Defendants were convicted of unauthorized possession and distribution of instruments to administer controlled substances in the District Court of Essex County. On direct appeal, the Supreme Court of Massachusetts held that defendants were not entitled a jury instruction on the defense of necessity.

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 fiftytwo 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 over-the-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.

The defense of justification by necessity is not applicable unless a person is “faced with a clear and imminent danger, not one which is debatable or speculative . . .” The prevention of possible future harm does not excuse a current systematic violation of the law in anticipation of the eventual over-all benefit to the public. The defendants did not show that the danger they sought to avoid was clear and imminent, rather than debatable or speculative . . . That some States prohibit the distribution of hypodermic needles without a prescription, and others do not, merely indicates that the best course to take to address the longterm hazard of the spread of AIDS remains a matter of debate.

The defendants’ argument is that, in their view, the prescription requirement for possession and distribution of hypodermic needles and syringes is both ineffective and dangerous. The Legislature, however, has determined that it wants to control the distribution of drug-related paraphernalia and their use in the consumption of illicit drugs. That public policy is entitled to deference by courts. Whether a statute is wise or effective is not within the province of courts . . . Citizens who disagree with the Legislature’s determination of policy are not without remedies . . . Thus, the defendants did not meet the requirement that there be no legal alternative to abate the danger.

The defendants argue that the increasing number of AIDS cases constitutes a societal problem of great proportions, and that their actions were an effective means of reducing the magnitude of that problem; they assert that their possession, transportation and distribution of hypodermic needles eventually will produce an over-all reduction in the spread of HIV and in the future incidence of AIDS. The defendants’ argument raises the issue of jury nullification, not the defense of necessity. We decline to require an instruction on jury nullification. “We recognize that jurors may return verdicts which do not comport with the judge’s instructions. We do not accept the premise that jurors have a right to nullify the law on which they are instructed by the judge, or that the judge must inform them of their power.”

Judgments affirmed.

LIACOS, Chief Justice (concurring).

I agree with the court that the judge was not required to instruct the jury on the defense of necessity. I write separately for two reasons.

First, I reiterate my concern (not implicated by the facts of this case) that evidence of necessity not be excluded by a motion in limine once a defendant has made a sufficient offer of proof. Even though a defendant ultimately may not be entitled to an instruction on the necessity defense, the presentation of evidence regarding necessity allows the jury to fulfil their vital functions of “temper[ing] the application of strict rules of law by bringing the common sense judgment of a group of laymen to the case [and] standing as a check on arbitrary enforcement of the law.” Commonwealth v. Hood, supra at 597, 452 N.E.2d 188 (Liacos, C.J., concurring).

Second, although the harm at issue here is “non-imminent”

and “debatable” for purposes of the defense of necessity, the overwhelming and uncontroverted expert evidence presented at trial describing the effectiveness of needle exchange programs in curbing the spread of AIDS will, I hope, indicate to the Legislature the importance of joining the vast majority of jurisdictions that have decriminalized possession and distribution of hypodermic syringes. In the words of Dean Roscoe Pound: “Law must be stable, and yet it cannot stand still.” R. Pound, Interpretations of Legal History 1 (1923).

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?
3. Explain Chief Justice Liacos’ concurrence.