Skip to main content

Advertisement

SpringerLink
Log in

Entrapment, Culpability, and Legitimacy

  • Published:
Law and Philosophy Aims and scope Submit manuscript

Abstract

In this paper, I offer a novel account of entrapment. This account suggests that the wrongness of pursuing punishment in cases of entrapment consists of two distinct components, one concerning the culpability of the entrapped defendant and the other concerning the legitimacy of the entrapping state to prosecute crimes that it has effectively created. Distinguishing these two components of entrapment, I explain, helps to clarify the moral issues at stake and to resolve some confusions and debates in existing legal analyses of entrapment.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. ‘Entrapment’, Oxford Dictionaries, retrieved from https://en.oxforddictionaries.com/definition/entrapment.

  2. Gerald Dworkin, ‘The Serpent Beguiled Me and I Did Eat: Entrapment and the Creation of Crime’, Law and Philosophy 4(1) (1985): 17–39.

  3. In some jurisdictions, e.g. Germany and Singapore, establishing legal entrapment leads to a reduced sentence; in the U.S., a full acquittal; and in England and Canada, a permanent stay of proceedings.

  4. I borrow the term ‘moral entrapment’ from Daniel J. Hill, Stephen McLeod, and Attila Tanyi, ‘The Concept of Entrapment’, Criminal Law and Philosophy 12 (2018): 539–554. Unlike their usage, I use ‘legal entrapment’ for the subset of entrapment cases where the entrapping agent acts on behalf of the state and the procured act is specifically criminal, and ‘moral entrapment’ for cases where the entrapping agent need not be the state and the procured act need not be criminal. I explain the distinction further in the discussion below.

  5. This case resembles Sherman v. United States, 356 U.S. 369 (1958) in which the justices unanimously agreed that entrapment had taken place.

  6. Sherman, 356 U.S. at 373.

  7. Sorrells v. United States, 287 U.S. 435 (1932) at 442, emphasis added.

  8. Sorrells, 287 U.S. at 442.

  9. One relevant finding from empirical moral psychology shows that situational factors drastically alter our moral behaviors, contradicting the conventional picture of people as agents that act according to stable, robust virtues and vices – see Gilbert Harman, ‘Moral Philosophy Meets Social Psychology: Virtue Ethics and the Fundamental Attribution Error’, Proceedings of the Aristotelian Society New Series 99 (1999): 315–331.

  10. This case resembles Sorrells v. United States, 287 U.S. 435 (1932) with some modifications in order to remove persistence as a confounding factor.

  11. For a comprehensive exploration of this claim, see P.M. Hughes, ‘What is wrong with entrapment?’, Southern Journal of Philosophy 42(1) (2004): 45–60.

  12. John Christman, ‘Autonomy’, in Roger Crisp (ed.), The Oxford Handbook of the History of Ethics (Oxford: Oxford University Press, 2013), pp. 691–709 (see esp. 691).

  13. For an argument that such chronic temptations undermine our self-control, see Richard Lippke, ‘Chronic Temptation, Reasonable Firmness, and the Criminal Law’, Oxford Journal of Legal Studies 34(1) (2014): 75–96. For an argument that self-control is an integral component of autonomy, see Alfred R. Mele, Autonomous Agents: From Self-Control to Autonomy (New York: Oxford University Press, 1995).

  14. Hughes, ‘What is wrong with entrapment?’, 58.

  15. The Canadian Supreme Court agrees: ‘while there is a limit, imposed by external events, on the accused's freedom

    of choice of action in all three cases of duress, necessity and entrapment[,] there is … a great difference in the quality and degree of pressure in the entrapment situation’. R v Mack 44 CCC (3d) 513 (1988) (see esp. 567–568).

  16. Patricia Greenspan, ‘The Problem with Manipulation’, American Philosophical Quarterly 40(2) (2003): 155–164 (see esp. 159).

