Unraveling Unlawful Entrapment
51 Pages Posted: 29 Jan 2012
Date Written: 2004
Those who engage in unlawful conduct because they have been induced to do so by a government agent may enjoy the defense of entrapment. But why? Such individuals seem no more justified in or excused for their unlawful acts than persons who have been induced by a private party. This is the puzzle of entrapment. To solve this puzzle, this article introduces and defends a new theory of entrapment – entrapment as unfairness. According to this theory, entrapment is fatally unfair to its target in the following sense: For society to impose criminal sanctions on an entrapped person would be to place on her a disproportionate share of the cost of general crime prevention and control, violating the well-established norm of distributive justice that, to the extent possible, the cost of a beneficial activity should be shared among all its beneficiaries. After elaborating this thesis, the Article considers and responds to a number of potential objections to entrapment as unfairness, and then applies the theory to a number of current controversies concerning entrapment.
Keywords: entrapment, justice, criminal law, defenses
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