the circumstances that make his act wrongful.

This "general intent" requirement can be illustrated as follows: If a prisoner mistakenly believes he has been authorized to leave prison and acts on this belief, he has not committed the crime of escape because he has not intended to leave the prison without authority. Similarly, if a prisoner is taking his evening constitutional in the prison exercise yard and, in the dark, accidentally walks out a prison gate, he has not formed the requisite intent for the offense. However, if a prisoner knows that he has no authority to leave prison and, whatever his motivation, still departs prison, with the purpose of departing, he has acted with the requisite intent. Thus, for example, if a prisoner leaves prison to visit his dying mother with the intent to return to prison, he has nevertheless "intended" to depart prison and he is therefore guilty of escape; it was still his purpose to avoid confinement, if only for a brief time. Similarly, if a prisoner is forced to leave prison at gunpoint, his "intent" is not negated. It was still his purpose to depart from custody; he may not have desired to leave, but he still intended to.

This "general intent" requirement in escape cases has been variously expressed. It has been referred to as the "intent to go beyond permitted limits" and "the intent to evade the due course of justice".

Wharton writes:

The ordinary intent required to constitute the offense of escape . . . is the intent to do an act voluntarily which results in the unlawful liberation from lawful custody.

Burdick writes:

. . . [A] specific intent is not required, in the absence of any statutory provision to the contrary. The voluntary act of leaving lawful custody, without permission of law, is sufficient to constitute the general criminal intent required in all crimes.

However expressed, this general intent requirement must be distinguished from the concept of "specific intent."

"Specific intent" requires a showing that the defendant had an ultimate purpose or motive in performing the wrongful act. An actor has specific intent if he has the design to accomplish some particular aim or object by engaging in criminal conduct. If the crime of escape were a "specific intent" crime, rather than a "general intent" crime, a prisoner would not be guilty of escape unless it could be demonstrated that he had some ultimate purpose in mind beyond mere departure. Thus, for example, escape could conceivably be defined as a specific intent offense requiring an intent to avoid confinement permanently. In that case a prisoner would not be guilty of escape unless it could be proven that when he left prison he intended never to return. The fact of the matter is, however, that escape at common law has never been deemed a specific intent crime; it has always been considered a general intent crime.

B. Escape Under 18 U.S.C. § 751

The crime of escape is now largely governed by statute in the United States. The relevant federal statute is 18 U.S.C. § 751 which proscribes "escape from the custody of the Attorney General." The statute does not define the actus reus or mens rea of the crime beyond the words "escape from custody." The question therefore arises whether this statutory provision is essentially declaratory of the common law or whether it expands on the common law, incorporating new elements.

It is clear from the statutory language itself and from the precedents that 18 U.S.C. § 751 carries over the common law elements of escape both as to the actus reus and the mens rea.

The statute uses only the word "escape" in defining the proscribed action. It does not further define this term. There are no adjectives modifying it, and there is no legislative history on its meaning. It is a basic canon of statutory construction that where an undefined term is used in a statute, it must be construed in light of its common law meaning, in the absence of evidence indicating a contrary meaning; this is especially true in interpreting criminal statutes. Where Congress borrows a term of art in which is accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the meaning its uses conveys to the judicial mind, and in such a case, in the absence of a contrary direction, its use may be taken as satisfaction with widely accepted definitions and not a departure from them. Accordingly, it is clear as a matter of statutory construction, that by defining an offense solely by reference to the word "escape", Congress intended to carry over the common law elements of the crime. Thus, escape under 18 U.S.C. § 751 must be deemed a "general intent" rather than a "specific intent" offense.

