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. (shrink)

Our question is this: What makes an act one of entrapment? We make a standard distinction between legal entrapment, which is carried out by parties acting in their capacities as (or as deputies of) law- enforcement agents, and civil entrapment, which is not. We aim to provide a definition of entrapment that covers both and which, for reasons we explain, does not settle questions of permissibility and culpability. We explain, compare, and contrast two existing definitions (...) of legal entrapment to commit a crime that possess this neutrality. We point out some problems with the extensional correctness of these definitions and propose a new definition that resolves these problems. We then extend our definition to provide a more general definition of entrapment, encompassing both civil and legal cases. Our definition is, we believe, closer to being extensionally correct and will, we hope, provide a clearer basis for future discussions about the ethics of entrapment than do the definitions upon which it improves. (shrink)

Essay on philosophical problems with police sting operations and the legal doctrine of entrapment.

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. (shrink)

Why is wrong to punish criminals who have been entrapped by the state? The paper begins by presenting some criticisms of existing answers to this question. First, they fail to put the target, or victim, of entrapment at the centre of the moral explanation. Second, they fail to account for the intuitive relation between the reasons not to entrap and the reasons not to punish. Third, they struggle to account for the existence of agent-neutral reasons not to punish entrapped (...) offenders. Lastly, they are ill-equipped to explain why entrapment seems problematic also outside the legal context. In response, the paper develops a novel account of entrapment: the Manipulation Account. According to this, entrapment always involves a particular kind of manipulation (manipulation-by-hidden-intentions) which morally taints punishment. In short, I suggest that both the initial entrapment and the subsequent punishment involve wrongful manipulation. Lastly, the paper presents some untraditional, but ultimately welcoming, implications of the account. (shrink)

Under a ‘dirty hands’ model of undercover policing, it inevitably involves situations where whatever the state agent does is morally problematic. Christopher Nathan argues against this model. Nathan’s criticism of the model is predicated on the contention that it entails the view, which he considers objectionable, that morally wrongful acts are central to undercover policing. We address this criticism, and some other aspects of Nathan’s discussion of the ‘dirty hands’ model, specifically in relation to state entrapment to commit a (...) crime. Using János Kis’s work on political morality, we explain three dilemmatic versions of the ‘dirty hands’ model. We show that, while two of these are inapplicable to state entrapment, the third has better prospects. We then pursue our main aim, which is to argue that, since the third model precludes Nathan’s criticism, a viable ‘dirty hands’ model of state entrapment remains an open possibility. Finally, we generalize this result, showing that the case of state entrapment is not special: the result holds good for policing practices more generally, including such routine practices as arrest, detention, and restraint. (shrink)

In R v Looseley; Attorney General’s Reference (No. 3 of 2000) the House of Lords articulated a legal framework to govern ‘entrapment’ in criminal cases. Their Lordships regarded the need for judicial intervention to assist entrapped defendants as uncontroversial. This article argues that the doctrine they set out, in fact, necessitates substantial, and largely unarticulated, departures from principles the courts ordinarily stress as fundamental to the criminal law. In particular, entrapment doctrine determines liability for criminal acts by (...) reference to the kind of environment inhabited by their perpetrators, a perspective the law ordinarily attempts to exclude. This article suggests that the anomalous treatment of entrapment can be understood as a device to prevent the police from relocating the temptation to commit crime to environments in which they are not ordinarily confronted and to ensure that those from backgrounds in which serious criminality is not usually a plausible option will escape punishment if tempted to commit crime by the police. (shrink)

