1 The Journal of Ethics and Social Philosophy (2005)
In the United States, a criminal defendant can show himself to be not guilty of the crime of which he is accused by showing that he was “entrapped” by agents of the government. Entrapment is not merely a mitigating factor to be considered in sentencing a defendant who is acknowledged to be guilty of a crime; it is not treated in the law in the way, for instance, a defendant’s poverty is often treated, as providing reason to give a guilty defendant a lighter sentence than an equally guilty but rich defendant, who also stole for money. Rather, entrapment constitutes a complete defense: An entrapped defendant is simply not guilty of violating the law under which he is being prosecuted. Those who think that there would be something wrong with a legal system that did not allow the entrapment defense have, in the background of their thoughts, a particular picture of the conditions under which it is appropriate to hold a person legally responsible for his behavior, conditions that are absent when that person has given in to certain temptations supplied by the government. They accept, that is, however implicitly, a theory of legal responsibility under which certain people who, under certain circumstances, give in to a temptation issued by the government are thereby, and on those grounds alone, rightly excused from legal responsibility. This paper describes some of the features of such a theory, a theory from which it follows that the entrapment defense is an essential element in a just legal system.
Date of Authorship for this Version
Yaffe, Gideon, "’The Government Beguiled Me’: The Entrapment Defense and the Problem of Private Entrapment" (2005). Faculty Scholarship Series. Paper 3710.