Excuse: Duress

Why do we have the law of duress? Its justification has been as controversial as its scope. One simple justification is due to Thomas Hobbes, the seventeenth-century political philosopher and author of Leviathan. According to Hobbes, we grant the duress defense because it simply would not do any good to threaten someone subject to duress with punishment. He would still not be moved to act any differently. "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 . . . [for] a man would reason thus: If I do it not, I die presently; if I do it, I die afterwards; thereby by doing it, there is time of life gained" (Part 2, Chapter 27). This is not a very satisfactory line of argument. First, it is not true that the defendant who is subject to duress cannot be deterred from committing a crime. If the punishment threatened is more severe than the ill treatment being threatened by the criminal, deterrence is possible. Some situations of duress involve threats against someone's family. If the law countered by threatening the man with a lengthy prison sentence, he might well desist the temptation to save his family by committing a crime. Sir James Stephens, the famous nineteenth-century criminal law commentator, famously put the matter thus: "Surely it is at the moment when the temptation to [commit] the crime is strongest . . . that the law should speak most clearly and emphatically to the contrary" (Kadish and Schulhofer, p. 901). In addition, there is the fact that we do not punish merely to deter, but to mete out just retribution. Thus it really is irrelevant that the defendant acting under duress cannot be deterred. The question is whether he deserves to be punished.

A second justification offered for the duress defense is that the defendant does not deserve to be punished because he did the right thing. If I am threatened with being killed unless I help out in a burglary, is it not perfectly appropriate for me to commit the burglary? Isn't preserving my own life more important than preserving someone else's property? Given the choice between two evils—my death or someone else's being burglarized—isn't the burglary the lesser of those evils? There are three difficulties with this way of justifying the duress defense. First, we do not actually need the duress defense to exonerate the defendant who breaks a law when doing so is the lesser of two evils. The criminal law recognizes a separate defense, sometimes referred to as the choice-of-evils defense, sometimes as the defense of necessity, which provides that "conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable [if] the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged" (MPC, Section 3.02(a)). A second difficulty with this way of justifying the duress defense is that many duress cases do not involve defendants who chose the lesser of two evils. The duress defense might well be claimed by someone who helped kill several persons in order to save his own life. He clearly did not choose the lesser of two evils; but he still might merit being excused. A third difficulty with saying the defendant did the right thing is that we are not really moved to let the defendant off because he did the right thing even if he did the right thing, but because we feel sorry for him and are inclined to forgive him for having yielded to intolerable pressure.

A third rationale sometimes proposed for the duress defense is that somehow what the defendant did was not fully voluntary. He was in the thrall of some other person. As the British case Regina v. Hudson put it, "the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged offense [is] no longer the voluntary act of the accused" (Regina v. Hudson 2 All E.R. 244, 246 (C.A. 1971)). But to many commentators this does not make much sense. A person facing a terrible choice is not lacking in volition, he is lacking in good choices. A person choosing to escape execution by executing someone else is not like someone acting out of reflex, or in an epileptic seizure, or during a hypnotic trance. Those are instances of genuinely involuntary behavior. Not so the person acting under duress.

A fourth rationale for the duress defense simply argues that it would be unfair to punish someone for failing to stand up to the extraordinary pressure exerted during a situation of duress. The law cannot ask people to be heroes. As the Model Penal Code commentary puts it, it would be unfair to punish if "judges are not prepared to affirm that they . . . could comply with the law if their turn to face the problem should arise" (Section 2.09(2)).

A final rationale offered for the duress defense is that the defendant in such cases is usually displaying extremely laudable character traits. If he is committing a crime to protect his family, he is showing the kind of filial devotion that we generally admire. If he is committing the crime to protect his own life, he is showing an instinct for self-preservation that we think on the whole desirable. It is true that under the circumstances these laudable character traits are prompting him to act in not so laudable ways. But that just shows that a proclivity to commit bad actions under special circumstances is the price of having a generally good character. That, the argument goes, should lead us to excuse the defendant as a kind of noble miscreant.