The Concept of Entrapment
Entrapment involves two main parties: the entrapping party and the party that the entrapping
party intends to entrap. We call the first the agent and the second the target. When the agent is
responsible for law enforcement, or (as in the case of an informer asked by the police to entrap)
acting on behalf of someone who is, and is acting (permissibly or otherwise) in their capacity
as a law-enforcement agent or their deputy, we are dealing with legal entrapment. Legal
entrapment may, but need not, be illegal in the other sense of the word “legal”. When the agent
is not a law-enforcement officer, we are dealing with civil entrapment. Civil entrapment is
carried out by someone who is either not a law-enforcement officer at all, or who is a lawenforcement officer not acting (permissibly or otherwise) in their official capacity: it is, in this
sense, extra-legal. This is not to say that it is illegal (though it may be).
An act of civil entrapment and another of legal entrapment may each involve the temptation
to commit a crime of the same type. At the same time, we believe that it is useful not to restrict
the notion of entrapment to cases in which the agent intends that a crime be committed by the
target. Many instances of entrapment, both legal and civil (although typically more the latter)
are not criminal acts but instead, say, actions that violate moral directives that are not encoded
in legal rules. In the paper we explain this in further detail and we will accordingly extend our
original definition of legal entrapment to other forms of entrapment. For the time being, suffice
it to say that doing this provides theoretical utility, because like cases can be analysed in like
ways (and subsequently – though we will not do so here – ethically evaluated in like ways).
This means that instead of employing a one-dimensional classification scheme (legal/civil,
state/civil, legal/private, or state/private, depending on what terminology is used) acts of
entrapment are classified, on our account, via the following two-dimensional matrix.
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A
1. Is the agent a law-enforcement agent or Yes
B
No
their deputy, acting in their capacity as a
law-enforcement agent or their deputy?
2. Is the act that the agent intends the target Yes
No
to commit a criminal act, or so considered
by the agent?
Table 1: classification matrix for acts of entrapment
Type 1 = 1A + 2A = legal entrapment
Type 2 = 2A + 1B = civil entrapment to commit a crime
Type 3 = 2A + 2B = civil moral entrapment
Type 4 = 1A + 2B = state moral entrapment
We have ordered the types in this list in order of the frequency with which they appear to be
discussed in the literature on entrapment, going from most to least frequent. By “moral
entrapment”, we mean entrapment that aims not to tempt the target to commit a crime, but
rather to tempt them to do something that is immoral, embarrassing, or socially frowned upon
(measurable in part by the extent to which the target would probably not like the act to be
exposed to colleagues, their employer, friends, family, or the public). Our use of “moral” is
wide, as in the (now antiquated) phrase “moral sciences”.
We consider it legitimate, rather than a case of low redefinition of the concept of
entrapment, to include Types 3 and 4 as genuine cases of entrapment even though they do not
aim at tempting the target to commit a crime. Including Type 3, for example, in the list is also
likely to have theoretical utility, because it will enable like analyses of like cases of legal
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entrapment to commit crimes by the state and entrapment, by media organizations, of targets
into committing embarrassing or immoral, but non-criminal, acts that those organizations seek
to expose publicly. Our approach, then, is to recognize the diversity of—or, if you prefer, to be
conceptually liberal about—the phenomenon we are studying but to approach it, in terms of
the methodology and category scheme that we employ, in a way that maximizes both
theoretical utility and underlying analytical unity. For the time being, however, we restrict our
attention to entrapment of Type 1 so that we can make some conceptual headway that can later
in the paper be applied to all of the types of entrapment that we recognize.
We recognize that the word “entrapment” may carry a pejorative meaning. Nevertheless,
we do not think that the proper description of an act as one of “entrapment” either does or
should itself settle the question of the act’s moral or legal permissibility. Moreover, we are at
liberty to stipulate that in this article we intend to employ a non-pejorative usage, which we
shall later specify in some detail, of the term. For us, to classify a scenario as a case of
entrapment is not, of itself, to say anything about its moral or legal legitimacy. On an alternative
convention, which we are not following, “entrapment” is a term that is reserved for
“illegitimate proactive law enforcement”.
We distinguish the three questions. Whether entrapment has occurred is one question. In
order to answer this question, an extensionally correct definition of entrapment is required.
Whether the agent erred (morally or legally) in entrapping is another question. Putting this
question another way, when, if at all, is entrapment permissible? Whether the target ought to
be held (morally or legally) responsible is a third question. That is to say, under what
conditions, if any, is an entrapped party properly to be held culpable for the act that they have
been entrapped into committing?
Our focus in the article is exclusively on the first question. This question, we believe, has
to be answered in a rigorous and extensionally adequate manner before the other two questions
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can best be addressed. For reasons to be presented in the paper, we do not believe that attempts
to do this that have featured in the literature so far have managed to reach the goal.
Our aim is to provide a definition of entrapment that encompasses both civil and legal
instances and that makes some crucial improvements, in ways we explain as we go along, upon
existing definitions (which cover legal entrapment only) that have previously been published
elsewhere. We begin be explaining why, in our view, a normatively thin definition of legal
entrapment—that is, one which does not of itself settle the questions of permissibility or
culpability—is needed. We then proceed to explain the two existing normatively thin
definitions of legal entrapment (those by Stitt and James and by Dworkin) and we point out
some problems with their extensional adequacy. We then offer a way of resolving these
problems by providing a new definition of legal entrapment that builds on the previous two but
which excises the problems (in particular, we introduce what we call the intended detectability
condition). Subsequently, we provide a more general definition that encompasses both legal
and civil instances of entrapment. On our view, entrapment occurs whenever:
(i)
an agent plans that the target have the opportunity to commit an act;
(ii)
the planned act is criminal, immoral, embarrassing or socially frowned upon
(measurable in part by the extent to which the target would probably not like the act
to be exposed to colleagues, their employer, friends, family, or the public);
(iii)
the agent procures the act;
(iv)
the agent intends that the act should be detectably attributable to the target via the
evidence that links the target to the crime;
(v)
prior to the target’s committing of the act, the agent intends to exercise, or intends
that a third party might exercise, the power to expose the target.
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(vi)
counterfactual condition: the target would not have committed the particular crime
but for the agent’s having procured it.
We then spell out the implications of our discussion, both in general terms and, more
specifically, for further work that addresses the other two questions about entrapment that we
have mentioned, but that we do not here attempt to answer, concerning the permissibility of
the agent’s act and culpability on the part of the target for their act, when the agent has
entrapped the target. We then end the paper with a brief summary and some concluding
remarks.
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