Excusing behavior: reclassifying the federal common law defenses of duress and necessity relying on the victim's role.

• Author: Bedi, Monu

1. INTRODUCTION

   Much has been written on the affirmative defenses of duress and necessity, (l) Necessity typically involves a defendant arguing that he committed the crime in order to avoid a greater harm created by natural forces. (2) Duress usually entails a defendant arguing that he committed the crime in order to avoid unlawful physical threats made by a third party. (3) Neither defense negates a defendant's mens rea or criminal state of mind; rather, these defenses serve to "negate[] a conclusion of guilt." (4) The defendant thus typically bears the burden of proving these affirmative defenses. (5)

   Scholars have extensively examined whether necessity and duress are properly understood as excused or justified acts. (6) These quasi-legal labels seek to capture the overall nature of such defenses. A justification defense exculpates otherwise criminal conduct because the conduct is not wrongful and benefits society or is socially useful. (7) An excuse defense also exculpates otherwise criminal conduct, only this time the conduct is deemed wrongful, but the defendant is not blameworthy because of the specific circumstances surrounding the offense. (8) Most scholars classify duress as an excuse and necessity as a justification. (9)

   Despite this wealth of scholarship, few have focused on how federal courts analyze these affirmative defenses. (10) To the extent scholars have examined the application of these defenses, not surprisingly, they have limited themselves to state law or related jurisprudence. (11) Federal criminal jurisdiction is restrictive and thus precludes many crimes where duress and necessity would naturally be invoked. (12) Still, it is worthwhile to focus on this subset of cases, even if it represents a smaller pool. Surveying federal common law on the subject provides a unique perspective that may better inform our understanding on how to classify duress and necessity.

   The first part of this Article examines how federal courts have analyzed duress and necessity during the liability phase, as well as how sentencing judges have departed from the U.S. Sentencing Guidelines based on these affirmative defenses. Federal courts by and large have applied the same standard when examining the permissibility of these defenses. Some federal courts have gone further and explicitly adopted a consolidated definition for these two defenses in the context of certain crimes. This treatment suggests that duress and necessity (at least as interpreted by federal courts) should be categorized together as either excused or justified acts.

   The second part of the Article focuses on the conceptual framework behind classifying these defenses. In light of federal jurisprudence, we need to reexamine the methods criminal theorists have used to distinguish necessity and duress. This Article synthesizes and evaluates the five main theories on the subject, which focus on the defendant and what he does. These prominent theories include appealing to the type of harm the defendant causes, his particular state of mind, whether he deserves aid from another, whether his behavior conforms to a public norm, or whether his actions are warranted. Each relies on unique methodology intended to distinguish excused from justified acts. However, none of these approaches provides a comprehensive theory that accurately captures the nature of duress and necessity. Nor does any of them preserve our intuitions when used to analyze other affirmative defenses such as self-defense and insanity.

   The main problem is that theorists have focused too heavily on the defendant. In doing so, they have left out the victim--the central figure who suffers the harm. This Article seeks to change this defendant-oriented perspective when it comes to classifying duress and necessity. It posits an alternative theory that centers completely on the victim's role in the crime. As the person who was harmed by the defendant's conduct, the victim should be our focus when morally judging the defendant's conduct. Where the victim played a direct role in what happened, the defendant's act of necessity or duress is better classified as a justification, and where the victim innocently suffered, the defendant's act is better classified as an excuse. This emphasis on the victim's culpability in the criminal act provides a more consistent and intuitive approach to understanding the distinction between justification and excuse. It also properly places duress and necessity in the same category as excused acts.

   The Article consists of eight parts. Parts II through IV explore how federal courts define and analyze duress and necessity during the liability phase of trial. Part V specifically addresses how courts have interpreted these defenses under the U.S. Sentencing Guidelines. Part VI focuses on the basic concepts of excuse and justification and how federal courts analyze the defenses of self-defense and insanity. Part VII critically examines the methods by which scholars classify necessity and duress, including why they usually classify the former as a justification and the latter as an excuse. Part VIII presents a victim-based theory that explains why both defenses are more appropriately classified as excused acts.

