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agent-neutral, lesser-evil form of justification that extends to all persons who view the situation similarly.

2. Expanding Duress

The excuse of duress must and should be expanded beyond its typical doctrinal formulation illustrated by the Model Penal Code. First, it should cover the kind of threat posed by innocent aggressors, swords, shields, and bystanders. As we said, in a large number of cases of this kind, D’s defensive risk imposition cannot be deemed justified. D nonetheless should not be deemed culpable if the risk she or loved ones face is sufficiently grave and good alternatives to defensive risk imposition are unavailable. And D should be excused and deemed nonculpable for the same reason that we excuse those who commit crimes because they are threatened with serious harm. In both cases, there is a threat of serious harm that can be averted only by imposing a risk on an innocent party or parties. In the case of the innocent aggressor, the innocent party on whom the defensive risk is imposed is the aggressor herself. In duress, it is one who is not any sort of a threat. But both, along with swords, shields, and bystanders, are innocent victims of the bad situation in which D finds herself.

So the duress excuse should be reformulated to handle innocent threats. Moreover, there is no reason why the threat that causes D to impose a risk on V be “unlawful.” It is true that in the paradigm case of duress, T’s threat to D is unlawful. But that does not bear on why D gets the excuse. D’s choice is no less a hard one, and D’s personal reasons are no less compelling, where D is “threatened” lawfully with a grave harm. (Suppose D is “threatened” with lawful execution and beats up the executioner in an attempt to escape.)63 After all, in the paradigm case of duress, we excuse D for externalizing the unlawful threat to her onto the lawfully acting V. There is no moral difference between D’s imposing a defensive risk on “lawful” V and D’s imposing it on “lawful” T. Any threat that if

63Would it matter if D were not the condemned but a close family member? Not necessarily, although it might be easier for the “person of reasonable firmness” to refrain from killing the law executioner of a family member than to refrain from killing an innocent aggressor against the family member, and easier to refrain than it would be for the condemned himself. See Alexander, supra note 46, at 1490–1491.

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unlawful would support an excuse of duress should support that excuse when the threat is lawful. The one trolley worker on the siding would not be justified in shooting to stop the “switcher” if aware that five workers will die if he succeeds; but he should be arguably excused for the same reason he would be in shooting five innocent aggressors. Arguably, so also should the one worker’s spouse be excused in shooting the switcher even though the spouse would not be socially justified in doing so.

For similar reasons, duress should not be limited to avoidance of human threats. Suppose D is threatened by passenger T that if D does not keep driving and run over the three babies who have been left on the highway, T will shoot D and kill her. If D gets the defense of duress for running over the babies, then she should get it if she is faced with death from a landslide if she does not run over the babies. The fact that one threat has a human source and is illegal, whereas the other threat is from a natural source, is completely immaterial for purposes of D’s culpability. D’s reasons for imposing the risk on the babies – to save her life – is the same in both cases and should be all that matters.64 (Consider whether it would be sensible to distinguish these three reasons D has for running over the babies: (1) T has threatened to start a deadly landslide if D does not run over the babies; (2) T has started the landslide, which will prove deadly to D if D does not run over the babies; (3) the landslide has started because of natural causes, and it will prove deadly to D if she does not run over the babies.) An upshot of this is that in Surgeon, although Surgeon is not justified in carving up the patient to save the five who are dying, the latter might be excused for coercing Surgeon to do so (or Surgeon might be excused if the five were his children).

64Occasionally it is suggested that the limitation of duress to unlawful threats is premised on the idea that there should be someone to hold liable if D imposes an unlawful risk on someone. If D is not to blame because of duress, at least we can convict D’s coercer. See Model Penal Code § 2.09 cmt.3 (1985).

This suggestion is just plain silly. Sometimes, tragically, bad things happen for which no one is to blame. Ada mistakenly concludes that Sam is about to kill her and kills him in self-defense. Neither Ada nor Sam is blameworthy, and Ada should not be deemed criminally liable.

Likewise, in the case of duress, it should not matter whether it is T, the threatener, or a landslide that threatens D. And if it is T, it should not matter whether T acted culpably. T himself might be laboring under a misapprehension that defeats ascribing culpability to him for threatening D. Or T might be insane. And so on. Sometimes there just is no one to blame for tragic situations.

