Fault in Creating the Threat

Fault in Creating the Threat

A defendant who shows coercion by unlawful force, and a threat that a person of reasonable firmness could not have resisted, has satisfied the two working elements of § 2.09(1). The Code then adds a limit in § 2.09(2) that asks about a different moment. The earlier elements look at the moment of the threat, and this limit looks at the moment the actor entered the situation. The defense is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. It is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.¹

The reason for the limit follows from what duress excuses. The defense rests on the premise that the actor is not to blame for the dilemma, since someone else created a choice between harm and crime. When the actor's own culpable conduct brought on the coercion, that premise is gone, and the law can fairly hold the actor to the earlier choice that produced the predicament. Tying the bar to culpability also keeps it proportionate. A bare causal contribution, such as having lived in a dangerous place, does not forfeit the defense. The actor must have been reckless about the risk of duress, and negligence will do only where negligence is enough to convict of the offense itself. That last limiter keeps the forfeiture in step with the charge, so the actor's careless entry into a bad situation cannot cost more than the offense's own fault requirement would demand. Students go wrong by asking whether the actor was at fault for the crime, when the question is fault in how the actor came to be in the situation.²

The common law reached a similar result through a looser condition. Its list of duress elements includes the requirement that the defendant not be at fault for putting himself in the situation, and the Code's subsection refines that general condition by specifying how culpable the actor's entry into the situation must have been.³ Mary, the villager in a cocaine-producing region whom a paramilitary commander threatens with the killing of her whole family unless she smuggles a shipment, shows the limit left unengaged. She had no hand in making herself vulnerable to the threat, so nothing in her earlier conduct undercuts the excuse.⁴ A single changed fact moves the analysis to the backward-looking question.

The two grades of fault are taken in turn below. Reckless exposure comes first, because it forfeits the defense for every offense, and negligent exposure follows, because its reach depends on the offense charged.

Reckless Exposure

The first limit in § 2.09(2) withholds duress from an actor who recklessly placed himself in a situation in which it was probable that he would be subjected to duress.⁵ The clause has two working parts, and each does a different job. Recklessness describes the actor's state of mind when he entered the situation: he was aware of a serious risk and went ahead anyway. Probability describes the situation itself, because coercion had to be a likely consequence of being there and not something that could merely be imagined. An actor who satisfies both parts helped create his own predicament through a culpable choice, and the Code treats that earlier choice as the one that counts, so the terror of the later threat does not rescue him.

The reason for tying the bar to recklessness follows from what the defense excuses. A person who consciously disregards a substantial risk of being coerced into crime, and goes ahead anyway, is to blame for the exposure itself. If that person could invoke duress once the foreseen threat arrived, the defense would reward the very risk-taking the law condemns, and anyone who joined a group that was known to coerce its members would be entitled to an excuse each time it issued an order.

The word probable has a separate function. Almost every association, job, or address carries some chance that someone will someday make a threat, so a bar triggered by a bare possibility would reach nearly everyone who ever accepted any risk and would leave the defense with almost nothing to protect. Requiring that duress be probable confines the bar to situations in which coercion was the likely result of the actor's choice, and remote or speculative risks therefore do not defeat the defense. The two parts also reinforce each other: the more plainly coercion follows from a situation, the easier it is to find that a person who entered anyway was consciously ignoring the risk.

The standard for measuring recklessness comes from Commonwealth v. DeMarco. The Pennsylvania Supreme Court there applied a statute derived from the Code that bars duress when the defendant recklessly placed himself in a situation where duress was probable, and it defined recklessness as the Code does. The actor must consciously disregard a substantial and unjustifiable risk, of such a nature and degree that ignoring it is a gross deviation from the conduct a reasonable person would observe in the actor's situation.⁶ That definition looks to the nature and purpose of the actor's conduct and to the circumstances known to him, which makes the test a hybrid of objective and subjective inquiries. The fact finder measures the defendant against a reasonable person, but it places that reasonable person in the defendant's own situation rather than in a generic one.⁷

This hybrid test echoes the one used for reasonable firmness. DeMarco explained that the fact finder must again take into account the stark, tangible factors that differentiate the defendant from other people and the salient situational facts surrounding him.⁸ Recklessness is therefore not judged in the abstract. What the defendant knew about the risk, what choices he had, and what his circumstances were all feed the question whether ignoring the risk was a gross deviation, and a person with no realistic way to avoid a dangerous setting stands differently from one who walked into it by choice.