2. FEDERAL JURISPRUDENCE ON DEFINING AND ANALYZING THE AFFIRMATIVE DEFENSE OF NECESSITY

   1. SUPREME COURT JURISPRUDENCE

      The first reference to necessity as a defense to a violation of law appears to come from admiralty cases. (13) In Brig Struggle v. United States, for instance, the Supreme Court heard a case involving an American registered vessel that violated certain commercial laws by making port in the West Indies without making the appropriate bond to the United States. (14) The claimant relied on the defense of necessity, arguing that based on unexpected inclement weather, he was forced to port in the West Indies to protect the cargo and the lives of the crew. (15) While the Court recognized the permissibly of this defense, it noted that the claimant must provide sufficient evidence that his actions were necessary. The Court ultimately rejected a necessity defense on the instant facts because the proffered evidence did not support the purported "magnitude of injuries" or "imminence of the danger to ... the vessel and crew." (16)

      United States v. Kirby seems to be the first Supreme Court case that discussed, albeit as dicta, the necessity defense in the criminal context. (17) The Court reasoned that to prevent injustice or "absurd consequence[s,]" common sense sometimes requires exceptions to the application of laws. (18) Referencing a law that punished a person who "drew blood in the streets," the Court stated that this law should not apply to a surgeon who "opened the vein of a person that fell down in the street in a fit." (19) Similarly, the Court noted that a prisoner who breaks out of a jail that is on tire should not be guilty of a felony because he tried to avoid getting burnt. (20)

      It was not until United States v. Bailey that the Court explicitly discussed the contours of the necessity defense and applied it to the facts at hand. (21) The defendants were convicted of escaping from federal prison. (22) One of the issues before the Court was whether the defendants were entitled to a jury instruction on necessity based on the threats of death by prison guards and other severe conditions at the prison that purportedly prompted their escape. (23) The Court defined necessity as a "choice of evils ... where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils." (24) The Court reasoned that "where A destroyed [a] dike in order to protect more valuable property from flooding, A could claim a defense of necessity." (25) The Court went on to say that this defense is only available where there is no "reasonable, legal alternative to violating the law." (26) Without deciding the issue of whether the defense of necessity can be invoked for prison escape, the Court concluded that the defendants were not entitled to the defense on the instant facts. (27) The Court found that the defendants made no effort to surrender or return to custody after their escape and therefore could not avail themselves of the necessity defense. (28)

      In United States v. Oakland Cannabis Buyers' Cooperative, some twenty years later, the Supreme Court revisited the necessity defense. (29) The case involved a cooperative organization that was distributing marijuana to patients pursuant to a California initiative but in violation of the federal Controlled Substance Act. (30) The cooperative contended that providing this marijuana was medically necessary and the only way to alleviate the "severe pain and other debilitating symptoms of [its] patients." (31) The Court first noted that it is an "open question whether federal courts ever have authority to recognize a necessity defense not provided by stature." (32) Relying on United States v. Bailey, the Court defined such a defense as a situation where physical forces beyond the defendant's control made him commit the lesser of two evils. (33) The Court went on to say that the defense could not succeed in the instant case where the relevant statute "le[ft] no doubt that the defense is unavailable." (34) The Court found that even though the Controlled Substances Act did not explicitly preclude a necessity defense, the statute reflects "a determination that marijuana has no medical benefits worthy of an exception.'" (35)

   2. FEDERAL CIRCUIT JURISPRUDENCE

      Federal circuits have further elaborated on the contours of the necessity defense. A typical characterization of the defense includes the following requirements: (1) "[the defendants] were faced with a choice of evils and chose the lesser evil; (2) they acted to prevent imminent harm; (3) they reasonably anticipated a direct causal relationship between their conduct and the harm to be averted; and (4) they had no legal alternatives to violating the...