Duress is Not a Justification
Cardozo Law School
Ohio State Journal of Criminal Law, Vol. 2, No. 3, 2004
In this response to Peter Westen's and James Mangiafico's article, The Criminal Defense of Duress: A Justification, Not An Excuse - And Why It Matters, Professor Huigens argues that Westen and Mangiafico (W&M)do not demonstrate that duress is a justification in the sense that they apparently mean: that duress is in all instances a justification and never an excuse. W&M argue that duress is a justification because, seen in context, a human threat is more grave than a natural threat, so that avoiding such a threat is a lesser evil. But there is nothing remarkable in this, because the facts that will support a duress defense often will also support a justification argument. In the framing of a justification argument, we always contextualize by allowing the defendant to argue both that he was justified and that he was reasonable even if he was mistaken about being justified. This does not preclude the defendant from making a third argument that, even if he was not actually justified, and even if he was at fault in mistakenly believing that he was justified, he still ought to be acquitted. The conditions of responsibility are not met where he makes a wrong choice under circumstances of hard choice, and he is not a fair candidate for punishment when most of those who would presume to punish him lack the moral right to do so, because they would have made the same wrong choice that he did in those circumstances.
Number of Pages in PDF File: 13
Keywords: Duress, Justification, ExcuseAccepted Paper Series
Date posted: April 4, 2005
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