Covert Facilitation and Crime: Restoring Balance to the Entrapment Debate

Abstract

Covert facilitation of crime by or on behalf of government agents has always been viewed with suspicion, but the recent use of this technique of enforcement against power elites has resulted in a storm of protest from civil libertarians. The argument of this paper is that, although there is virtue in the standard libertarian objections, the use of covert facilitation is essential to ensure that the law is applied effectively against crime in high places. Covert facilitation should be subject to probable cause and other safeguards that would prohibit most of the covert facilitation presently undertaken by police. The greater concern, however, is that the technique will not be used frequently enough to combat the offenses of the powerful. Given this concern, enforcement agencies should be placed under a responsibility to use covert facilitation against white‐collar offenders to even up the scales of justice. The use of covert facilitation for this purpose is advocated because of the low visibility of much white‐collar crime and the principle of noblesse oblige. Concrete suggestions are set out for implementing this egalitarian policy, together with proposals for safeguarding persons against unjustifiable interference and abuse.