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The excuse of duress should also be reformulated to cover cases where D defensively imposes the risk on T, the threatener, rather than on V. Imagine that T threatens D with death unless D kills V. D kills T instead. T was not in the ordinary sense “coercing” D to kill T. And it was not necessary for D to kill T in order to avoid a likely death, for D could have killed V instead. Moreover, T may not have been a CA (he may have been insane or an innocent dupe). Surely, however, if D would be excused for killing V, she should be excused for killing T.65

Finally, the excuse of duress should be reformulated so that the triggering threat need not be one of inflicting death or bodily injury on D or D’s family. These will typically be the kinds of threats that will induce the person of reasonable firmness to commit crimes – the kind of threats that will personally but not socially justify his doing so. Consider, however, a threat to withhold life-saving medication, or even a threat to destroy an artistic masterpiece that someone devoted her entire life to creating. Neither threat is a threat to inflict death or bodily injury. The first is a threat of death, but not a threat to inflict it. The second is not a physical threat of any type. Yet surely they are capable of personally, if not socially, justifying otherwise criminal acts. The person of reasonable firmness would likely fear death through withholding medication as much as death by other means and so should be excused for, say, shooting an insane person who is absconding with D’s life-saving medications, or for stealing from an innocent person in response to T’s threat to otherwise destroy the medication; and she might fear loss of her lifetime creation more than death itself.66

In sum, D should be excused for imposing a risk on V that is not consequentially justified or that violates a deontological constraint if, on the basis of the gravity of the risk that D otherwise faced, discounted by its likelihood, and taking into account the feasibility, costs, and risks of any alternatives, D had sufficient personal reason so to act.67 Obviously,

65Cf. Joshua Dressler, “Battered Women Who Kill Their Sleeping Tormenters: Reflections on Maintaining Respect for Human Life While Killing Moral Monsters,” in Criminal Law Theory: Doctrines of the General Part 259 (Stephen Shute and A. P. Simester, eds., 2002) (advocating a duress defense when battered women kill their abusers in nonconfrontational settings).

66See Alexander, supra note 46, at 1492.

67If D takes an unjustified risk of landing in a situation where he is likely to be coerced into committing crimes – say, by joining a criminal gang – he should not lose the defense of

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the excuse will turn not only on the severity and likelihood of the threat to D but on the gravity of the risk D must impose on others to avert the risk. The threshold for the person of reasonable firmness to impose a risk of death should be much higher than the threshold for imposing, say, a risk of property loss.

The excuse we conceptualize extends beyond the current excuse of duress and current justification of self-protection in various ways indicated by our criticisms of these doctrines. It extends to attacks on innocent shields and bystanders. It extends to crimes committed in response to lawful as well as unlawful threats. It extends to crimes committed in response to threats to injure other than by force. And it would extend to cases of situational duress, that is, cases where the crime is committed to escape a nonhuman threat. In these cases (situational duress), the actor’s act would not be preemptive in the sense of anticipating a human choice, though it would, of course, rest on a prediction about future events and be preemptive in that sense. Finally, like the current defense of duress, the proposed excuse extends beyond protection of the actor himself to include protection of immediate family members and any other persons (and perhaps, in some cases, animals or even possessions) whom a “person of reasonable firmness” would commit a crime in order to protect.

3. Duress, Preemptive Action, and Proportionality

Like the lesser-evil justification and its corollary defense against culpable aggressors, the excuse of duress involves preemptive action to avert a threatened harm. D imposes a risk on V to avert a threatened harm from the threatener T. Duress therefore requires the same calculations that these other preemptive risk impositions involve: D must decide how likely the threatened harm is if she refrains from imposing a risk on V. Is T bluffing? Did T forget to load the gun? Is the gun jammed? Is T a good shot? What are the risks of waiting? Is there an alternative

duress if so coerced. At that point, he may lack culpability for what he does. Rather, he should be deemed culpable for the initial act of placing himself in the risky situation – just as we would hold someone culpable for unjustifiably risking a situation where a lesserevils choice is warranted – but not culpable for the lesser-evils choice itself. We thus disagree with the Model Penal Code’s treatment of such recklessness in the context of duress. See Model Penal Code § 2.09(2) (1985).