5 - Duress and Systemically Complete Mitigation

Summary

Chapters 2, 3, and 4 advance accounts of the general category of justification defenses, of the role of self-defense in a liberal society, and of the particularly difficult subset of self-defense cases involving battered women who kill their batterers in nonconfrontation situations. Each chapter, however, fails to provide a completely satisfactory account because a residual of difficult cases remains unresolved. These cases share at least some properties with those that qualify for the duress defense. Although Section 2.5 addresses the prison escape cases as candidates for justification, and as raising the possibility of mutually justified violent conflict, certain factors render them arguable candidates for excuse. Prisoners who face impending violence experience coercive threats that would elicit strong fear in most people. If they are unable to secure reliable official protection in the prison, then many observers might reasonably think that these defendants “had no choice,” “could not help it,” or “could not control themselves.” These interpretations seem particularly apt when applied to individuals who run impulsively in panic rather than as part of a well-planned escape.

The analysis advanced in Section 2.5.3 denies justification to the innocent C for shooting the innocent B when C realizes that B is about to redirect the floodwaters, killing C in order to save a thousand innocent townspeople. That discussion also recognizes that C would be heroic, however, if he should accept his fate in the face of such frightening prospects. The stranded sailors G and H in Section 2.5.3, who struggle for the only available plank, arguably engage in unjustified homicidal conduct toward each other.