Excuse: Duress

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EXCUSE: DURESS

The defense of duress is typically invoked when someone has been pressured into committing a crime by another person's threat. According to the Model Penal Code, an actor is excused in committing a crime if "he was coerced to do so by the use, or the threat to use unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist" (Section 209(1)). The defense has been raised, for instance, by a chiropractor who claimed to have been forced to file false medical claims in behalf of a gangster who threatened to kill him otherwise. It was raised by a wife who claimed that the only reason she helped her husband commit a bank robbery is that he would have killed her if she had not. It was raised by a drug smuggler who was caught with several cocaine-filled balloons in his stomach: he argued that both he and his family would have been killed if he hadn't done as he did. Likewise for the driver of the getaway car in a terrorist hit; and the member of a Trinidad commune who killed the girlfriend of another commune member on the instructions of the commune leader. In each of these cases the perpetrator of a serious crime insisted that the duress of being threatened with death, or of seeing his family threatened with death, should excuse him and should result in his acquittal.

The defense has an ancient lineage. It was already recognized in Roman law. Renowned commentators—Blackstone and Hale, for example—and countless judges over the centuries have treated it as a well-established part of the common law. Yet despite this ancient lineage, there are periodic calls for its abolition and persistent questions about its scope and rationale.

The nature of the threat

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?

The nature of the crime

Some think that duress, if it is sufficiently severe, will excuse any crime. According to the traditional common law position, however, killings, and maybe even treason, can never be excused by duress. In recent times, this issue was most vividly posed in Lynch v. Director of Public Prosecutions, the aforementioned British case involving someone who had been pressured by terrorists to drive their getaway car for them while they executed their hit, and in Abbot v. The Queen, another British case, this one involving the member of a commune who had been pressured by the commune's leader to kill the girlfriend of another fellow member. In several lengthy opinions, the House of Lords worried that if we fail to excuse someone who kills because he will otherwise himself be killed we are essentially punishing people for not being heroes, and that seems unduly exacting. On the other hand, if we fail to punish we may be giving a

charter to terrorists, gangleaders and kidnappers. A terrorist of notorious violence might, e.g., threaten death to A and his family unless A obeys his instructions to put a bomb with a time fuse set by A in a certain passenger aircraft and/or in a thronged market, railway station or the like. A, under duress, does obey his instructions and as a result, hundreds of men, women and children are killed or mangled. Should the contentions made in behalf of [the defendant in this case] be correct, A would have a complete defense and, if charged, would have to be acquitted and set at liberty. Having now gained some real experience and expertise, he might again be approached by the terrorist who would make the same threats and exercise the same duress under which A would then give a repeat performance, killing even more men, women and children. Is there no limit to the number of people you may kill to save your life and that of your family? (Abbot v. The Queen ; quoted in Katz, p. 68)

For a while the House of Lords split the difference, by granting a duress defense to those who merely assisted in a killing, like Lynch, but denying it to those who actually committed the killing, like Abbott. That difference came to seem too unprincipled and was later abandoned; the duress defense was once more unavailable for all cases involving homicide, whether the defendant had participated in the killing as a principal or as a mere accomplice.

Controversy has also surrounded the availability of the duress defense to prisoners who break out of prison to escape threatened rapes, assaults, or other unbearable aspects of prison life. Technically the duress defense is a little hard to apply to such cases, since the fleeing prisoner is not really being coerced into fleeing, but rather is simply fleeing to avoid being raped, beaten, or killed. But this is not the main thing that has worried courts in granting the defense. Their real worry is a practical one, namely that granting it would unduly encourage prison escapes (People v. Unger ; People v. Harmon ; People v. Lovercamp ). The Model Penal Code, and the American jurisdictions that follow it, do not exclude any crime from the scope of the duress defense.

The mistaken defendant

What if the defendant is mistaken in thinking he is being threatened? Suppose he misunderstood; suppose he mistakenly read menacing implications into an adversary's genuinely innocent remark that "he hoped he would have a long and healthy life." If his mistake is reasonable, he is probably still entitled to claim the defense. A reasonable misunderstanding is generally deemed deserving of protection. But what if he was unreasonable? What if a reasonable person would not have dreamed of reading a threat into such innocuous language? Some jurisdictions would then automatically deny him the defense. Others take a more refined approach. They allow the defendant to invoke the defense if he is charged with intentional wrongdoing, but not if he is merely charged with an offense involving unreasonable risk-taking. So, for instance, if someone commits a murder under the unreasonable misimpression that he will be killed unless he does so, he would still be entitled to plead duress. But suppose he is merely charged with manslaughter (which is usually understood to refer to reckless killings); he would then not be able to invoke the defense. That makes good sense: when he intentionally killed someone under the unreasonable misimpression that if he did not do so he would himself be killed, he committed the equivalent of an unexcused, reckless killing.

The semiculpable defendant

Courts have also been much troubled by the case of the defendant who has kept bad company and thus gotten himself into the situation where someone thinks to bear pressure on him to commit a crime: the defendant who joins a gang and is then rightfully fearful about leaving it or about not doing what is asked of him, lest he be killed in retribution. Some jurisdictions deny the duress defense altogether in such cases, in which, as the Model Penal Code puts it, "the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress" (Section 2.09(2)). Other jurisdictions grant the excuse in cases of intentional wrongdoing, but deny it for crimes of recklessness. (In other words, the defendant can plead duress to a charge of murder, but not to one of manslaughter; he can plead it to a charge of mayhem, but not to one of reckless endangerment.)

