Massachusetts is one of ten States that prohibit distribution of hypodermic needles without a prescription. In the face of those statutes the defendants operated a needle exchange program in an effort to combat the spread of acquired immunodeficiency syndrome (AIDS). As a result, the defendants were charged with and convicted of (1) unauthorized possession of instruments to administer controlled substances, and (2) unlawful distribution of an instrument to administer controlled substances. On appeal, the defendants challenge the judge’s refusal to instruct the jury on the defense of necessity. We allowed the defendants’ application for direct appellate review. We affirm.

We set forth the relevant facts. In June, 1991, the defendants were arrested and charged with sixty-five counts of unauthorized possession of hypodermic needles and fifty-two counts of unauthorized possession of syringes. Each defendant also was charged with one count of distributing an instrument for the administration of a controlled substance. The defendants told the police they were exchanging clean syringes and needles for dirty, possibly contaminated, ones to prevent the spread of AIDS . . . The two defendants legally purchased new sterile needles overthe-counter in Vermont. The defendants were at a specific location on Union Street in Lynn from 5 p.m. to 7 p.m. every Wednesday evening in 1991 until they were arrested June 19. They accepted dirty needles in exchange for clean needles; they exchanged between 150 and 200 needles each night, for fifty to sixty people. The defendants did not charge for the service or for the materials . . .

The defendants do not deny that they violated the provisions of the statutes restricting the possession and distribution of hypodermic needles; rather, they contend that the judge’s refusal to instruct the jury on the defense of necessity was error. We disagree. “[T]he application of the defense [of necessity] is limited to the following circumstances: (1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his [or her] action will be effective as the direct cause of abating the danger; (3) there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.” Commonwealth v.
Schuchardt, 408 Mass. 347, 349 (1990). A defendant is entitled to an instruction on necessity ‘only if there is evidence that would warrant a reasonable doubt whether [the defendants’ actions were] justified as a choice between evils.

We have emphasized that a person asserting the necessity defense must demonstrate that the danger motivating his or her unlawful conduct is imminent, and that he or she acted out of necessity at all times that he or she engaged in the unlawful conduct. The analysis of whether a danger is imminent does not call for a comparison of competing harms.

Questions:

1. The defendants are alleging a right to the necessity or choice of evils defense. What are the two “evils” at issue in this case?
2. What was the majority’s holding in the case?