![handle is hein.journals/lwphil42 and id is 1 raw text is:
Law and Philosophy (2023) 42: 1-36 © The Author(s), under exclusive licence to Springer Nature B.V. 2022
https://doi.org/10.1007/s10982-022-09449-7
WILLIAM R. TADROS
COERCION WITHOUT INCAPACITATION
(Accepted 6 April 2022)
ABSTRACT. This essay examines why coerced conduct tends not to have the
moral and legal consequences that non-coerced conduct often has. In it, I argue
against the incapacitation approach, the view that coerced conduct tends not to
result in the coercer acquiring a permission or an entitlement because the coercee
is typically incapable of exercising her rights to change the coercer's permissions or
entitlements. After demonstrating that coercees retain the ability to exercise those
rights, this article develops an alternative account: that coerced conduct tends not
to have a licensing effect because coercees typically do not elect to effect a change
in their coercers' permissions or entitlements.
Coerced conduct tends not to have the legal or moral consequences
that non-coerced conduct often has.1 In the United States, for in-
stance, a defendant who pleads guilty is deemed not to have waived
her Sixth Amendment right to a jury trial when her plea is the result
of constitutionally impermissible coercive pressure.2 Similarly, it is
generally accepted that a blackmail victim typically does not give up
her moral entitlement to the money that she hands to the black-
mailer. Clarifying why coerced conduct tends not to have a licensing
effect, in other words, explaining why coerced conduct typically does
' To simplify the prose, throughout this paper I will use the male pronoun when referring to the
proposal-maker (whether the individual is a coercer, a would-be coercer, or an issuer of a non-coercive
proposal) and the female pronoun when referring to the proposal-recipient (i.e., a coercee, an intended
victim, or a recipient of a non-coercive proposal).
2 See Brady v. United States, 397 U.S. 742, 750 (1970) ([A]gents of the State may not produce a plea by
actual or threatened physical harm or by mental coercion overbearing the will of the defendant.).
Because the coercive pressure must be constitutionally impermissible to invalidate a plea deal, not
everything that a layman might view as a threat invalidates a plea deal. See, e.g., United States v. Pollard,
959 F.2d 1011 (D.C. Cir. 1992) (holding that because the government had adequate evidence of the
defendant's guilt, and because the government was entitled to prosecute the defendant's wife, consti-
tutionally impermissible coercion did not occur even if, as the defendant claimed, he pleaded guilty
because prosecutors otherwise refused to negotiate a plea deal with his wife, who suffered from a
debilitating gastrointestinal disorder that caused her to lose 40 pounds during a three-month stay in
jail).](ViewImageLocal?handle=hein.journals/lwphil42&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most