Entrapment

Governmental inducement of criminal activity is widely regarded as essential for effective [Page 615]law enforcement, especially when the government is seeking to prosecute persons engaged in crimes committed in secret among willing participants (e.g., drug offenses, bribery, receipt of stolen property, and trafficking in pornography). To detect and punish persons engaged in such activities, the police frequently find it necessary to feign participation in a criminal scheme, offering inducements designed to gather evidence of the individual's criminal plans. Common tactics include offering to sell or purchase contraband, promising financial rewards for criminal acts, and agreeing to participate or assist in a criminal enterprise.

Although it is a useful law enforcement technique, the government's encouragement of criminal acts poses serious risks for a society that values individual freedom and autonomy. Our criminal justice system assumes that, in principle, people have the capacity for free choice, and the state should “respect the autonomy and capacity for self-actuation of its citizens” (Fletcher 1978: 431). Punishment should not be imposed on the basis of speculation about a person's “thoughts and emotions …, personality patterns and character structures” (Packer 1968: 73). Criminal penalties are appropriate only for individuals who fail to exercise selfrestraint, whose antisocial inclinations are revealed in antisocial behavior.

Permitting the government to engage in the solicitation and inducement of crime can violate these basic principles. When the government tests the morality of a citizen by enticing that person to commit a criminal act, the government itself actuates the criminal behavior in some sense and creates a risk that an otherwise innocent and law-abiding person—someone who would normally restrain himself or herself from criminal conduct—will be caught in the government's net. To limit this risk, every jurisdiction in the United States provides that excessive government encouragement of a criminal act may give the perpetrator a defense of “entrapment” to the resulting criminal charges. The precise contours of the entrapment defense have long been the subject of debate and disagreement among American courts and commentators.