This result matches the way courts have long treated defendants who join criminal groups. At common law the defendant must not be responsible for the threat, and one who knowingly joins a violent gang and later commits a crime under threat of immediate death from fellow members is denied the claim.⁹ The same rule bars a person who voluntarily enters a situation where duress is likely, such as by joining a criminal organization whose members are often ordered to commit crimes.¹⁰ Modern codes track the Code's formulation: close to all duress statutes make the defense unavailable where the defendant recklessly placed himself in a situation in which duress was probable.¹¹

A flat rule excluding every gang member invites a proportionality objection. Punishing someone for a serious crime he committed under real duress may exceed what his blameworthiness for joining justifies, unless the joining is causally tied to the crime, as when the recruit had heard that inductees were made to commit crimes and joined anyway.¹² The Code's text builds that link into the bar. Because the actor must have consciously disregarded a substantial risk, and the situation must have made duress probable, the reckless-exposure limb reaches the person who knew what the group did to its members. It does not reach a person who was unaware of any such danger.¹³

The bar also does not follow automatically from where a person lives or works. A resident of a neighborhood where a gang operates has not for that reason consciously disregarded a substantial and unjustifiable risk that coercion was probable, especially when the resident has no realistic means of leaving, and the hybrid test directs the fact finder to weigh exactly that kind of situational fact.¹⁴ Residing in a region where armed groups operate is likewise not, without more, an act of recklessly placing oneself in a situation of probable duress, which is why Mary, the villager threatened by the paramilitary commander, keeps her defense.¹⁵

Students lose this element in two directions. One error treats presence in a dangerous place as reckless exposure, which skips both the conscious disregard of a known risk and the probability of coercion. The other error overlooks the facts that supply those requirements, such as a warning from a recruiter, the sight of other members being forced, or a reputation the actor knew about, any of which can show that the actor saw the risk and went ahead.¹⁶

The reckless-exposure limb reaches only an actor who was aware of the danger. A person who should have seen the danger but did not has not been reckless, and whether that lapse still costs the defense depends on the offense charged, which the next subsection takes up.¹⁸

Negligent Exposure

The second sentence of § 2.09(2) adds a lower grade of fault to the forfeiture rule just discussed. The defense is also unavailable if the actor was negligent in placing himself in a situation in which it was probable that he would be subjected to duress, but only whenever negligence suffices to establish culpability for the offense charged.¹⁹ Negligence in this sense is a failure to notice a risk that a reasonable person in the actor's position would have noticed, so the clause reaches the actor who never saw the danger but should have. Because the clause is conditional, the condition does the real work. Whether careless entry into the situation costs the defendant the defense depends on the mental state that the charged offense itself requires.

The reason for tying the negligence bar to the offense is that it keeps two judgments of blame aligned. Consider what the legislature has already decided about the crime. If the offense can be committed negligently, carelessness alone is blameworthy enough to support a conviction, so carelessness in walking into a coercive setting is blameworthy enough to remove the excuse for that same offense. If the offense requires purpose, knowledge, or recklessness, the legislature has reserved punishment for conscious wrongdoing. Letting mere inattention to a risk of coercion override the excuse in that setting would rest the forfeiture on a lower grade of fault than the offense itself demands, and the actor would lose the defense on a weaker showing of blame than a conviction requires.

The clause therefore turns on one variable, the mental state of the charged offense, while the exposure and the coercion stay constant.

Two points keep the clause in proportion. The negligence clause does not replace the reckless-exposure limb, which applies to every offense, so a defendant charged with a knowing offense who entered the situation recklessly still loses the defense. And for offenses that require purpose, knowledge, or recklessness, negligence does not suffice to establish culpability, so the second sentence of the subsection stays silent and the ordinary elements of duress govern.²⁰

Not every adopting state keeps the clause. Close to all duress statutes bar the defense for reckless exposure, and only a few go on to add a negligence bar for offenses that negligence suffices to establish.²¹ Where a state does add one, the phrasing can shift. New Jersey's duress statute, quoted in State v. B.H., speaks of criminal negligence rather than negligence, and it applies that bar only whenever criminal negligence suffices to establish culpability for the offense charged.²²

Students go wrong when they treat any carelessness in entering the situation as forfeiting the defense, which skips the question of what mental state the charged offense requires. The opposite error stops at the reckless-exposure clause and overlooks the negligence clause when the stem charges an offense that can be committed negligently, such as a negligent-release or negligent-endangerment statute.

With both grades of fault in view, the limits of § 2.09(2) are complete. They apply whatever offense the defendant is charged with, and a separate question arises when the charge is homicide, which the next section takes up.