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Published online by Cambridge University Press: 20 December 2017
This paper defends pro-active policing measures that offer reasonable assurance that the authorities will elicit crimes from citizens that would likely have occurred anyway. Such pro-active measures generally should be directed only at citizens who the authorities can demonstrate to a court have active intentions to commit crimes, must mimic the kinds of opportunities already available to targeted citizens, must be abandoned if the citizens to whom they are offered appear to renounce their criminal intentions, and must be a last resort. They should also be focused on the prevention of serious harm rather than vice crime. Pressuring targeted citizens to accept the opportunities presented to them should be prohibited. When government officials exceed the remit of their pro-active policing warrants, the remedy should be the dismissal of all charges stemming from their overreach.
1. Of course, we would want to make sure that such surveillance does not intrude on legitimate expectations of privacy and is not conducted in ways that are discriminatory.
2. Other scholars have claimed that entrapment should be treated in this way. See Whelan, Maura F. J., Lead Us Not into (Unwarranted) Temptation: A Proposal to Replace the Entrapment Defense with a Reasonable Suspicion Requirement , 133 U. Penn. L. Rev. 1193 (1985)Google Scholar; 3 Antony Duff, Lindsay Farmer, Sandra Marshall & Victor Tadros, The Trial on Trial: Towards A Normative Theory of the Criminal Law (2007), at 242–247.
3. Howard, Jeffrey W., Moral Subversion and Structural Entrapment , 24 J. Pol. Phil. 24 (2016)CrossRefGoogle Scholar.
4. See Carlson, Jonathan C., The Act Requirement and the Foundations of the Entrapment Defense , 73 Va. L. Rev. 1011, 1051 (1987)CrossRefGoogle Scholar. See also Sorrells v. United States, 287 U.S. 435 (1932).
5. Carlson, supra note 4, at 1051. See also Altman, Andrew & Lee, Steven, Legal Entrapment , 12 Phil. & Pub. Aff. 51, 60 (1983)Google Scholar.
6. For discussion, see Carlson, supra note 4, at 1023–1051; Whelan, supra note 2, at 1203–1216; Howard, supra note 3, at 25–28; Dworkin, Gerald, The Serpent Beguiled Me and I Did Eat: Entrapment and the Creation of Crime , 4 Law & Phil. 17 (1985)CrossRefGoogle Scholar; Robinson, Paul H., Criminal Law Defenses: A Systematic Analysis , 82 Colum. L. Rev. 199 (1982)CrossRefGoogle Scholar; Grant Stitt, B. & James, Gene G., Entrapment and the Entrapment Defense: Dilemmas for a Democratic Society , 3 Law & Phil. 111 (1984)Google Scholar; Gershman, Bennett L., Abscam, the Judiciary, and the Ethics of Entrapment , 91 Yale L.J. 1565 (1982)CrossRefGoogle Scholar.
7. Gershman, supra note 6, at 1580; Carlson, supra note 4, at 1039; Whelan, supra note 2, at 1207.
8. For strong skepticism about the usefulness of the notion of a “predisposition” to offend in the entrapment debate, see Allen, Ronald J., Luttrell, Melissa & Kreeger, Anne, Clarifying Entrapment , 89 J. Crim. L. & Criminology 407, 413 (1999)CrossRefGoogle Scholar.
9. Whelan, supra note 2, at 1212; Carlson, supra note 4, at 1039.
10. Whelan, supra note 2, at 1208.
11. There is considerable debate about when the “last moment” exists, or in other words, when an attempt to commit a crime has sufficiently gotten under way such that renunciation is no longer possible or, at most, such that it might serve as a mitigating factor in punishment. For helpful discussion of these issues, see Larry Alexander & Kimberly Kessler Ferzan (with Stephen Morse), Crime and Culpability: A Theory of Criminal Law (2009), at ch. 6.
12. Dworkin, supra note 6, at 33; Carlson, supra note 4, at 1047.
13. For discussion of the presumption of innocence, and the difference between it and the non-presumption of guilt, see Richard L. Lippke, Taming the Presumption of Innocence (2016).
14. Whelan, supra note 2, at 1216; Dworkin, supra note 6, at 33.
15. Carlson, supra note 4, at 1019, 1024.
16. See, e.g., Joshua Dressler, Understanding Criminal Law (4th ed. 2006), at ch. 23.
17. Duff et al., supra note 2, at 243–244; see also Ashworth, Andrew, Testing Fidelity to Legal Values: Official Involvement and Criminal Justice , 63 Modern L. Rev. 633 (2000)CrossRefGoogle Scholar.
18. Howard, supra note 3, at 28–37.
19. Howard, supra note 3, at 28.
20. Howard, supra note 3, at 29.
21. Thus, Howard does not treat entrapment as a defense. Instead, he would prohibit and punish it.
22. This calls to mind Hegel's claim that “to base a justification of punishment on threat is to liken it to the act of a man who lifts his stick to a dog.” See G. W. F. Hegel, Philosophy of Right (T. M. Knox, trans., 1965), at 246.
23. Ronald Dworkin, Taking Rights Seriously (1977), at 22–30.
24. See Duff, R. A., Dangerousness and Citizenship , in Fundamentals of Sentencing Theory: Essays in Honor of Andrew von Hirsch (Ashworth, A. & Wasik, M. eds., 1998)Google Scholar, at 141–163; Morse, Stephen J., Blame and Danger: An Essay on Preventive Detention , 76 Boston U. L. Rev. 112 (1996)Google Scholar. Of course, it might be argued that preventive detention is not punishment, but I argue elsewhere that such a proposition will be difficult to defend. See Lippke, Richard L., No Easy Way Out: Dangerous Offenders and Preventive Detention , 27 Law & Phil. 383 (2008)CrossRefGoogle Scholar.
