Concept
Weighing the Harms
Necessity (choice of evils)
Weighing the Harms
The earlier requirements in this chapter looked at the actor's situation and conduct: whether the danger was close, whether the offense would work against it, and whether any lawful route remained. Subsection (1)(a) of Model Penal Code § 3.02 adds a comparison between two harms. It requires that the harm or evil the actor sought to avoid be greater than the harm the law defining the offense charged seeks to prevent.1 This comparison is a different question from the actor's belief, and the two are easy to run together.
Belief concerns the actor's state of mind. A druggist who sells a drug without a prescription, unaware that the buyer needs it at once to survive, gets no help from the buyer's actual need, because the druggist never believed the sale necessary.2 The balance of harms concerns what was really on each side of the scale, whatever the actor thought. This section takes up three consequences of that second question: an equal harm will not do, the comparison is decided at trial and not by the actor, and courts apply it with special firmness to claims of economic hardship.
Greater, Not Equal, Harm
Subsection (1)(a) states its standard in one comparative word. The harm avoided must be greater than the harm the offense charged is aimed at, and an equal or lesser harm will not suffice.3 The offense side of the scale is set by the definition of the offense: for arson it is the burning of property, and for homicide it is the loss of a life. The other side is whatever the actor sought to avoid, whether the harm threatened the actor or someone else, so the defense reaches a rescuer as readily as a person in danger.4 Courts using the common-law formulation state the same requirement as a demand that the harm abated exceed the harm resulting from the violation of law.5
The strict margin has a reason that follows from what a justification is. A necessity claim admits that the actor did what the statute forbids, and the harm the statute targets does not stop being a harm because the actor had a motive. It remains a harm the law wants avoided wherever possible, and the law tolerates it only because an even greater harm was avoided.6 When the two harms are equal, the conduct buys nothing the law can count, since it moves an injury from one person to another and leaves the total where it was. An incentive problem points the same way. Everyone in an emergency has reason to rate the interest at stake for the actor, or for someone the actor cares about, as at least as weighty as the victim's, and a defense satisfied by a tie would be met in nearly every case. Requiring a surplus lets the legislature's judgment in the offense definition control unless the benefit of the conduct clearly exceeds its cost.
The comparison weighs the values that the offenses protect, so the clearest cases set a larger interest against a smaller one. A starving person who takes and eats another's food trades property for life, and an actor who intentionally kills one person to save two trades one life for two; the law prefers the lesser evil in each.7 The commentary to § 3.02 gives two more examples in which lives are exchanged for lives. An actor breaches a dike knowing the water will flood a farm, but takes the only course that will save a whole town. Charged with the homicide of the people in the farmhouse, the actor can answer that the law of homicide exists to protect life and that the conduct produced a net saving of innocent lives, since every life counts the same and the lives saved outnumber those lost.8 A mountaineer roped to a companion who has fallen over a precipice holds on as long as possible and finally cuts the rope, which hastens one death slightly and avoids the only alternative, the certain death of both.9
Property can fall on the smaller side of the scale as well. A forest fire is moving toward a town of 10,000 people, and an actor burns a field of corn lying between the fire and the town so that the burned ground works as a firebreak. The actor has committed every element of arson, and the destruction of the field is exactly the harm the arson statute exists to punish. The actor is nevertheless likely to have a complete defense, because the harm done is outweighed by the 10,000 lives saved and society tolerates, and even encourages, conduct of that kind.10 The firebreak shape is familiar from the earlier discussion of effective conduct, but the question here is different. Effectiveness asked whether the burned ground would stop the fire, and the comparison asks whether what the fire would have destroyed is worth more than the field.
The two versions differ in one variable, which is what sits on the saved side of the scale. The offense, the motive, and the need to divert the water are identical, so the comparison alone separates the outcomes. Students lose this element when they treat saving something of equal value as justification, since the Code asks for a surplus and a sympathetic motive does not supply one.
