History and Current Applications of the Necessity Defense in the United States

Abstract

Abundant studies have examined the pre-2000 history of the necessity defense in the United States, mainly concentrated on British maritime cases from the 1800s. While these old cases acted as the harbinger for the necessity defense common law as well as some precedent for the future use of the necessity defense, they only begin to scratch the surface of the complexity that is the necessity defense. The necessity defense is so involved that there is no single authoritative federal definition of the defense. Although some states have adopted the defense by law, statute, or court decision -- others do not recognize the defense. Nevertheless, the necessity defense has played an essential role in American history challenging the federal judiciary system to its very core because it brushes on intricate ethical and moral concerns.

This paper will examine what the necessity defense is, the history of the necessity defense from the year 1842 to 2013, and what it might mean for the future of American litigation. This examination will strive to observe the American court systems' use of the necessity defense and whether it was successful or not. The focus will be primarily criminal law; but will also address environmental, medical, human rights, and philosophical fields. The necessity defense should be continued to be used in the United States of America, and there should be a clear federal statute in the near future that will define and accept it.

Keywords: necessity defense, criminal law, human rights, American law