A Societal Reliance Theory of Criminal Duress
This Article offers a novel perspective on criminal duress that helps to explain its availability and its expressive purpose in society. A familiar example of duress is when a coercer demands that an otherwise law-abiding person commit an armed robbery under threat that the coercer will violently harm the coerced party or her loved one. If the defendant under threat meets certain conditions, we allow the coerced party to avoid punishment despite her obvious consciousness of wrongdoing. Theorists bracket duress as an “excuse” in the criminal law, given our moral disapproval of the further bad act and that we don’t want this kind of behavior to be modeled by others in society. But duress eludes easy theorizing, in that fundamental values related to reliance and fair warning are inapposite to excuses like duress. Nevertheless, I argue that those federal circuit rules and state codes that still bar duress to those who merely negligently expose themselves to criminal coercion be revised.
Cite as Andrew Jensen Kerr, A Societal Reliance Theory of Criminal Duress, 19 N.Y.U. J.L. & Liberty 306 (2026).