When the comparison is not lopsided in kind, it becomes contested. The commentary itself recognizes that not everyone agrees it is ethically better to take one innocent life than to lose many, and it treats a net saving of lives as warranted when the choice among the lives to be saved is not unfair.11 That qualifier is where a well-known hypothetical from moral philosophy bites. A surgeon has five patients who will die without transplants, and a healthy visitor who happens to be a match comes in for a check-up. The surgeon's arithmetic of five lives for one matches the dike, but the surgeon draws on a bystander who faced no danger before the surgeon chose, and that feature invites the objection that the selection is unfair. The law also differs on how far such arguments can go. The common-law tradition holds that necessity is no defense to homicide, on the theory that killing an innocent can never be the greater good, and Dudley & Stephens is the usual reference point. The Code contains no explicit homicide limit, so a killing that nets lives saved could in principle be justified.12 On a contested balance, an exam answer should state the numerical argument, state the fairness objection, and then reach a conclusion.
Court Decides the Balance
The comparison is not committed to the actor's private judgment. The Code conditions the defense on the actor's belief that the conduct is necessary, but subsection (1)(a) requires that the harm avoided actually be greater than the harm of the offense, and the commentary stresses that this differs from the defendant's believing it to be so.14 Its own illustration is a defendant who genuinely believes that another person's life is worth less than the defendant's financial security. The belief is sincere and the conduct is still not justified, because the balance is judged by what the harms actually were.15
The reason is the incentive problem that already explained the rule against equal harms. A defendant who could fix the weight of competing interests would be judging a dispute in which the defendant is a party, and an honest sense that one's own stake counts for more is the very distortion the comparison is meant to filter out. The offense definition also records the legislature's judgment about the harm at stake, and a private revaluation by the actor would replace it. So the comparison goes to a decision-maker with no stake in the outcome, as an issue to be determined at trial.16 The common-law formulation likewise has the jury find that the harm avoided was greater than the harm caused.17 Courts describing the defense also say that necessity is determined by an objective standard.18
The Code does not say how much of the balancing belongs to the judge as a matter of law and how much goes to the jury. The drafters disagreed about the allocation and sent the question to the law that ordinarily governs the functions of court and jury.19 That ordinary division gives the judge the questions of law, including whether the evidence is enough to put an issue to the jury, and gives the jury the disputed facts. A defendant who presents evidence from which a reasonable juror could find the avoided harm greater can therefore expect to reach the jury. A judge who concludes that the claimed harm cannot outweigh the offense as a matter of law may refuse the instruction, and the economic necessity cases below show that path in operation.
The Code asks two questions here, and they have different owners. The actor's belief in the necessity of the conduct is the first, and both defendants satisfy it. The actual size of the harms is the second, and the factfinder answers it at trial. Students lose this element when they treat a sincere belief that the harm was greater as proof that it was.
Economic Necessity Claims
Courts apply the comparison most firmly against claims that the harm avoided was poverty or financial strain. In People v. Fontes, a person who tried to cash a forged payroll check to buy food for his family was refused a jury instruction on necessity. The court reasoned that economic necessity alone cannot support a choice of crime, though it may matter a great deal at sentencing.21 Other authority agrees that statements rejecting economic necessity as a defense fill the books, and that courts have so held.22
Two lines of reasoning support the firmness, and both rest on the comparison. The first concerns the harms themselves. Theft, forgery, and fraud inflict financial loss on someone else, so a defendant who commits them to relieve the defendant's own money troubles has usually moved a loss of the same kind from one account to another, and the equal-harm rule stops the claim. The second is institutional. A necessity defense admits the violation and argues that it was the better choice, so a successful claim in effect amends the criminal code to carve out the defendant's conduct and, on some level, approves it. If courts did that for every claim of hardship, they would override the elected legislature, the body best placed to make this kind of cost-benefit judgment, and one federal district court reasoned on that basis that the defense belongs to rare situations only.23
The refusal reaches economic necessity in the ordinary sense, and it leaves room for a real danger to life. Economic necessity as courts use the phrase falls far short of an actual need to prevent starvation, and mere convenience will not excuse the intentional deprivation of another's property.24 When the harm on the scale is a life, the comparison favors the actor, because the law prefers the loss of property to the loss of a life.25 Whether a starving actor then prevails depends on the other requirements, such as the soup kitchen and the disabled ship discussed earlier under alternatives. The comparison no longer blocks the claim, but the other requirements still have to be met.