Of course there will be considerable disagreement over whether the defendant is being subjected to duress because he "recklessly placed himself in a situation which it was probable that he would be subjected to duress." Should Abbott, the man who joined that Trinidad commune whose leader asked him to kill the girlfriend of another commune member, be judged to have done so? Should the prisoner who flees prison in the face of an impending rape or assault be so judged? (After all, he committed crimes that made it not unlikely that he would be caught and put in the company of other dangerous criminals.) The answer is unclear.

The unreasonably fearful defendant

What if the defendant just is not very courageous, in fact is neurotically fearful and easily moved to commit a crime even just to escape a threat that someone else with more fortitude might have withstood? Usually, the law will then deny him the defense. The law insists on a reasonable amount of fortitude. To be sure, there is some elasticity in the way many codes are written. The Model Penal Code refers to threats that "a person of reasonable firmness in the [defendant's] situation would have been unable to resist." The reference to the defendant's situation allows us to consider many of the circumstances that might make someone unusually fearful—"stark, tangible factors that differentiate the actor from another, like his size, strength, age, or health," as the Model Penal Code (Section 2.09(1)) puts it—but it is certainly not meant to include the fact that the defendant just happens to be possessed of an unusually pusillanimous temperament. Still, there are many mysteries about which circumstances should be taken into account in judging the reasonableness of the defendant's submission to a threat. Consider the hypothetical scenario posed by one commentator about "Frieda, an aspiring novelist [with] a day job in a jewelry store. Clarice steals the only manuscript copy of the novel Frieda has been working on for seven years, and threatens to destroy it unless Frieda leaves the store's door unlocked and the burglar alarm off so that Clarice can burglarize it (which Clarice proceeds to do)" (Kaplan et al., p. 681). Ordinarily we would expect a reasonable person to tolerate the destruction of a piece of his property rather than commit a crime. Are we to take into account Frieda's special hopes and ambitions in judging her? The answer is not obvious.

The imminence of the threat

Suppose the defendant is told that unless he helps a would-be bank robber, he is going to be killed some months in the future. Many codes would refuse the duress defense because the threat is not imminent. It is unclear why. Sometimes the imminence requirement is justified on the grounds that there are things that can still be done to avert a nonimminent threat. But of course that need not always be true. An alternative justification for the imminence requirement is that unless a threat is imminent, a reasonable defendant just would not feel pressured enough to commit a crime.

Brainwashing

Master Sergeant William Olsen was captured during the Korean War by the Communist forces in late 1950 and taken to the Kangye prisoner of war camp. There the Chinese who ran the camp set out to "reeducate" him and his fellow prisoners as to the true nature of the war, namely that "they were the victims of the warmongers and were the aggressors in Korea" (U.S. v. Olsen, 20 C.M.R. 461 (1955)). This "reeducation" was in no way haphazard. It was systematic and relentless, involving countless hours of lecturing, group discussion, and interrogation. The Chinese called this treatment of the POWs "lenient policy," because it was short on threats and long on "persuasion." Over the course of the war, it proved remarkably successful. It got American POWs to do things the Germans during World War II had never gotten them to do. They informed on each other, frustrated each other's escape attempts, and in one way or another almost all collaborated with the enemy. The capstone of the Chinese strategy was "start small and build," a technique that the psychologist Robert Cialdini describes thus:

Prisoners were frequently asked to make statements so mildly anti-American or pro-Communist as to seem inconsequential. ("The United States is not perfect." "In a Communist country, unemployment is not a problem.") But once these minor requests were complied with, the men found themselves pushed to submit to related yet more substantive requests. A man who had just agreed with his Chinese interrogator that the United States is not perfect might then be asked to make a list of these "problems with America" and to sign his name to it. Later he might be asked to read his list in a discussion group with other prisoners. "After all, it's what you believe, isn't it?" Still later, he might be asked to write an essay expanding on his list and discussing these problems in greater detail.

The Chinese might then use his name and his essay in an anti-American radio broadcast beamed not only to the entire camp but to other POW camps in North Korea as well as to American forces in South Korea. Suddenly he would find himself a "collaborator," having given aid and comfort to the enemy. Aware that he had written the essay without any strong threats or coercion, many times a man would change his image of himself to be consistent with the deed and with the new "collaborator" label, often resulting in even more extensive acts of collaboration. (Cialdini, p. 76)

The issue that arose in the aftermath of the war was whether soldiers who had committed treason might argue that "brainwashing" of the kind Cialdini here describes constitutes a kind of duress. Generally courts have refused to extend the notion of duress this far. After all, the kind of "coercive persuasion" involved usually did not contain actual threats of physical harm—that's what makes it brainwashing. But many commentators have insisted that in at least some such cases the defendant comes to be so far in the thrall to some power as to warrant the invocation of the excuse nonetheless. The most famous recent case in which duress-by-brainwashing was unsuccessfully argued is that of Patty Hearst, the newspaper heiress, who was kidnapped by a group calling itself the Symbionese Liberation Army and who let herself be "persuaded" to participate in a bank heist. Since she was not actually forced to participate, but did so "voluntarily," she was denied the duress excuse.

Superior orders: husbands and wives

A soldier who knowingly obeys an illegal order from a superior will not be able to invoke the duress defense, unless he was threatened with great physical harm for disobedience. Strangely enough, in days of yore, a wife who obeyed her husband's order to commit a crime, automatically was granted the duress defense. That rule has now been entirely repudiated.

Rationale

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-centurycriminal 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.

Leo Katz

See also Actus Reus; Excuse: Theory; Justification: Necessity; Justification: Self-Defense; Mens Rea; Prisons: Problems and Prospects.

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