§ 23.02 RATIONALE OF THE DEFENSE (AS AN EXCUSE)

• Jurisdiction: United States

§ 23.02. Rationale of the Defense (as an Excuse)

[A] Utilitarian Arguments

The traditional utilitarian argument in support of the duress defense is straightforward: When a person is "in thrall to some [coercive] power" the threat of criminal punishment is ineffective.¹⁹ As Hobbes has reasoned:

If a man, by the terror of present death, be compelled to do a fact against the law, he is totally excused, because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory, yet a man would reason thus: If I do it not, I die presently; if I do it, I die afterwards; therefore by doing it, there is time of life gained.²⁰

Moreover, a utilitarian may argue that the victim of coercion is just that — a victim. The coercing party, and not she, possesses a criminal disposition. Therefore, the coercing party, and not she, requires incapacitation and rehabilitation.

Not all utilitarian arguments support the defense. Sir James Stephen has presented the most famous (although not generally accepted) utilitarian argument against the excuse. According to Stephen, recognition of the defense dangerously undermines the moral clarity of the criminal law and invites fraud: "Surely it is at the moment when the temptation to [commit] crime is strongest . . . that the law should speak most clearly and emphatically to the contrary." He conceded that it is unfortunate when an innocent person is "placed between two fires," but he believed that it is a much greater misfortune for society if the coercing party could confer immunity on her "agents by threatening them with death or violence if they refused to execute . . . [her] commands." Such a rule would open "a wide door . . . to collusion, and encouragement would be given to associations of malefactors, secret or otherwise."²¹

[B] Retributive Arguments

Most arguments in support of the duress defense are founded on the retributive principle that a coerced actor does not deserve to be punished for her actions. In order to understand why this is so, it is useful first to consider various incorrect or potentially misleading explanations frequently given in support of the defense.

First, some courts have suggested that a coerced actor lacks the requisite mens rea to be convicted of an offense.²² Exceptional circumstances aside, however, this explanation is false.²³ Ordinarily, one who acts under duress intends to cause the result in question, for the simple reason that she wants to avoid the harm threatened by the coercer. Therefore, a coercive threat creates the intent; it does not...