The only variable that moved is the harm on the saved side of the scale. That is why courts can refuse the economic hardship claim categorically and still accept a claim built on a danger to life. Students lose points when they let a sympathetic hardship stand in for the greater harm the element requires, since sympathy belongs to sentencing and the comparison belongs to the defense.
Greater, Not Equal, Harm
Subsection (1)(a) of § 3.02 turns the choice-of-evils defense into a comparison. The greater, not equal, harm requirement says that the harm or evil the actor sought to avoid must exceed the harm the law defining the charged offense seeks to prevent, and an equal or a lesser harm will not suffice.27 Two features of that wording matter. The offense side of the scale is fixed by what the definition of the crime is aimed at, so a homicide charge is measured against the value of life and an arson charge against the destruction of property by fire. The saved side is whatever the actor was truly trying to avert, and the word greater demands a surplus, so a tie goes against the actor.
The surplus requirement follows from what a justification admits. A defendant who pleads necessity concedes that the conduct met every element of the offense, and the harm the statute targets does not shrink because the actor had a good reason. It remains a harm the law wants avoided wherever possible, and the law tolerates it only because an even greater harm was prevented.28 When the two harms are equal, the conduct accomplishes nothing the law can count, since it relocates an injury from one person to another and leaves the total unchanged. An incentive reason points the same way. In an emergency, anyone has reason to rate the interest at stake for themselves, or for someone they care about, at least as high as the interest of the stranger who will bear the cost, and a defense satisfied by a tie would be met in nearly every case. Demanding a surplus lets the legislature's valuation in the offense definition stand unless the benefit of the conduct clearly outweighs its cost.
The clearest satisfying cases set a larger number of lives against a smaller number. The Comment to § 3.02 offers two. An actor who breaches a dike, knowing the water will flood a farmhouse, but who takes the only course that will save a whole town, can answer a homicide charge by pointing out that homicide law exists to preserve life and that the conduct produced a net saving of innocent lives, since every life counts the same and the lives saved outnumber those lost.29 A mountaineer roped to a companion who has fallen over a precipice holds on as long as possible and finally cuts the rope, which hastens one death slightly and avoids the only alternative, the certain death of both.30
Property can sit on the smaller side of the scale as well, because the law ranks life above property. The same ranking appears in the rules on defending property, where deadly force may not be used solely to protect property because human life is worth more.31 In the forest-fire illustration, a fire is moving toward a town of 10,000 people and an actor burns a cornfield in its path to create a firebreak. The actor commits every element of arson, and the lost field is exactly the harm the arson statute punishes, yet the 10,000 lives saved outweigh it and the actor is likely to have a complete defense.32 Reverse the positions and the comparison fails. An actor who takes a life to protect personal financial security has put money on the saved side and a life on the offense side, so the harm avoided is the lesser one, and subsection (1)(a) is unmet even when the actor sincerely values the money more.33
The only variable that moved is the number of lives on the saved side of the scale. The offense, the driver's motive, and the need to swerve are identical in both versions, so the comparison alone separates the outcomes. Students lose this element when they treat trading one harm for an equal one as a net benefit, since the Code requires a surplus and a reasonable motive does not supply one.
The comparison is easy to run when the numbers or the kinds of interest line up and contested when they do not. The Comment itself acknowledges that it is not universally held to be ethically better to take one innocent life than to lose many, and it treats a net saving of lives as warranted only when the choice among the lives to be saved is not unfair.34 The surgeon hypothetical shows where that qualifier bites. A surgeon with five patients who will die without transplants kills a healthy visitor whose tissue happens to match, which saves a net four lives on the dike's arithmetic, yet the visitor faced no danger until the surgeon made the selection, and that selection is what invites the charge of unfairness.35 Courts and codes also differ on how far the numerical argument may run. Dudley & Stephens rejected necessity as a defense to homicide and cast doubt on its validity for any crime, although American authority has largely refused to follow that view.36 The common-law tradition holds that killing an innocent person can never be the greater good, while the Code contains no explicit homicide limit, so a killing that nets lives saved could in principle be justified.37 These are open questions, and on an exam an answer to a contested balance should state the numerical argument, state the fairness objection, and then reach a reasoned conclusion. They also show why the Code does not let the actor settle the weighing alone, which is the subject of the next section.
