People v. Unger
6 Ill.2d 333, 362 N.E.2d 319 (1977)

  • Unger was incarcerated in a minimum security prison. He claimed that he was repeatedly assaulted by several other inmates who threatened him with death. In order to escape the abuse, Unger escaped from prison.
    • Unger never reported the abuse to prison authorities.
  • Two days later he was caught and charged with escape.
  • The Trial Court convicted Unger of escape.
    • The jury was instructed that they were not to consider any reasons, justifications, or excuses for the escape.
  • The Appellate Court overturned the conviction and remanded for a new trial. The prosecution appealed.
  • The Illinois Supreme Court affirmed.
    • The Illinois Supreme Court found that Unger should have been allowed to argue the defense of necessity (aka choice of evils).
    • The Court found that there was reason to find Unger guilty, since he didn’t try to report his problems to the jailers and he didn’t turn himself in once the danger had passed. However, that was a question of fact of a jury to decide. So the case was remanded.
  • Basically, conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid public or private injury greater than the injury which might reasonably result from his own conduct.
  • Model Penal Code §3.02 allows for the defense of necessity, but notes that when weighing the evils in a prison escape, the harm sought to be prevented by the law defining the offense should be viewed broadly.
    • For example, the courts should consider whether allowing the prison to be found innocent will encourage unjustified escapes.