25. Carlson, supra note 4, at 1057–1074, questions whether pro-active policing serves legitimate penal aims. Yet it appears to serve the aim of incapacitation if it is employed to remove dangerous persons from society. It might also serve retributive aims in the ways that punishing persons who undertake failed or impossible attempts serve them.
26. Howard, supra note 3, at 29.
27. Id. at 31.
28. Douglas Husak, Drugs and Rights (1987); Michael Tonry, Punishing Race: A Continuing American Dilemma (2011).
29. Stuntz, William J., Race, Class, and Drugs , 98 Colum. L. Rev. 1795 (1998)CrossRefGoogle Scholar.
30. As Stuntz, supra note 29, at 1826, makes clear, the appearance might be almost as damaging to poor citizens’ perceptions of the fairness of the criminal justice system as the reality.
31. Howard, supra note 3, at 37–46, develops this point at length.
32. Further, there are the problems with all-too-abundant opportunities for official corruption in the policing of vice crime. See Carter, David L., Drug-Related Corruption of Police Officers: A Contemporary Typology , 18 J. Crim. Justice 85 (1990)CrossRefGoogle Scholar; Dombrink, John, The Touchables: Vice and Police Corruption in the 1980s , 51 Law & Contemp. Probs. 201 (1988)CrossRefGoogle Scholar.
33. See Bar-Gill, Owen & Friedman, Barry, Taking Warrants Seriously , 106 Nw U. L. Rev. 1609 (2012)Google Scholar; Dripps, Donald, Living with Leon , 95 Yale L.J. 906 (1986)CrossRefGoogle Scholar.
34. A similar constraint is defended by Allen et al., supra note 8, at 414–420 and McAdams, Richard H., The Political Economy of Entrapment , 96 J. Crim. L. & Criminology 107, 176 (2005)Google Scholar. Allen et al. are mostly focused on the efficient use of scarce policing resources in order to deter crime. McAdams is likewise concerned with employing our resources effectively to catch highly probable offenders, rather than low-probability ones, though he recognizes the potential for abuse of pro-active policing measures and searches for ways to limit such abuse.
35. See John Kleinig, The Ethics of Policing (1996), at 158–160.
36. McAdams, supra note 34, at 153, notes that another potential issue with government agents providing targets with opportunities to commit crimes is that such offers might be repeated over and over, such that targets who initially refuse them might eventually give in and accept them, especially in moments of vulnerability. This might be more of a problem with vice crimes than with the kinds of more serious crimes for which I am defending pro-active policing measures. In any case, the solution might be to require government agents to seek reauthorization from the courts each time they approach a target. Judges, we might hope, would view repeated requests with increasing skepticism in the absence of fresh evidence that the targets have active intentions to commit the crime or crimes in question.
37. Social bonds were arguably created and exploited by the government in two of the leading Supreme Court cases on entrapment, Sorrells v. United States, supra note 4, and Sherman v. United States, 356 U.S. 359 (1958). For discussion of the factual scenarios in these cases, see Gershman, supra note 6, at 1569 n.16.
38. Altman & Lee, supra note 5, at 62–63, would not permit government authorities to offer materials to targets with active intentions to offend if those materials would not usually be available in the absence of the government's proffers of “help.” Thus, for example, government agents should not be permitted to offer nuclear weapons to terrorists, at least on the assumption that such weapons are not usually available. If government agents were allowed to make such offers, they might foment crimes that would not occur but for their actions.
39. Cf. Howard, supra note 3, at 31.
40. Cf. Whelan, supra note 2, at 1219.
41. Importantly, I am not denying that the police warning citizens away from crimes is never justified, as it might be when the police catch wind of minor crimes afoot, especially minor crimes about to be committed by youths.
42. Duff et al., supra note 2, at 243.
43. Id. at 243.
44. Id. at 227.
45. Carlson, supra note 4, at 1062.
46. Id. at 1076.
47. The literature on the punishment of failed attempts is substantial. For a useful overview of the main positions, see Westen, Peter, Why Criminal Harms Matter: Plato's Abiding Insight in the Laws , 1 Crim. L. & Phil. 307 (2007)Google Scholar.
48. See, e.g., Alexander & Ferzan, supra note 11, at 194–195. Subjectivists could acknowledge differences among impossible attempts, such that those stemming from conditions like extreme mental illness should be distinguished from those resulting from agents’ mistaken beliefs about the efficacy of means they employ to attempt harms to others.
49. See, e.g., R. A. Duff, Criminal Attempts (1996), at 342–346.
50. Lippke, Richard L., Harm Matters: Punishing Failed Attempts , 14 Ohio St. J. Crim. L. 629 (2017)Google Scholar.
51. Peter Holley, Fla. Child Sex Sting Nabs 22 Suspects, Including Methodist Pastor Who Volunteered in Schools, Wash. Post (Sept. 16, 2016), available at https://www.washingtonpost.com/news/true-crime/wp/2016/09/16/fla-child-sex-sting-nets-22-men-including-youth-pastor-who-volunteered-in-schools/?hpid=hp_hp-more-top-stories-2_sexsting-750a%3Ahomepage%2Fstory. It is unclear from the news report whether the authorities had anything like probable cause to believe that there were individuals with active intentions to commit sex acts with minors.
