Duress and culpability

Suppose Smith knowingly drives the getaway car for a gang of bank robbers. This would normally be grounds for charging him with being an accessory to the crime of robbery. One way in which he might defend himself, however, is by convincing the court that he performed the act in question only because he was threatened with death if he refused. But why would establishing this be enough to eliminate his liability? The answer usually given is that the threat of death constituted duress and that duress negates culpability, an essential element of nearly every crime. (1) In this paper I hope to contribute to both the conceptualization and the moral assessment of duress, which is among the most controversial and philosophically interesting of all the criminal law defenses. In part I, I begin by examining the tangled issue of the relationship between this defense and that of necessity. I criticize both the traditional way of distinguishing the two (by reference to the source of the pressure on the defendant to violate the law) as well as attempts to assimilate one to the other. My central contention will be that duress constitutes a defense independent of necessity because, unlike the latter, it impugns the defendant's culpability without implying that his act was socially desirable. Whether this means that it should be classified as an excuse (the dominant contemporary view) will be explored in part II. There I critically analyze some recent attempts to demonstrate not only that duress should not be understood in this way but also that it cannot be accommodated by any of the categories in the traditional classificatory scheme for criminal law defenses. In the concluding section, I offer my own account of how duress functions to remove culpability, an account that, I argue, has some significant advantages over alternative proposals. I Distinguishing Duress from Necessity Compare the following two hypotheticals: (i) To prevent a raging forest fire from engulfing a town, Sam burns the MacGregor farm (without MacGregor's permission) in the hope of creating a firebreak. He is later charged with arson. (ii) The only way Mary can avoid being shot by Boris (who is holding a gun to her head) is by acceding to his demand that she burn MacGregor's farm. She does so and is then charged with arson. Sam would undoubtedly attempt to defend himself by claiming that he did nothing wrong inasmuch as he chose the lesser of two evils (and that there was no other, less costly, way of preventing the harm in question). Since this is a standard textbook illustration of necessity, (2) he would surely prevail in any jurisdiction which recognized that defense. Mary, on the other hand, would probably claim that she acted under duress and hence was not responsible for what she did. But what distinguishes the two defenses? It is true that Sam's act was the result of a "natural" threat and that Mary's was the result of a human one, but is that really significant? Given that the loss of property is universally conceded to be a lesser evil than the loss of life, Mary's choice to favor the latter over the former seems every bit as reasonable as Sam's. (3) The requirements of duress under the common law have been summarized as follows: D [the accused] will be acquitted of an offense other than murder on the basis of duress if he pleads and proves that: (1) C [some other person] unlawfully threatened imminently to kill or grievously injure him or another person; and (2) he was not at fault in exposing himself to the threat. (4) Does it follow, as some have claimed, (5) that duress is simply a species of necessity? In the first edition of his textbook, Understanding Criminal Law, Joshua Dressier argued that it does not: This may be seen by comparing the following two cases. In the first case [one of necessity], pedestrian D1 takes V's parked automobile without V's consent in order to drive a gravely ill child whom she finds in the road to a hospital. …