Chapter 12 – Policing Entrapment

Abstract

Entrapment has been a prominent, if rarely successful, defence in terrorism prosecutions. In this chapter, I sketch an egalitarian case for entrapment. On this account, the primary moral significance of entrapment is to prevent the police from generating crimes that would not otherwise have been perpetrated. In a context in which most people are, as Richard McAdams puts it, “probabilistic offenders,” the power of the authorities to control the nature, frequency, and timing of an inducement to crime is the power to make criminals out of ordinary, but fallible, people. Entrapment is a means of constraining this power. In this regard, entrapment stands to undercover policing roughly as abuse of process stands to prosecutorial discretion: as a constraint on how officials choose which individuals to investigate, prosecute and punish. However, since judgments as to when this line is crossed are likely to be contestable, and since what is at issue is typically extraordinary state power used to ensnare particular individuals, I argue that courts should do more to encourage Parliament to regulate undercover policing ex ante rather than rely solely on an entrapment defence applied ex post, for instance by strictly applying an “authorized by law” condition in prosecutions based on undercover investigations.