Abstract
Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts that, in attempting to entrap, law-enforcement agents lapse into a form of practical incoherence that involves the attempt simultaneously to pursue contrary ends. We then argue that the objection, in this form, encompasses all cases of legal entrapment only if it is supplemented by appeal to the premise that law-enforcement agents have an absolute duty never to create crimes.
Highlights
Some legal theorists say that legal entrapment to commit a crime is incoherent
Legal entrapment occurs when the agent is a law-enforcement officer, acting in their official capacity as a law-enforcement officer, or when the agent is acting on behalf of a law-enforcement officer, as their deputy
On the other hand, the agent is neither a law-enforcement officer acting in that capacity, nor the deputy of such an officer, acting in their capacity as deputy, we have civil entrapment.[2]
Summary
Cases of entrapment involve an entrapping party, whom we call the ‘agent’, and an entrapped party, whom we call the ‘target’. When the act is non-criminal but is morally compromising (whether by being immoral, embarrassing or socially frowned upon in some way), we are dealing with ‘moral’ entrapment (using the word ‘moral’ in a wide sense). Four types of entrapment can be distinguished: legal criminal entrapment (e.g., the police entrap someone into dealing in illegal drugs), civil criminal entrapment (e.g., a journalist entraps someone into dealing in illegal drugs), civil moral entrapment (e.g., a journalist entraps a politician into making an embarrassing boast) and legal moral entrapment (e.g. when lawenforcement agencies, in their capacities as law-enforcement agents, entrap someone into performing a morally compromising act that is not a crime). We are not here concerned with whether the target’s token act is one for which the target is criminally liable. We seek to avoid this mistaken impression, and to provide a definition of entrapment that prejudges neither the question of the target’s criminal liability nor that of the permissibility of entrapment
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