Court Decides the Balance
Once the comparison in § 3.02(1)(a) is read to demand a surplus of harm avoided, a further question arises about who measures the two sides of the scale. The Code divides the work. The actor supplies a belief: the lead-in to § 3.02(1) covers conduct that the actor believes necessary to avoid a harm or evil.39 Subsection (1)(a) is worded differently, because it asks whether the harm sought to be avoided is greater than the harm the law defining the offense seeks to prevent, and it says nothing about what the actor thinks of that comparison.40 The Comment confirms the division: the balancing of evils is not committed to the private judgment of the actor, and it is an issue for determination at the trial.41
The Comment's own illustration shows how far the rule reaches. A defendant who genuinely believes that another person's life is worth less than the defendant's own financial security has not satisfied subsection (1)(a), because the subsection requires that the harm avoided actually be greater than the harm the offense causes, and it does not ask whether the defendant believes it so.42 The belief is real and the justification still fails, since the balance at trial does not favor the defendant.
Two reasons support giving the comparison to someone other than the actor, and they work at different levels. The first concerns what the comparison is. A defendant who pleads necessity concedes that the conduct satisfied every element of the offense, so the defense operates as an exception to the offense, and the Comment describes the inquiry as an interpretation of the law of the offense: given the competing values, would the legislature reasonably have meant the prohibition to reach this special situation?43 That question turns on the ranking of values the legislature built into the offense, and a defendant's personal ranking cannot supply it. The second reason is about incentive. The defendant is the person whose liberty depends on the answer, and anyone in that position has reason to rate the interest protected at least as high as the interest sacrificed. If the actor's valuation settled the balance, a sincere belief in necessity would end the inquiry, subsection (1)(a) would add nothing to the belief requirement already in the lead-in, and anyone who sincerely ranked a personal interest above a stranger's life or property could claim the justification. Handing the comparison to the factfinder keeps the weighing with a decision-maker who has no stake in it.
Courts describing the defense use the same vocabulary. Necessity is determined by an objective standard,44 and the defense reaches situations in which, from an objective perspective, the harm caused by breaking the law is less than the harm avoided.45 Under the Code's formulation, the justification is established when the jury finds the harm avoided greater than the harm caused and the defendant believes the action was necessary.46 The two questions therefore have different owners. Belief is a fact about the actor's mind, while the objective balance is a fact about the harms, to be found on the evidence.
Belief carried both defendants past the first requirement, and the comparison of what was actually at stake separated them. Everything else was held constant, including the act, the statute, and the strength of the defendant's conviction. Students lose this element when they let the defendant's sincerity answer the comparison, since sincerity establishes belief and leaves the balance of harms untouched.
The Code does not say how much of the balance is for the judge as a matter of law and how much is for the jury. There was disagreement in the drafters' governing Council over the allocation, and the question was sent to the law that generally governs the functions of court and jury.47 The Comment's two descriptions of the inquiry point in different directions. Weighing the harms depends on facts such as how many people were endangered and how seriously, which looks like jury work, while the inquiry is also described as an interpretation of the offense, which looks like judge work.48
Referring the question to general law produces the familiar division. The judge decides questions of law, including whether the evidence is enough to put an issue before the jury, and the jury decides disputed facts. A defendant whose evidence would let a reasonable juror find the avoided harm greater can expect the instruction, while a judge who concludes that no reasonable juror could find the claimed harm outweighs the offense may withhold the defense as a matter of law. Threshold exclusion does happen. In United States v. Schoon, protesters who obstructed an IRS office to oppose United States involvement in El Salvador were denied a necessity defense by the trial court as a matter of law, and the Ninth Circuit affirmed because it held the defense inapplicable in cases like that one.49 The stated ground was the inapplicability of the defense to that kind of case rather than a finding about the weight of the harms, but the decision shows a judge ending the defense before any factfinder weighs anything, and the accompanying discussion notes that judges in protest cases are often reluctant to instruct on the defense or to admit evidence supporting it.50
A complete answer to a problem that raises this element keeps the two owners apart. It treats the actor's belief as a question about the actor's mind, treats the comparison as a question about the harms actually at stake, and then applies the comparison to the facts the problem supplies. When the problem asks who decides the balance, the accurate statement is that the Code takes the question out of the actor's hands without dividing it between judge and jury, so the forum's ordinary rules about their functions govern.
