LAST MONDAY the Supreme Court said that a prisoner may sometimes have a right to escape from jail. But, it added, he can exercise that right only if he offers to surrender as soon as he has escaped. Here is the logic of the thing:
For more than a century, the law has recognized that a prisoner should not be punished for escaping from jail in order to avoid bodily harm. One who is fleeing from a burning prison "is not to be hanged because he would not stay to be burnt," the court said in 1868. The question of whether the prisoner fled to avoid being burned or to avoid being confined is one for a jury to decide.
So far, that argument sounds as if it would sustain the claim of three men who said they escaped from the old D.C. jail in 1976 because of intolerable conditions there. They wanted a jury to decide whether those conditions (which have since been changed) justified their escape.
But -- and this is where it gets tricky -- Justice William Rehnquist said for the court that an escapee is entitled to tell his story to a jury only if he tried to surrender as soon as he escaped. If he surrendered, or tried to, that would make it clear he had fled only to avoid intolerable conditions. Otherwise, the presumption would be that he had fled to avoid further confinement. And avoiding further confinement, of course, is the heart of the crime of escape. Thus, the three men should not be allowed to tell their story to a jury because they had not surrendered.
This reasoning, which Justice Harry A. Blackmun called "an impeccable exercise in undisputed general principles and technical legalism" has certain advantages. It protects prisoners who run for their lives when the jail is burning, so long as they don't run too far. And it cuts off what otherwise might have been a flood of claims that terrible conditions in the prisons have justified many escapes.
But it also has a hollow ring to it. A prisoner who flees because he fears a guard or a fellow inmate is about to kill him cannot get his claim heard by a jury unless he immediately surrenders and, in most cases, goes back to face that guard or inmate again. His only hope, in other words, is to tell his story to a local newspaper in the brief interval after he has called the police and before they arrive.
The solution offered by the Court of Appeals here seems better than that espoused by the Supreme Court. The lower court would have permitted the three men, and other prisoners, to lay their claims before a jury and let it decide whether prison conditions were so bad as to justify the escape. The key question in every escape trial is whether additional punishment should be imposed -- the prisoner, by definition, has been caught and is serving his original sentence. The answer should have as much to do with what he was escaping from as what he was escaping to.