Defendants who are being tried for accepting a temptation issued by the government sometimes employ the entrapment defense. Acquittal of some of them is thought to be justified either on the grounds that culpability was undermined by the temptation or on the grounds that the government acted objectionably in issuing the temptation . Advocates of the objective approach often criticize those who employ the subjective by citing what is here called “the problem of private entrapment”: we don’t grant (...) a defense to those who accept temptations issued by private parties, and so it can’t be, it is claimed, that temptation undermines culpability. This paper argues that there is a difference in culpability between a defendant who accepts a government-issued temptation and a defendant who accepts a temptation issued by a private party. This claim is supported by identifying a necessary condition for desert of legal punishment and arguing that the privately entrapped satisfy that condition while the governmentally entrapped do not. The difference, it is argued, is rooted in the fact that the government aims to cause the defendant to act illegally, while private parties, except in extraordinary cases, aim only to cause the defendant to act in a way that happens to be illegal. The paper also argues that, despite appearances to the contrary, advocates of the objective approach also encounter the problem of private entrapment. (shrink)

The traditional fallacy of many questions, also known as the fallacy of complex question, illustrated by the question, "Have you stopped sexually harassing your students?", has been known since ancient times, but is still alive and well. What is of practical importance about this fallacy is that it represents a tactic of entrapment that is very common in everyday argumentation, as well as in special kinds of argumentation like that in a legal trial or a parliamentary debate. The (...) tactic combines the use of loaded questions with the complexity of the question. A key notion is that of the presupposition of the question. How to deal with such questions is a point of departure for interrogative theory, and for any attempts to construct formal dialogues of a kind that can be used as normative models of argumentation. (shrink)

Calls to decolonise the curriculum gain traction across the academe. To a great extent, the movement echoes demands of the decolonisation era itself, a period from which academics draw both impetus and legitimacy. In this article, we examine the movement’s purchase when applied to the teaching of international law. We argue that the movement reinvigorates debates about the origins of international law, centring its violent foundations as well as its Eurocentric episteme. Yet, like many critical approaches toward international law, the (...) movement is smitten with itself and with the regime. As a consequence, the outcome of its activism and critique is predetermined: both must redeem the Eurocentrism of international law and its associated pedagogy. Calls to decolonise the curriculum ultimately validate the epistemological limitations inherent to a stratified, international order, failing to offer a genuine alternative framework or epistemology. (shrink)

"Law week soccer competition: 16-19 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 25.

An official misrepresentation of the law occurs when an official, acting as an agent of the state, represents what is legal or not in an erroneous or misleading way. Should reliance on such misrepresentations excuse one from criminal responsibility? American courts presently recognize two official misrepresentation defenses: Entrapment by Estoppel and Public Authority. However, there is disagreement about what constitutes these defenses and what their limits are. Part of the confusion surrounds why these defenses are justified at all, (...) especially given the general principle ignorantia juris non excusat. We propose an answer to this justification question: these defenses are justified because official misrepresentations preclude knowledge of the illegality of the acts in question. It is not simply that someone on the receiving end did not know; they could not know. We develop this account, linking it to due process and fairness, and then use it to clarify Entrapment by Estoppel and Public Authority and argue both should be subject to important restrictions. (shrink)

This new edition of Drucilla Cornell's highly acclaimed book includes a substantial new introduction by the author, which situates the book within current feminist debates. In Beyond Accommodation, Drucilla Cornell offers a highly original vision of what feminist theory can give contemporary women. She challenges essentialist and naturalist accounts of feminine sexuality, arguing that any attempt to affirm woman's value and difference by either emphasizing her maternal role or repudiating the feminine only entraps women, once again, in a container that (...) curtails feminine sexual difference, legitimates the masculine fantasy of woman, and reinstates, rather than dismantles, the gender hierarchy. (shrink)

What is informed consent in medicine? For more than a generation, this deceptively simple question has vexed the law, discomfited medicine, and generated much inspired, provocative, and even contentious commentary.The question has also spawned several lawsuits. On one side stand patients who claim that, at the time of consent, they were ignorant of a particular risk; who state that, with more or different information, they would have chosen a different treatment; and who argue that, because of an adverse outcome, they (...) now deserve remuneration. On the other side, doctors uneasily watch the lengthening list of suits. Some, troubled by the law's expectations, have reacted by variously describing informed consent as a myth, a fiction, an unattainable goal, or a snare to entrap physicians. They point to the legal commentary condemning informed consent law as ill-defined, diffuse, and fraught with inconsistency, hazy at its best and virtually indecipherable to physicians at its worst: and lacking a fair standard to determine when a patient has sufficient knowledge to give effective consent. (shrink)