Economic Necessity Claims
Economic hardship puts the comparison in § 3.02(1)(a) under heavy strain. That subsection asks whether the harm the actor sought to avoid is greater than the harm the law defining the offense seeks to prevent.52 On the defendant's side of the scale sits something sympathetic and real, such as hunger in a household or the loss of a livelihood, while the other side holds an ordinary property or fraud offense. Courts nonetheless commonly refuse the defense in this setting. In People v. Fontes an impoverished defendant tried to cash a forged payroll check to buy food for his family and was denied a jury instruction on necessity, and the Colorado Court of Appeals explained that, sympathy aside, "economic necessity alone cannot support a choice of crime," although hardship may be an important issue at sentencing.53
The refusal rests on two reasons that operate at different levels. The first concerns the legislature. A defendant who pleads necessity admits the conduct violated the law and argues that breaking it produced the greater good, so a successful defense in effect carves an exception out of the criminal code and approves what the defendant did. In United States v. Walli the court explained why the defense is a narrow one in general: applied broadly, it would override the choices of the elected legislature, the branch best placed to make these cost-benefit judgments.54 Hardship shows why that worry is concrete. The need to feed a household is shared by a great many people, so a rule that counted it as the harm avoided would reopen the legislature's ranking of property interests in a large share of theft, forgery, and fraud prosecutions, and the defense would stop being an exception for rare situations and become a routine plea.
The second reason concerns what a court can do with the hardship instead. A justification is a complete defense, so a jury that accepts it acquits, and acceptance means the law approves of the conduct. Hardship comes in endless degrees, and an all-or-nothing verdict is a poor instrument for sorting a family's temporary shortfall from desperate need. Sentencing is a better one, because the judge can reduce the punishment to fit the circumstances while the offense definition stays as the legislature wrote it.55
Economic claims usually fail a second way as well, because the alternatives requirement applies with full force. Under ordinary circumstances in a modern community it is not necessary to take another's food without consent, since a hungry person can appeal to the public authorities.56 Courts also insist that a real emergency be shown, and a mere choice among courses of action does not qualify.57 A defendant who had other ways to get food has therefore shown only a preference for the unlawful one. The economic claim meets two obstacles in sequence: the balance is rarely favorable, and lawful help is usually within reach.
The picture changes when the claim is true starvation. Economic necessity, as courts have used the phrase, covers needs far short of an actual need to prevent starvation, and mere convenience never excuses the intentional deprivation of another's property.58 The old statement attributed to Lord Bacon, that taking food to satisfy a present hunger is no larceny, sits beside many statements that economic necessity is no defense, and the two fit together once the difference in degree is seen.59 The standard illustration is a ship disabled on the high seas with its communications destroyed. Those aboard exhaust the provisions, find that part of the cargo is food, and break open the freight boxes to eat as the only means of saving themselves, and they would not be guilty of larceny.60 The features that weaken the economic claim are all reversed here. The threat is to life, the cargo is property that the comparison ranks below life, and no public authority can be reached, so the alternatives objection has nothing to attach to. Authority reports no prosecution on such facts, probably because the result is too obvious to have been brought.
The variable that moved between the two versions was whether lawful help could be reached, and the same variable separates Fontes from the disabled ship. Students lose this issue when they treat sympathy for the poor as the harm avoided, because the defense asks whether an actual emergency existed with no lawful way out, and ordinary financial need rarely supplies one. The reasoning about the legislature's role carries into the next section, where the Code itself withdraws the general defense whenever a deliberate legislative choice has already settled the competing values.61