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{*15} In several prisons there was no food allowance; in others it consisted of a meager bread ration. "Water soup" (bread boiled in water) was not uncommon fare. Prisoners who received bread allowances on alternate days were so hungry that they often ate the entire amount the first morning and then went hungry the rest of that day and the next. Persons who entered jail in the picture of health, emerged scarcely able to move from hunger, and incapable of any labor for weeks thereafter.
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No medical facilities were available in the prisons. The air was foul and noxious from the "effluvia" of the sick and the lack of sewage facilities. Prisoners were crowded together in close rooms and underground dungeons and chains were often required to prevent escape. Men were not separated from women, nor the sane from the insane. . . .
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In addition, every incident of prison life from admission to discharge was made the occasion for levying fees against the prisoners. There were charges for the arrest, for the privilege of detention in this or that part of the prison, for bed and bedding, for food and other "conveniences" of life, and for release. In Massachusetts at the end of the seventeenth century those who were unable to pay their fees "might be sold for life or a period of years into the service of anybody willing to pay their fees." Comment at 122 n.16 (citation omitted) (quoting Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151, at 152). As one commentator put it, "Where imprisonment was often the equivalent of a death sentence, or at least, a living death, one can understand why men resisted unlawful arrest." Comment at 123. One can also understand why, as the Tooley court said, an unlawful arrest was a great provocation affecting "all people out of compassion." Tooley, 92 Eng. Rep. at 352. The common law rule set out in Tooley plainly resulted from conditions that no longer exist.
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3. Modern Arrest and Incarceration. In Washington today the law provides those arrested with numerous protections that did not exist when the common law rule arose. Reasonable bail is available. Wash. Const., art. I, {*16} sec. 20; Westerman v. Cary, 125 Wash. 2d 277, 291-92, 892 P.2d 1067 (1994). At any critical stage in a criminal prosecution a defendant has a right to appointed counsel under both the federal constitution’s Sixth Amendment and our state constitution‘s article I, section 22 (amend. X). Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Heinemann v. Whitman County, 105 Wash. 2d 796, 799-800, 718 P.2d 789 (1986). Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), held the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. None of these rights was available in 1709. "The right to resist developed when the procedural safeguards which exist today were unknown." State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1045 (1977).
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Not only has criminal procedure advanced to protect the rights of the accused, jails themselves are no longer the pestilential death traps they were in eighteenth century England. Recent Eighth Amendment litigation of prisoners’ claims of cruel and unusual punishment has established certain constitutional standards for prisons. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (prohibiting "deliberate indifference to serious medical needs"), reh‘g denied, 429 U.S. 1066, 50 L. Ed. 2d 785, 97 S. Ct. 798 (1977); Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (prohibiting the "unnecessary and wanton infliction of pain," which includes sanctions so lacking in penological justification that they constitute the "gratuitous infliction of suffering"), reh’g denied, 429 U.S. 875, 50 L. Ed. 2d 158, 97 S. Ct. 197, 97 S. Ct. 198 (1976). The United States Supreme Court "has determined that most of the constitutional rights contained in the Bill of Rights survive incarceration." Michael B. Mushlin, Rights of Prisoners 13 (2d ed. 1993).
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Thus, "in this era of constantly expanding legal protection of the rights of the accused in criminal proceedings, an arrestee may be reasonably required to submit to a {*17} possibly unlawful arrest and to take recourse in the legal processes available to restore his liberty." Commonwealth v. Moreira, 388 Mass. 596, 447 N.E.2d 1224, 1227 (1983). "The concept of self-help is in decline. It is antisocial in an urbanized society. It is potentially dangerous to all involved. It is no longer necessary because of the legal remedies available." State v. Koonce, 89 N.J. Super. 169, 214 A.2d 428, 436 (1965). We agree.
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4. The Trend Away From the Common Law Rule. In 1966, the right to resist an unlawful arrest was recognized in 45 out of 50 states. At that time the five states that had abrogated the right were Rhode Island, New Hampshire, Delaware, California, and New Jersey. Max Hochanadel & Harry W. Stege, Note, Criminal Law: The Right to Resist an Unlawful Arrest: An Out-Dated Concept?, 3 Tulsa L. J. 40, 46 (1966). By 1983, however, 25 of those 45 states had revoked the common law rule either by statute11 or decision,12 and today, only 20 states have it in place, while resisting even an unlawful arrest is prohibited by law in 30 states. "This common law principle has suffered a devastating deluge of criticism." State v. Thomas, 262 N.W.2d 607, 610 (Iowa 1978) (rule is "an anachronistic {*18} and dangerous concept"). Thus, the hold of the common law rule has weakened substantially in the last 30 years as jurisdiction after jurisdiction has modernized its jurisprudence to reflect the differences in criminal procedure in late twentieth century America as compared to early eighteenth century England. "The trend in this country has been away from the old rule and toward the resolution of disputes in court." Moreira, 447 N.E.2d at 1226.
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Courts addressing the question have set out many cogent and compelling reasons for consigning the common law rule to the dustbin of history. For example:
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While society has an interest in securing for its members the right to be free of unreasonable searches and seizures, society also has an interest in the orderly resolution of disputes between its citizens and the government. ( United States v. Ferrone (3d Cir. 1971) 438 F.2d 381, 390.) Given such competing interests, we opt for the orderly resolution through the courts over what is essentially "street justice."13 Evans v. City of Bakersfield, 22 Cal. App. 4th 321, 27 Cal. Rptr. 2d 406, 412 (1994).
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While defendant‘s rights are no doubt violated when he is arrested and detained a matter of days or hours without probable cause, we conclude the state in removing the right to resist does not contribute to or effectuate this deprivation of liberty. In a day when police are armed with lethal and chemical weapons, and possess scientific communication and detection devices readily available for use, it has become highly unlikely that a suspect, using reasonable force, can escape from or effectively deter an arrest, whether lawful or unlawful. His accomplishment is generally limited to {*19} temporary evasion, merely rendering the officer’s task more difficult or prolonged. Thus self-help as a practical remedy is anachronistic, whatever may have been its original justification or efficacy in an era when the common law doctrine permitting resistance evolved. . . . Indeed, self-help not infrequently causes far graver consequences for both the officer and the suspect than does the unlawful arrest itself.
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Accordingly, the state, in deleting the right to resist, has not actually altered or diminished the remedies available against the illegality of an arrest without probable cause; it has merely required a person to submit peacefully to the inevitable and to pursue his available remedies through the orderly judicial process. People v. Curtis, 70 Cal. 2d 347, 450 P.2d 33, 36-37, 74 Cal. Rptr. 713 (1969) (footnote and citation omitted).
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