Cite as: 532 U. S. 483 (2001)
Stevens, J., concurring in judgment
Controlled Substances Act. Ante, at 491-493, 494-495, n. 7, 499. Because necessity was raised in this case as a defense to distribution, the Court need not venture an opinion on whether the defense is available to anyone other than distributors. Most notably, whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here.2
Second, the Court gratuitously casts doubt on "whether necessity can ever be a defense" to any federal statute that does not explicitly provide for it, calling such a defense into question by a misleading reference to its existence as an "open question." Ante, at 490, 491. By contrast, our precedent has expressed no doubt about the viability of the common-law defense, even in the context of federal criminal statutes that do not provide for it in so many words. See, e. g., United States v. Bailey, 444 U. S. 394, 415 (1980) ("We therefore hold that, where a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress or necessity, he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force"); id., at 416, n. 11 ("Our principal difference with the dissent, therefore, is not as to the existence of such a defense but as to the importance of surrender as an element of it" (emphasis added)). Indeed, the Court's comment on the general availability of the necessity defense is completely unnecessary because the Government has made no such suggestion. Cf. Brief for United States 17-18 (narrowly arguing that necessity defense cannot succeed if legislature has
2 As a result, perhaps the most glaring example of the Court's dicta is its footnote 7, where it opines that "nothing in our analysis, or the statute, suggests that a distinction should be drawn between the prohibitions on manufacturing and distributing and the other prohibitions in the Controlled Substances Act." Ante, at 494, n. 7.
501
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