  17. Hanna Pickard, ‘Psychopathology and the Ability to Do Otherwise’, Philosophy and Phenomenological Research 90(1) (2015): 135–163.

  18. For a defense of the claim that some temptations are more than mere opportunities, see Hughes, ‘What is wrong with entrapment?’

  19. Hughes, ‘What is wrong with entrapment?’, 50.

  20. Hill, McLeod, and Tanyi, ‘The Concept of Entrapment’, 540.

  21. Joel Rudinow, ‘Manipulation’, Ethics, 88(4) (1978): 343.

  22. Some philosophers define manipulation in terms of pressure. Others define it in terms of deception. Yet both pressure and deception intuitively seem like ways of manipulating others. Indeed, they often go together, such as Loki pressuring John for opioids on the pretense of being a fellow veteran. This has led several philosophers to sketch accounts of manipulation in which both pressure and deception can play an essential role; my argument employs one such pluralistic account. For pressure-based accounts, see e.g. Marcia Baron, ‘Manipulativeness’, Proceedings and Addresses of the American Philosophical Association 77(2) (2003): 37–54; Allen W. Wood, ‘Coercion, manipulation, exploitation’, in C. Coons & M. Weber (eds.), Manipulation: Theory and Practice (New York: Oxford University Press, 2014), pp. 17–50. For deception-based accounts, see e.g. Robert Noggle, ‘Manipulative Actions: A Conceptual and Moral Analysis’, American Philosophical Quarterly 33(1) (1996): 43–55; Anne Barnhill, ‘What Is Manipulation?’, in C. Coons & M. Weber (eds.), Manipulation: Theory and Practice (New York: Oxford University Press, 2014), pp. 51–72; Shlomo Cohen, ‘Manipulation and Deception’, Australasian Journal of Philosophy 96(3) (2018): 483–497. For additional pluralistic accounts, see e.g. Felicia Ackerman, ‘The Concept of Manipulativeness’, Philosophical Perspectives 9 (1995): 337–338; Greenspan, ‘The Problem with Manipulation’.

  23. Christman, ‘Autonomy’, 691.

  24. Joseph Raz, The Morality of Freedom, (Oxford: Clarendon Press, 1986), 373.

  25. One potential reason would be ‘lesser evil’ dilemmas, but those are not unique to entrapment cases.

  26. Jeffrey Howard, ‘Moral Subversion and Structural Entrapment’, The Journal of Political Philosophy 24(1) (2016): 24–46. Howard contends that the wrongness of entrapment lies specifically in moral subversion: entrapment ‘interfere[s] with the agent’s practical reasoning in ways that increase the likelihood she will culpably choose to act wrongly’, i.e. moral agency (25 and 30). His analysis supports my claim that manipulation ought to include both deception and pressure insofar as subversion can, he claims, be ‘motivational’ (i.e. pressure-based) or ‘epistemic’ (i.e. deception-based). However, unlike Howard, I think the agent provocateur’s moral subversion of the target in turn reduces the target’s autonomy (and thus their accountability) for their actions. It seems plausible to me that the magnitude of the interference with the target’s moral agency corresponds with the reduction of their accountability.

  27. Claudia Mills, ‘Politics and Manipulation’, Social Theory and Practice 21(1) (1995): 97–112 (see esp. 100–101).

  28. Thomas E. Hill, Jr., ‘Humanity as an End in Itself’, Ethics 91(1) (1980): 84–99 (see esp. 96); Noggle, ‘Manipulative Actions: A Conceptual and Moral Analysis’, 52.

  29. For a discussion of such considerations, see Richard Lippke, ‘A Limited Defense of What Some Will Regard as Entrapment’, Legal Theory 23(4) (2017): 283–306.

  30. This definition resembles the definition in Hill, McLeod, and Tanyi, ‘The Concept of Entrapment’, 550. However, my definition departs from theirs in important respects – see footnotes infra 31, 33, and 34.