This conclusion is supported by the clear weight of authority. A series of court of appeals cases has either explicitly or tacitly treated escape under § 751 as a "general intent" crime. The majority cites the Seventh Circuit case of United States v. Nix as sole support for the proposition that escape is a "specific intent" crime; however, analysis of the Nix decision demonstrates that it does not support the majority's position. The Nix case focused on the ongoing controversy concerning the availability of the intoxication defense. Under one view the intoxication defense is available only with respect to "specific intent" crimes. The modern and ascendant view, however, is that intoxication may serve as a defense to "general intent" crimes as well. In the Nix case there were two defendants — Nix and Peterson: Nix was charged with " attempted escape"; Peterson was charged with "escape." Each claimed that they were intoxicated at the time of their offenses. Since all attempt crimes require "specific intent," Nix claimed that he was entitled to an intoxication instruction. Peterson argued that the crime of "escape" should also be considered a "specific intent" crime so that he, too, would be entitled to an intoxication instruction. The court acknowledged that there was scarce authority for Peterson's "specific intent" argument, but held that the intoxication was available as a defense for both escape and attempted escape regardless of the specific or general nature of the intent element required for those crimes. It stated that there was some intent element required in escape cases and defined it as "the intent to avoid confinement." The court then stated: " Whatever label is placed on this intent, a defendant under § 751 is entitled to an instruction that includes this mental component as an element of the crime . . .. If the defendant offers evidence that he was intoxicated at the time of the offense, the jury must be instructed to consider whether he was so intoxicated he could not form an intent to escape." In essence, then, the Nix court simply held that intoxication should be a defense to escape regardless of whether escape is a general or specific intent crime.

In the course of its decision the Nix court defined the intent element of escape as the "intent to avoid confinement." On its face, this seems to be a general intent requirement. As already noted, the common-law general intent requirement for escape has usually been defined as the intent to depart from custody, the intent to go beyond permitted limits, or the intent to evade the due course of justice — the "due course of justice" being continued and uninterrupted confinement. The words "avoid confinement" seem to correspond completely with these definitions. There is nothing in this definition that suggests that an escapee must act with any ultimate motive or object in leaving confinement; on its face, it does not require an intent to avoid confinement permanently. In short, the definition provided by the Nix decision of the mental element required in escape cases is no different from the traditional general intent to go beyond permitted limits.

In sum, then, it is evident from the statutory language itself and from the precedents that escape from custody under 18 U.S.C. § 751 is a general intent crime. No federal court has held it to be a specific intent offense, in the sense of requiring that an escapee have an ultimate purpose beyond departure from confinement.

C. The Relevance of Defendants' Evidence to the Intent Issue

It remains to be determined whether defendants' evidence concerning fires, assaults, and medical care was relevant to the issue of intent.

If one thing is clear under the duress doctrine it is this: compulsion does not negate general intent. As already discussed in Part III of this dissent, there are two types of defenses in criminal law. One type negates the elements of the crime; for example, the intoxication defense is designed to negate the mens rea or intent element of an offense. The other type of defense negates criminal responsibility by raising some matter that justifies or excuses a technical violation of the law. Compulsion, duress, and necessity are defenses of this latter type. The rationale for these defenses is not that the defendant, confronted with an unnerving threat of harm, does not "intend" to do what he does, but rather that, when his free will was impinged upon, he made the most socially useful choice between two evils. Rather than go to issue of intent, the doctrine of compulsion or duress goes to the issue of voluntariness and reflects a policy decision as to the point or stage up to which an individual under compulsion should be expected to resist pressure and act according to his own will rather than submit to the will of another. This policy decision involves consideration of the social utility of the individual's actions. As already pointed out, if A forces B at gunpoint to hit C, B is innocent of battery. He is innocent not because he was without the requisite intent — he did intend to hit C — but rather because he made the best choice under the circumstances.

Since the crime of escape under 18 U.S.C. § 751 requires only a "general intent", namely the intent to depart from custody, it is clear that defendants' evidence regarding fires, assaults, and medical care was not relevant to the "intent" issue. Even assuming for the purpose of argument that defendants' evidence established overwhelming compulsion — the threat of imminent death — still, this would not negate defendants' intent. There is no doubt that defendants consciously and deliberately departed from prison and that they were aware of the nature of their actions. They freely admit this, and this is all that is required to establish the "intent" element required under 18 U.S.C. § 751. Accordingly, the trial court's instructions on the intent issue were entirely correct.

The majority's treatment of this issue is obscure. Adopting the Nix court's definition of escape, it holds that the intent element of the offense consists in the "intent to avoid confinement". It then concludes that "a jury can consider whether evidence of jail conditions, threats, and violence such as presented by appellants in the District Court raises reasonable doubts concerning a defendant's . . . intent to avoid confinement."

