NCJ Number
72605
Journal
Buffalo Law Review Volume: 26 Issue: 2 Dated: (1977) Pages: 413-434
Date Published
1977
Length
22 pages
Annotation
In interpreting People v. Lovercamp (1974), Professor Martin R. Gardner has incorrectly reasoned that the defendant had the 'right to escape' in the face of threats of violent sexual assaults from other female prison inmates.
Abstract
The California Court of Appeals held in this case that a prisoner who escapes under threats of violent sexual assault can raise a limited defense of 'necessity' under certain conditions. Gardner argues that this case creates a right to escape for prisoners who are subjected to violent sexual assaults while incarcerated and who are unable to secure any assistance from prison authorities. Professor Gardner's inference that Lovercamp implies a right to escape is supported by the following rationales: (1) the argument of justificatory defense; (2) the doctrine that it is unlawful for third persons to defend against or prevent unjustified acts; (3) the notion that State prevention of justifiable escape by prisoners denies their right to confinement free of sexual assault; and (4) various policy considerations, such as recognition of the inmate's interests under conceptions of 'civilized' treatment and fundamental justice. Refutation of Gardner's arguments is partly based on Hohfeldian correlatives involving the rights/liabilities of the State vis-a-vis the defendants' (i.e., right/duty relation, privilege/no-right relation, power/liability relation). Professor Gardner's fundamental error is his contention that the decision establishes a privilege that entails a right to escape. Nowhere in its decision did the Lovercamp court conceive of an accompanying right. The 'privilege' of Lovercamp is 'no duty not' to escape from lawful custody under specified conditions; it does not assert that the escape was lawful and, therefore, the custody was unlawful. Indeed, most decisions hold that even if inmates are illegally confined, they may not escape but must use the judicial process to determine the illegality and obtain freedom. In addition, a determination that the right to escape does not exist is not a denial of the prisoner's right to be confined free from sexual assault. Rather, it is a determination that the prisoner must seek redress for the violation of that right through the judicial process and not by way of unmanageable self-help remedy. Finally, Lovercamp's privilege to escape applies without regard to the legality of the confinement; it was considered to have a minimal impact on societal interests while recognizing the individual's interest in personal security. Footnotes are included.