  31. This departs from Hill, McLeod, and Tanyi who specify that only ‘solicitation, persuasion, or incitement’ count as methods of entrapment. I focus on manipulation because on my view it offers a more morally penetrating, though admittedly less legally sophisticated, description of the agent provocateur’s actions. See Hill, McLeod, and Tanyi, ‘The Concept of Entrapment’, 550.

  32. Mills, ‘Politics and Manipulation’, 97; Barnhill, ‘What is Manipulation?’, 53.

  33. For literature on nudging, see Richard Thaler and Cass Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (New Haven: Yale University Press, 2008); Cass R. Sunstein, The Ethics of Influence: Government in the Age of Behavioral Science (Cambridge: Cambridge University Press, 2016). For worries about nudging’s effect on autonomy, see T.M. Wilkinson, ‘Nudging and Manipulation’, Political Studies, 61(2) (2012): 341–355; and Franklin G. Miller and Luke Gelinas, ‘Nudging, Autonomy, and Valid Consent: Context Matters’, The American Journal of Bioethics 13(6) (2013): 12–13.

  34. Hill, McLeod, and Tanyi maintain that entrapment occurs only when ‘[t]he manner in which the target’s will is influenced involves responsiveness to the content of the agent’s speech act(s) or other communicative act(s)’. But it seems possible that an agent provocateur could employ more indirect methods like nudging to influence the target’s will by exploiting their cognitive biases or mechanisms. Such a case would raise the same moral issues as entrapment cases involving more direct manipulative methods. See Hill, McLeod, and Tanyi, ‘The Concept of Entrapment’, 550.

  35. Hill, McLeod, and Tanyi, ‘The Concept of Entrapment’, 551.

  36. Howard, ‘Moral Subversion and Structural Entrapment’, 36.

  37. Hughes, ‘What is Wrong with Entrapment?’, 58.

  38. P.M. Hughes, ‘Temptation and culpability in the law of duress and entrapment’, Criminal Law Quarterly 51(3) (2006): 342–359; Andrew Altman and Steven Lee, ‘Legal Entrapment’, Philosophy & Public Affairs 12(1) (1983): 51–69 (see esp. 58–59).

  39. The language of ‘creating crime’ is borrowed from Justice Stewart in U.S. v. Russell, 411 U.S. 441 (1973): ‘the question is whether – regardless of the predisposition to crime of the particular defendant involved – the governmental agents have acted in such a way as is likely to instigate or create a criminal offense’ (emphasis added).

  40. Sorrells, 287 U.S. at 451 (emphasis added).

  41. Victor Tadros, ‘Poverty and Criminal Responsibility’, Journal of Value Inquiry 43(3) (2009): 391–413.

  42. For discussions of hypocrisy, see G.A. Cohen, ‘Casting the First Stone: Who Can, and Who Can’t, Condemn the Terrorists?’, Royal Institute of Philosophy Supplement 58 (2006): 113–136; and Rebecca Stone, ‘Unconscionability, Exploitation, and Hypocrisy’, Journal of Political Philosophy 22(1) (2013): 27–47.

  43. The complicity point supports my earlier claim that for entrapment to occur the agent provocateur need not have the explicit intention that the target will be held accountable – merely foreseeing it suffices. An agent can be complicit in a wrongdoing even if they lacked the intention that the wrongdoing will occur. As Tadros observes, ‘If Smith provides the hit-man with the gun for cash, knowing that he will shoot Jones, but not caring whether he does so, or even if Smith hopes that he will fail in his plan, Smith is complicit in the shooting’. See Tadros, ‘Poverty and Criminal Responsibility’, 406.

  44. Depending on the nature of the causal connection between distributive injustice and criminal activity, one might argue that distributive injustice itself is a kind of entrapment. See Howard, ‘Moral Subversion and Structural Entrapment’.