The majority's use of the phrase "intent to avoid confinement" is somewhat ambiguous. On its face, it seems to mean nothing more than the intent to depart from prison or the intent to go beyond permitted limits; it does not appear to require any ultimate purpose of objective beyond departure from custody. If this reading is correct, then the phrase is consistent with traditional formulations of the intent element required in escape cases and calls only for a "general intent." If this is what the majority means by the phrase, then plainly it is dead wrong in its assertion that evidence of compulsion is relevant to such intent in view of the elementary precept that compulsion does not negate general intent.

However, there are indications that the majority is investing the phrase with more meaning than is apparent on its face. It seizes upon and emphasizes the Nix court's statement that "most courts, confronted with evidence that a defendant could not or did not form an intent to leave and not return, have held such an intent essential to proof of the crime of escape." This suggests that the majority is equating an "intent to avoid confinement" with an "intent to leave and not to return"; in other words, by the phrase "intent to avoid confinement" the majority may really mean "intent to avoid confinement permanently." Indeed, this is the position urged by defendants in the trial court and on appeal. Under this reading, a prisoner could only be held guilty of escape if it could be proved that, at the time he left prison he never intended to return again. However, the majority denies, though somewhat feebly, that it is adopting this definition of the intent element. It acknowledges that "[d]escribing the requisite intent for escape as an `intent to leave and not to return' is not completely satisfactory since it might not cover a prisoner who intends to take an unauthorized temporary leave of absence."

The majority has conjured up a wholly novel definition of the intent element of escape, however. Still fastening on the Nix court's phrase "intent to avoid confinement," the majority asserts that the intent required under 18 U.S.C. § 751 is neither the general intent to go beyond permitted limits, reflected in the trial court's instructions, nor the specific intent to avoid confinement permanently, urged by defendants. Rather, according to the majority, the intent element of escape is defined by reference to the nature of prison conditions:

The word "confinement" describes the most common form of punishment prescribed by our legal system. Jurors are readily aware that a person serving a sentence for a crime is "confined" — i.e., his liberty is restricted — in certain fundamental ways. For example, he cannot leave the institution wherein he is confined, he cannot come and go as he pleases, his daily schedule is subject to various controls, his privacy is substantially curtailed, and he is subject to strict discipline. One who leaves custody without permission to see his mother who is ill or to improve his menu (assuming the prison fare is within reason) has an intent to avoid confinement since restricted contact with relatives and a reasonably limited choice of diet are normal incidents of confinement. Furthermore, a prisoner who leaves custody to take even a temporary "leave of absence" from a normal conditions of confinement possesses the requisite intent for escape. On the other hand, if a prisoner offers evidence to show that he left confinement only to avoid conditions that are not normal aspects of "confinement" — such as beatings in reprisal for testimony in a trial, failure to provide essential medical care, or homosexual attacks — the intent element of the crime of escape may not be satisfied. When a defendant introduces evidence that he was subject to such "non-confinement" conditions, the crucial factual determination on the intent issue is thus whether the defendant left custody only to avoid these conditions or whether, in addition, the defendant also intended to avoid confinement. In making this determination the jury is to be guided by the trial court's instructions pointing out those factors that are most indicative of the presence or absence of an intent to avoid confinement.

Thus, under the majority's approach, in order to determine whether a particular defendant has satisfied the intent element under 18 U.S.C. § 751, three inquiries must be made. First, what condition or factor prompted the defendant to depart from custody? Second, was this condition a "normal incident of confinement"? And, third, was the defendant's departure prompted "only" by this factor or condition? Apparently, the majority believes that if a defendant's departure from prison is prompted solely by "non-confinement conditions", that he has not "intended" to escape from prison. In short, the majority holds that the intent required under 18 U.S.C. § 751 is the specific intent to depart from "confinement conditions," rather than from "non-confinement conditions."

As strained as the majority's approach is, it is understandable. My colleagues are apparently prepared to labor mightily to exculpate these defendants. They have come to realize that the defendants' flimsy duress defense does not pass muster under traditional standards. Undeterred, however, they have looked about for some other avenue for raising the "duress issues"; for some reason, they have decided to work under the rubric of "intent." Here, however, they have run up against the simple fact that escape is a general intent crime and the fundamental principle that duress or compulsion does not negate general intent. The problem remains: How does one make issues of duress relevant to intent? My colleagues have now found a way to solve this problem; they contrive to redefine the intent element of escape by direct reference to duress. Various prison conditions, which might have given rise to a duress defense once the escapee had returned to custody, are now identified by my colleagues as "non-confinement conditions." And other prison conditions, which would not have given rise to a duress defense, are termed "confinement conditions." If a prisoner's departure from prison is prompted by duress-inducing conditions, he has not "intended" to escape. If a prisoner's departure is prompted by other conditions, however, he has "intended" to escape. Voila! Matters of duress are now directly relevant to the issue of intent. Modestly, the majority relegates this legerdemain to a footnote.

