Excuse: Duress

What sort of threat will justify the invocation of the defense? First, the threat has to be quite serious. It will not suffice for the defendant to say that unless he had agreed to help another man break into a bank, the man would have taken some of his own property. Second, the threat has to be illegal. It will not suffice for the defendant to say that unless he had committed a bank robbery, he would not have had the money to repay his mortgage and would have lost his house. Third, the threat has to be directed either at the defendant or at a member of the defendant's family. What if it is the daughter of a close friend of the defendant whom the defendant is acting to protect? That's probably not enough for a valid duress claim.

A fourth and quite puzzling aspect of the threat is that it has to have a human source to trigger the duress defense. In other words, it is not enough that the defendant finds himself in a situation in which terrible harm will befall him unless he commits a crime. The terrible harm that might befall him must emanate from a human threat. To see what that means, consider the case of a driver whose car has been commandeered by an escaping prisoner, and who is being forced at gunpoint to drive that prisoner to his hideout. As he is heading down a narrow mountain road at breakneck speed, he comes across a drunk lying in the middle of the street. He would like to stop to push the drunk aside, but the escaping prisoner says he will shoot the driver unless he keeps driving, and so he runs the man over. If the driver is later charged with murder, he might well qualify for the duress defense. But suppose instead that when the driver is heading down that mountain road there is no escaping prisoner by his side trying to prevent him from stopping. Unfortunately, however, his brakes are not working; and if he were to try to avoid hitting the drunk by swerving he would plunge into the adjacent abyss. Not wanting to die, he runs the drunk over instead. If he is later charged with murder, he would almost certainly not qualify for the duress defense, because the threat of death that he averted by killing emanated not from a person but from "nature." Yet in a sense there is not all that much of a difference between the two situations. In both the driver is confronted with the choice between killing the drunk on the pavement or dying himself (in the first situation, by being killed by the escaping prisoner, and in the second situation, by falling into the abyss). Nevertheless in the one case, the terrible choice he faces will excuse him, but in the other case it will not.

Why should the source of the threat make a difference? A typical if not wholly satisfactory answer is provided by the drafters of the Model Penal Code: "There is [this] significant difference between the situation in which an actor [commits a crime] under the threat of unlawful human force and when he does so because of a natural event. In the former situation, the basic interests of the law may be satisfied by prosecution of the agent of unlawful force; in the latter circumstance, if the actor is excused, no one is subject to the law's application" (Section 2.09(3)). In other words, if the threat is human, there will generally be someone for us to punish, the person who issued the threat. But if the threat is "natural," then the only human agent available for punishment is the defendant. Not everyone has been convinced by this reasoning. Why does it matter whether there is or is not someone for us to punish, they ask. Isn't the only relevant question whether the driver who faces a terrible choice really deserves to be punished?