Few criminal defenses have generated as much controversy among philosophers and jurists as has necessity, and few philosophers disagree so thoroughly in political and legal philosophy as do Bentham and Kant. But, in a surprising moment of consensus, Bentham and Kant both argue that an imperiled wrongdoer facing death merits an acquittal because the threat of even capital punishment is insufficient to compel her to obey the law.Jeremy Bentham, THE PRINCIPLES OF MORALS AND LEGISLATION 170 (1948). I will hereafter insert references to this work in the text, following the abbreviation “PML.” Immanuel Kant, METAPHYSICS OF MORALS 28 [6:235] (Gregor ed., 1996). I will hereafter insert references to this work in the text, following the abbreviation “MdS,” to the Prussian Academy pagination. Kant makes the same claim in On the common saying: That may be correct in theory, but it is of no use in practice, PRACTICAL PHILOSOPHY 299n [8:300n] (Gregor ed., 1996). I will work only with the former, as it is later and more developed. At a glance, we might take each therefore to hold that she merits an acquittal on the ground that those who could not conform their actions to the requirements of the law cannot fairly be held to answer for them.George Fletcher glosses Kant this way. Fletcher, RETHINKING CRIMINAL LAW 819 (1978). Michael D. Bayles represents this as the standard reading of both. Bayles, Reconceptualizing Necessity and Duress, 33 WAYNE L. REV. 1191, 1194–1195 (1987). But this misrepresents both Bentham’s and Kant’s views. For each, the nondeterrability of the imperiled wrongdoer does not defeat her responsibility for her actions but rather defeats a condition under which the state enjoys the right to punish wrongdoers. In short, for both Bentham and Kant, the imperiled wrongdoer merits an acquittal because the state lacks standing to punish her. I will call this the ultra vires thesis.