There are several problems with the majority's approach. The most serious one is that it has no foundation in the law.

First, it is clearly contrary to the common law. It has never been an element of escape at common law that an escapee have a specific intent to avoid "the normal incidents of confinement"; all that is required is an intent to go beyond permitted physical limits, and this is a general intent requirement.

Second, it is directly in conflict with innumerable cases holding that prison conditions, no matter how rank and intolerable, do not affect liability for escape.

Third, there is absolutely nothing in 18 U.S.C. § 751 that suggests adoption of this novel element. The statute uses only the word "escape" to define the offense, and, in the absence of a contrary indication, that term must be construed according to its common-law meaning.

Fourth, there is no case law holding that a specific intent to avoid "the normal incidents of confinement" is an element of escape under 18 U.S.C. § 751. I invite the majority to cite one authority, state or federal, that even hints at this position.

Fifth, the majority's position is conceptually unsound. Even if the distinction between "confinement conditions" and "nonconfinement conditions" is valid, it is incorrect to say that a defendant does not intend to avoid confinement conditions simply because his immediate purpose is to avoid non-confinement conditions. A defendant "intends" what he knows to be the necessary consequences of his actions. Thus, even though a prisoner's primary or sole purpose is to avoid "non-confinement conditions," he can only do so — and he knows he can only do so — by avoiding legitimate confinement conditions as well. When and if he leaves prison, this prisoner "intends" to depart from "confinement conditions" even though his motive is to avoid non-confinement conditions. The majority unfortunately confounds "motive" with "intent."

There is also a practical problem inherent in the majority's approach. In order to ascertain the "intent" of the defendant — his subjective state of mind — the majority's decision necessitates embroiling the fact-finder in an inquiry into the boundaries between normal prison conditions and abnormal prison conditions. I submit this inquiry is irrelevant to the issue of intent. The severity of prison conditions is relevant to the issue whether the defendant has been subject to duress or compulsion, and in this context the question is not whether a particular condition is or is not a "normal" incident of prison life, but, rather, whether the condition is such as to raise in the defendant's mind a well-grounded apprehension of serious bodily injury or death.

In sum, then, it is indisputable that escape under 18 U.S.C. § 751 is a general intent crime. It is also clear that evidence of compulsion, while perhaps relevant to an affirmative defense of duress or necessity, does not negate general intent. If the majority insists that escape is a specific intent crime, I submit this is totally without support in legal precedent and the inescapable practical results are a demonstrable absurdity. Consequently, the majority's theory that evidence of duress, though insufficient to make out a duress defense, should nevertheless be presented to the fact-finder as relevant to the defendants' intent is simply wrong.

On analysis, then, my view of the majority position is this:

1. The defense of duress cannot be validly asserted by these defendants, because (a) there was never any attempt by defendants to turn themselves in to appropriate authorities, and further, (b) such evidence as was offered by defendants was insufficient as a matter of law to make out a duress defense since it fails every previous legal test with respect to the severity and immediacy of the "compulsion."

2. Apparently realizing the weakness of defendants' position under any accepted standard of duress, the majority attempts to construct a new haven for escaped criminals under the rubric of "voluntariness." This likewise fails, because the law has always been that the proper avenue for approaching issues of "voluntariness", or "free will", is through the affirmative defense of duress in cases such as this in which defendants claim that they were deprived of free will by force of circumstances or the threats of other persons. The doctrine of duress was created specifically to deal with such issues.

3. Finally, the only meaningful way in which the majority's discussion of intent can be interpreted — and the only construction which could conceivably assist defendants here — is that the majority imposes a specific intent requirement on the crime of escape, and includes therein an intent to avoid "the normal incidents of confinement." However, such a requirement has never before been found in the federal courts; its practical application would make a mockery out of the federal escape statute. The majority's theoretical edifice in this opinion is not only unprecedented: it is unworkable.

I respectfully dissent.