  45. Sorrells, 287 U.S. at 442.

  46. For similar arguments pointing to the incoherence of entrapment with the broader aims of criminal law, see Dworkin, ‘Entrapment and the Creation of Crime’, 30–34; Andrew Ashworth, ‘What is Wrong with Entrapment?’ Singapore Journal of Legal Studies 293(2) (1999): 293–317 (see esp. 310); and R.A. Duff, L. Farmer, S. Marshall, and V. Tadros, The Trial on Trial, Volume 3: Towards a Normative Theory of the Criminal Trial (Oxford: Hart Publishing, 2007), 242ff.

  47. [2001] Regina v. Loosely, UKHL 53 at para 1.

  48. Dworkin, ‘Entrapment and the Creation of Crime’, 32.

  49. R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001).

  50. Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Harvard University Press, 2016), 248. See also Matt Matravers, ‘Who’s Still Standing?’ A Comment on Antony Duff’s Preconditions of Criminal Liability’, Journal of Moral Philosophy 3(3) (2006): 320–330; Benjamin Ewing, ‘Recent Work on Punishment and Criminogenic Disadvantage’, Law and Philosophy 37(1) (2018): 29–68 (see esp. 53–55).

  51. Regina, UKHL 53 at para 1.

  52. Sorrells, 287 U.S. at 441 (emphasis added).

  53. Sorrells, 287 U.S. at 454.

  54. Sorrells, 287 U.S. at 457&459.

  55. Sherman, 356 U.S. at 380.

  56. Dworkin, ‘Entrapment and the Creation of Crime’, 22.

  57. B. Grant Stitt and Gene G. James, ‘Entrapment and the Entrapment Defense: Dilemmas for a Democratic Society’, Law and Philosophy 3(1) (1984): 111–131 (see esp. 114).

  58. See e.g. Roger Park, ‘The Entrapment Controversy’, Minnesota Law Review 60 (1976): 163–274; Anthony M. Dillof, ‘Unraveling Unlawful Entrapment’, Journal of Criminal Law and Criminology 94(4) (2004): 827–896.

  59. Joseph A. Colquitt, ‘Rethinking Entrapment’, American Criminal Law Review 41 (2004): 1389–1437.

  60. Hill, McLeod, and Tanyi, ‘The Concept of Entrapment’, 6.

  61. It is worth emphasizing, however, that both the subjective and objective tests are highly imperfect proxies for the underlying normative concerns that motivate them. These imperfections have undoubtedly contributed to the entrapment debate.

  62. Dworkin, ‘Entrapment and the Creation of Crime’, 23; Ronald J., Allen, Melissa Luttrell, and Anne Kreeger, ‘Clarifying Entrapment’, Journal of Criminal Law and Criminology 89(2) (1999): 407–432 (see esp. 420–421); Dillof, ‘Unraveling Lawful Entrapment’; Gideon Yaffe, ‘The Government Beguiled Me’: The Entrapment Defense and the Problem of Private Entrapment’, Journal of Ethics and Social Philosophy 1(1) (2005): 1–50; Kate Hofmeyr, ‘The Problem of Private Entrapment’, Criminal Law Review 2006: 319–336; Dan Squires, ‘The Problem with Entrapment’, Oxford Journal of Legal Studies, 26(2) (2006): 351–376 (see esp. fn. 17); and Hock Lai Ho, ‘State Entrapment’, Legal Studies 31 (1) (2011):71–95 (see esp. 85–86).

Acknowledgements

I am grateful to Cécile Fabre, Charlotte Figueroa, Boston Topping, Inès Zamouri, two anonymous referees of Law and Philosophy, and especially Tom Sinclair for their helpful comments on this paper.

Author information

Authors and Affiliations

  1. Department of Politics, Princeton University, 001 Fisher Hall, Princeton, NJ, 08544-1012, USA

    Hochan Kim

Authors
  1. Hochan Kim
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Hochan Kim.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Kim, H. Entrapment, Culpability, and Legitimacy. Law and Philos 39, 67–91 (2020). https://doi.org/10.1007/s10982-019-09361-7

Download citation

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10982-019-09361-7

Search

Navigation