Introduction

The Duress Defense

Introduction

Mary lives in a mountain village in a cocaine-producing region that a paramilitary group, designated by the State Department as a terrorist organization, controls in practice. A local commander orders her to smuggle a load of cocaine into the United States. When she refuses, he tells her she can do as he asks or he will kill her and her entire family. Because the threat is so credible, Mary agrees, is detected at customs, and is charged with attempted importation of narcotics, conspiracy, and providing material support to a terrorist organization.¹ Measured against the statutes, she has committed each offense, since she knowingly carried out the plan the crimes describe. Yet almost no one would place her in the same moral position as a trafficker who smuggles for profit, and that gap raises the question the criminal law must answer: when a person commits a crime only because someone threatened to kill her or her family, does the law still blame her?

The Model Penal Code answers in § 2.09(1). It makes duress an affirmative defense, meaning a defense the accused raises in response to a charge the prosecution may be fully able to prove. The defense applies when the actor engaged in the charged conduct because he was coerced by the use of, or a threat to use, unlawful force against his own person or the person of another, and a person of reasonable firmness in his situation would have been unable to resist.² Two working pieces sit inside that text. The first is coercion by unlawful force, which asks what kind of threat counts and whom it may be aimed at. The second is the reasonable-firmness test, which sets how much resistance the law demands before it will excuse. Mary's facts press on both: a threat to kill her and her family is a threat of unlawful force against herself and others, and the remaining question is whether a person of ordinary firmness in her village could have refused.

The common law reached its answer through a longer list of requirements, among them an honest and reasonable fear of immediate harm, no fault by the defendant in creating the situation, and a rule that duress is no complete defense to murder.³ Section 2.09 has four subsections, and this chapter takes them up in turn.⁴ The defense is built in layers: first the kind of defense duress is, then the coercion that counts, how firm is firm enough, when the actor's own fault forfeits the defense, how homicide is treated, and how duress sits beside necessity. All of that rests on a prior question about where the defense belongs in the structure of criminal liability. If Mary has done everything the crime requires, with both the forbidden act and the intent behind it, what kind of defense could still relieve her of liability? The first section answers by explaining why duress is classified as an excuse.