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.
In the very first case in which a U.S. court considered the entrapment defense, Board of Commissioners v. Backus (29 How. Pr. 33, 42 (1864)), a New York court rejected it on the grounds that God refused to excuse Eve when she opined, "The serpent beguiled me, and I did eat." (1) If the excuse of "beguilement" wasn't good enough for God, why should it be good enough for the court? (2) In offering this justification for its action, the court chose to interpret the defense as claiming, generally, that "beguiled" defendants are not guilty, a claim it took to be false. In fact, however, defendants who offer the defense are claiming not just to have been beguiled, but also to have been beguiled by the government. The court assumed that this aspect of the defense was irrelevant. They assumed, that is, that government beguilement is no more an excuse than serpent. Call this "the problem of private entrapment": A justification of the entrapment defense must explain why it is that, had a defendant who successfully employs the entrapment defense been tempted by a private party, instead of the government, he would not have been excused from legal responsibility. (3) In this first entrapment case, then, the court assumed that there could be no solution to the problem of private entrapment, and so rejected the defendant's argument. (4)
With the goal of describing part of the theory of legal responsibility underlying the entrapment defense, this paper aims to solve the problem of private entrapment. (5) Imagine a pair of defendants who act precisely the same way in response to a temptation offered by another person whom each believed to be a private party, not working for the government. Perhaps both defendants are approached by someone who claims to be able to provide security codes for a facility holding something worth stealing to someone willing to steal it, and imagine that both defendants, neither of whom has done, or contemplated doing, anything like this before, give in to the temptation and are arrested on leaving the facility with the stolen goods in hand. It will be argued that they differ in responsibility if one of them was tempted by a private party while the other, unbeknownst to him, was tempted by an agent of the government acting with the aim of prosecuting the defendant should he give in to the temptation. (6)
The paper is structured as follows. Section 1 defines various concepts useful for thinking about entrapment and situates the problem of private entrapment within the conceptual framework described. …