What is informed consent in medicine? For more than a generation, this deceptively simple question has vexed the law, discomfited medicine, and generated much inspired, provocative, and even contentious commentary.The question has also spawned several lawsuits. On one side stand patients who claim that, at the time of consent, they were ignorant of a particular risk; who state that, with more or different information, they would have chosen a different treatment; and who argue that, because of an adverse outcome, they (...) now deserve remuneration. On the other side, doctors uneasily watch the lengthening list of suits. Some, troubled by the law's expectations, have reacted by variously describing informed consent as a myth, a fiction, an unattainable goal, or a snare to entrap physicians. They point to the legal commentary condemning informed consent law as ill-defined, diffuse, and fraught with inconsistency, hazy at its best and virtually indecipherable to physicians at its worst: and lacking a fair standard to determine when a patient has sufficient knowledge to give effective consent. (shrink)

I address the question, ‘Should a retributivist support an entrapment defense and if so, under what circumstances?’, by considering the culpability of entrapped defendants. An entrapment defense is invoked by defendants who claim they violated the law because they were enticed to crime by the police and would not otherwise have committed the crime. There are different rationales for the defense: people who are normally law abiding, and who are not predisposed to commit crimes, do not commit crimes (...) merely when the opportunity is presented, without further coaxing—only criminals do—and so spending resources to entice and then punish such “false criminals” is wasteful from a utilitarian perspective. Several theorists assume retributivists must oppose the defense: entrapped defendants have broken the law and, according to one version of retributivism (Mabbott), this itself might warrant punishment; they are still culpable although they were enticed, because succumbing to temptation is no defense—there is no ‘private entrapment defense’; and to not punish the non-predisposed who are enticed to crime by government, while punishing those who are predisposed, is wrongly to assert that a person’s culpability hinges on their predisposition and wrongly to punish someone not for their present conduct but for their character or past actions. I explore some reasons why a retributivist can support an entrapment defense. First, entrapped defendants may be less culpable than the privately enticed insofar as they do not cause harm. As police control the situation, no actual harm is caused, and whether one actually causes harm may bear on one’s culpability; and if one’s predisposition was weak and required substantial police coaxing to be triggered, we might say that the police action and not the defendant caused the crime in the relevant sense. Second, applying Robert Nozick’s account of coercion in a novel way, I consider the argument that entrapped defendants may be less culpable insofar as their action was not fully voluntary, in that unlike in private enticement cases, they necessarily underestimate the probability of being caught before making their choice. (shrink)

We address the ethics of scenarios in which one party entraps, intentionally tempts or intentionally tests the virtue of another. We classify, in a new manner, three distinct types of acts that are of concern, namely acts of entrapment, of intentional temptation and of virtue testing. Our classification is, for each kind of scenario, of itself neutral concerning the question whether the agent acts permissibly. We explain why acts of entrapment are more ethically objectionable than like acts of (...) intentional temptation and why these, in turn, are more ethically objectionable than like acts of virtue testing. Along the way, we scrutinize, and eventually reject, the view that acts of entrapment are ethically unacceptable because intentional temptation is involved in entrapment. (shrink)

Internet stings to catch child molesters raise problems for popular tests of entrapment that focus on causation, initiative, counterfactuals, and subjective predisposition. An objective test of entrapment works better in the context of the Internet. The best form of objective test is determined by consequences of drawing a line at various places. This approach allows some Internet stings but counts other stings as entrapment when they go too far.

