Breaking the Law for a Larger Social Interest

<i> George P. Fletcher is a professor at the Columbia University School of Law. His book on the Goetz case, "A Crime of Self-Defense," will be published in June by Free Press. </i>

Santa Barbara Municipal Court Judge Frank Ochoa ruled this month that 35 trespassing UC Santa Barbara students could justify their intrusion into the chancellor’s office on grounds of necessity.

The students staged their technically unlawful sit-in to protest appointment of a Central Intelligence Agency agent who, without conventional academic credentials, was scheduled to teach a course in political science. The course would be closed, by invitation only; if discussion in the classroom tread on sensitive territory, the agent would not be free to tell all that he knew. In addition, offering the course would enable the agent to recruit students for the agency.

Through their activist lawyer Richard Frishman, the defendants maintained that their sit-in was necessary to protest and minimize likely harm to the university and its student body.


The judge’s ruling that the “necessity defense” was relevant opened up the political dimension of the trial and permitted the students to testify on why they felt it imperative to violate the letter of the law. The jury turned out to be irreconcilably deadlocked, with nine votes for acquittal and three for conviction.

There is little law in California to support Ochoa’s ruling that the students’ political motivations were relevant. One precedent recognizes the necessity defense in a case involving a female prisoner who escaped from prison to avoid the imminent danger of lesbian rape. The focus in that case was on the “personal dilemma”: escape or be raped. But the UCSB students could not argue, by analogy, that they were compelled to sit in at the chancellor’s office. They chose , freely, to commit trespass as a political act.

The rationale for the necessity defense at UCSB is that the law is designed to further the interests of society. In enacting general criminal prohibitions, like those against trespass, the Legislature can never completely capture all the circumstances that determine whether it is better to trespass or not.

No statute tells us that trespassing to save someone caught in a fire is better than minding the law and letting the endangered person die. Yet there is little doubt that saving life--or even saving property--justifies treading on normally forbidden turf.

The most the Legislature can do is turn the legal dial toward the band of conduct it seeks to prohibit; fine-tuning is left to the individual who, pressed by unique circumstances, must decide whether the general good of society requires strict obedience to the law or just the opposite--a nominal violation in order to further the interests of all of us.

Opening the trial in Santa Barbara to these larger issues is part of a worldwide trend to recognize the necessity defense. West Germany, the Soviet Union and numerous American states, including New York, Illinois and Texas, recognize the defense by statute.

The necessity defense gained currency in this century when the courts and legislatures came to realize that there was no better way to deal with the moral quandary of abortion than carefully balancing the interests of the mother and those of the fetus.

Significantly, in recent years, the same defense of furthering the greater good has become the primary vehicle for rendering relevant the motivations of those who nominally violate the law under politically charged circumstances. In a dramatic application of the defense, an American court sitting in Berlin in 1979 allowed an East German to justify his hijacking of a Polish airplane in order to escape to the West. Closer to home, a Massachusetts jury heared the motivations of Amy Carter, Abbie Hoffman and 13 others in an earlier campus CIA dispute at the University of Massachusetts last year. The jurors wound up acquitting the defendants of trespassing and disorderly conduct.

Political questions once relegated to the inner forum of conscience can now be heard in open court. The civil disobedient can argue that moral factors justify an act as being in the overall public interest.

The great advantage of venting political issues in open court is that the defendant gains the sense of being tried for what he did and why he did it--rather than for a technical violation of the law. If convicted by a jury that has heard all the arguments, the defendant might even learn something from a community judgment; punishment might have meaning. But if convicted without a hearing on political motivations, the law can seem irrelevant and oppressive, concerned only about lawyers’ arcane arguments.

A good example of the law gone awry is Bernhard Goetz’s felony conviction for possessing a loaded weapon in public. New York law recognizes the necessity defense but his lawyers did not raise that defense against the gun possession charge. As a result Goetz’s trial never confronted the issue of those who regard carrying guns in our urban jungles as a political necessity. The questions raised by Goetz’s shooting four black youths are still open. His trial dealt with the issue of self -defense but skirted the impulsions that drove Goetz into the subway with a loaded gun under his belt.

The danger of the necessity defense is that it provides a means for circumventing the democratic process. The preferred way of fighting the CIA or other government activity is the electoral process. In a democratic system, citizens can resort to criminal actions as legitimate means of political expression only when the polls are not a sensible alternative. When there is an immediate danger to be avoided, a harm that voting cannot prevent, the necessity defense has its place.

The requirement of imminent harm--a generally recognized condition for the necessity defense--induced Ochoa to limit the students’ defense to harms that the appointment of the CIA agent would bring about immediately--primarily to academic freedom on campus. The judge concluded, sensibly, that possible harms resulting from CIA covert operations were too tenuous to weigh in the balance on the side of the students.

From time to time, governments and their agents seek to invoke the necessity defense. John Ehrlichman and foot soldiers in the Watergate scandal argued that the greater good of the country justified burglary and ransacking. The courts rejected the argument of necessity to justify illegal conduct carried out in the name of the government.

We may well hear the argument again when and if Oliver L. North, John M. Poindexter and other Iran-Contra figures come to trial.

The executive branch has emergency powers but governments should not be able to trade on a supposed analogy between individuals caught in emergency situations and an Administration’s desire to pursue particular policies. Government owes its power to the democratic process and therefore has a special obligation to the people, not to deviate from constitutionally prescribed means for changing the law.

The promise of the necessity defense is that it opens criminal trials to the political factors that motivate individual acts of conscience. The peril is that governments and their agents will seek to justify illegal uses of power as acts necessitated by the public good.