We discuss how the law and scholars have approached three questions. First, what acts count as acts of entrapment? Secondly, is entrapment a permissible method of law-enforcement and, if so, in what circumstances? Thirdly, what must criminal courts do, in response to the finding that an offence was brought about by an act of entrapment, in order to deliver justice? While noting the contrary tendency, we suggest that the first question should be addressed in a manner that (...) is neutral about the answers to the other two. On the second question, we summarize various arguments about the permissibility of entrapment, while remaining largely neutral about their merits. With regard to the third question, we summarize the approaches to entrapment in various jurisdictions, and we note some patterns, across the jurisdictions here surveyed, concerning shifts from one sort of entrapment remedy to another. (shrink)

The entrapment defense is a puzzle of long standing. One the one hand, we are offended by the government’s subjecting someone vulnerable to extreme temptation. It seems like something anyone might fall prey to. On the other hand, it is hard to explain why someone who actually commits, or attempts a crime, and who would be liable if anyone other than the government had tempted him, should escape punishment. His blameworthiness seems the same. This essay seeks to illuminate this (...) puzzle by showing how it parallels the long-standing debate surrounding the criminal law problem of the actio libera in causa—situations in which someone seeks to escape liability by contriving to put a certain defense in place, such as provoking his victim into attacking him, so that he can then kill him in self-defense. The parallels between the two problems do not serve to resolve either, but make them appear in a rather different light. (shrink)

This Article offers an integrated analysis of the combined effect of the presence of migration bans and the absence of BLAs in domestic work in the emigration regime of Nepal. It identifies, acknowledges, critiques, and contributes to the critical literature highlighting entrapment processes in labor relations and immigration regimes by demonstrating the presence of such in the emigration regime. Drawing on the empirical findings of a participatory action research project conducted in Nepal, the Article demonstrates how restrictive emigration policies (...) and practices entail entrapment processes constitutive of the existing historical, cultural, gendered, racialized, and classed constraints impacting the lives of Nepalese citizens. The Article contributes to the critical literature that seeks to advance migrants’ rights, arguing that experiencing, encountering and escaping entrapment processes in the emigration regime impacts their agency when navigating immigration regimes and labor relations. This contribution advances the existing efforts to establish oft-ignored emigration regimes as important epistemological sites of research, theorization, and intervention. (shrink)

Adult-based suicide theories have determined much of what we know about suicidal ideation. Here, we investigate the extent to which elements of theIntegrated Motivational-Volitional(IMV) model generalize to adolescence, a period when rates of suicidal ideation increase dramatically. In a sample of community-based adolescents (n= 74), we tested whether defeat and entrapment related to suicidal ideation, and whether poor positive future thinking abilities exacerbated this association. Consistent with the IMV model, we found that defeat/entrapment was associated specifically with history (...) of suicidal ideation, and not with history of suicide attempt. Defeat/entrapment was related to baseline suicidal ideation severity above and beyond depressive symptoms. While defeat/entrapment predicted future suicidal ideation controlling for history of ideation, it did not do so controlling for depressive symptoms. Counter to the IMV model, we initially found that the association between defeat/entrapment and suicidal ideation was strongest among adolescents withgreaterpositive future thinking abilities. This was driven by the tendency to imagine more positive future events, particularly those that are less realistic and achievable. These findings call for a more nuanced understanding of defeat/entrapment and positive future thinking among adolescents, particularly in how they interact to predict recurrent suicidal ideation. (shrink)

This article refers to the analysis of types of entrapment while gathering evidence in criminal proceedings. Based on the analysis of the laws of criminal procedure, theory and judicial practice, one could say that entrapment, as absolutely impermissible action in the course of simulation of a criminal act, could not be seen as mere pressure, active enticement or instigation to engage in criminal activity by restricting a person’s freedom of choice. As it happens, it is possible to provoke (...) a person without any active enticement or instigation to engage in criminal activity. This could be regarded as passive, indirect type of entrapment. The gist of the latter – creating the effect of minimum risk, meaning that a person, without any active enticement or instigation to engage in criminal activity, is acting in the course of a simulated situation, by thinking that the criminal activity he or she is committing will never be discovered by law enforcement authorities. The identification of passive entrapment is quite complicated, as it requires the precise assessment of the relation between the conduct of law enforcement authorities, the criminal and the criminal act, by using subjective and objective criteria. (shrink)