The debate about forms of what has been termed “pro-active” policing has gone on for some time. Pro-active policing is actually a rather broad category. It is usually distinguished from “reactive” policing, wherein government authorities move into action after crimes have already occurred and the perpetrators are sought. Pro-active policing could include police surveillance of an area where crimes have been occurring in the effort to catch perpetrators “in the act.” I am going to assume that such surveillance is defensible, at least in certain times and at certain places.Footnote 1 My focus will be on forms of pro-active policing in which the authorities take steps to elicit criminal offending, perhaps verging over into what scholars and the law term “entrapment.” In these forms of pro-active policing, the authorities do not simply “wait and watch” for crimes to occur; they offer persons suspected of having proclivities to commit crimes opportunities to do so. More than this, the authorities sometimes coax or pressure persons into committing them. As the forms of official influence over the commission of crimes by citizens become more involved or aggressive, concerns about such influence tend to intensify. Indeed, some scholars, as we shall see, regard any official involvement in the origins of criminal offending as problematic. They would prefer that the authorities “react” to crime, rather than “create” it.
My aim is to defend limited forms of pro-active policing in which the authorities elicit criminal behavior. I believe that the authorities should be permitted to extend opportunities to commit crimes to persons in situations where the authorities can convince a court that those persons have active intentions to commit the crimes. But in offering such opportunities, the authorities should be required to observe strict limits. Failure to get court approval or abide by the relevant conduct strictures should entitle persons subsequently arrested and charged with crimes to have all charges against them dropped in pre-trial (or pre-plea) hearings. In other words, my view is that overly aggressive forms of pro-active policing should not be grounds for the assertion of a defense at trial by persons who succumb to them; instead, the “victims” of such policing should be able to appeal to the courts for the discontinuance of prosecutions against them.Footnote 2 Pro-active policing of the sort that sometimes veers over into what is commonly regarded as entrapment is a morally fraught government activity, one that should be more carefully monitored and regulated than it currently is. It should also, I believe, be limited to the prevention of more serious crimes and be something of a last resort.
The account I have just sketched is developed in the second section. Taking my cue from a recent article by Jeffrey Howard, I contend that government officials should generally refrain from “subverting the morality” of citizens by inducing them to act in ways that the officials know are wrong and legally prohibited.Footnote 3 Howard regards the non-subversion principle as one of more or less absolute weight, and views all forms of pro-active policing as contrary to it. I argue that the non-subversion principle has to be weighed and balanced against other principles, the principle of preventing serious harm chief among them. Also, I contend that some forms of pro-active policing seek merely to change the timing and location of crimes that we have good reason to believe would have eventually occurred in the absence of official enticements to commit them. Whether this is a highly objectionable form of moral subversion is less clear than Howard seems to believe. The key will be to design and utilize pro-active policing measures that offer us reasonable assurance that the authorities are merely precipitating crimes that likely would have occurred anyway. We live in a world in which the authorities sometimes learn of impending criminal conduct that they lack other viable means of preventing. In such cases, they are reacting to something, albeit not to crimes already committed.
In the first section, I discuss the standard “subjective” and “objective” accounts of the entrapment defense and indicate what I take to be their main defects. This is well-worn territory in the scholarly literature. Thus, I limit my comments to defects that set the stage for my own account. I also explain why it seems odd to cast police efforts to induce the commission of crimes as a defense.
In the third section, I address various objections to my account, giving special attention to the arguments of those who are closer to “absolutists” about barring the kinds of pro-active policing efforts that I defend. I also consider some cases that are difficult for my own account, ones that I concede might force us to relax one or more of the conditions we should place on pro-active policing measures. We ought always to be uneasy about permitting the authorities to act in ways that might produce criminal conduct that would not have occurred but for the opportunities presented by the authorities. But the prospect of preventing grave harm in cases in which few other options exist warrants our supporting pro-active policing measures that we would otherwise abjure. Finally, I address the objection that since harm typically has not occurred and could not have occurred when the authorities employed pro-active policing measures, it is unclear why the targets of such measures should be punished for their acts.
I. SUBJECTIVE AND OBJECTIVE ACCOUNTS OF ENTRAPMENT
The core objection to certain forms of pro-active policing was succinctly captured by the United States Supreme Court in the case of Sorrells v. United States.Footnote 4 In Jonathan Carlson's words, the Court found that “it is improper to impose criminal sanctions upon a person who would not have engaged in criminal conduct absent an effort by the government to induce such conduct.”Footnote 5 However, the Court split on how to understand the rationale for the defense of entrapment. Some justices adopted the “subjective” account of entrapment, according to which those accused of crimes ought to be able to assert the defense if they can establish that they had no “predisposition” to commit the crime or crimes with which they have been charged. The subjective account relies on the intuition that the actions of the police induced the desire and intention to commit the crime and that these would not have existed in the absence of those actions. Hence, those without predispositions who succumbed to police inducements ought to be acquitted even though they committed the offense(s) with which they have been charged. Other justices adhered to the “objective” account of entrapment, which eschews focus on the mental states of the accused and instead zeroes in on the conduct of state agents. On this account, the accused should be entitled to assert the defense of entrapment if they can show that the police “crossed the line” from, say, merely presenting opportunities to commit one or more crimes, to more actively coaxing or persuading the accused to do so. On the objective account, regardless of whether or not the accused had predispositions to commit crimes, the overly pushy actions of the police are deemed to have been the key factor in producing the offending act(s). In the absence of such official conduct, the crimes would not have occurred and so the accused should be acquitted.
Numerous objections to these two accounts can be found in the entrapment literature, but let me focus on the ones that prefigure my limited defense of pro-active policing.Footnote 6 Start with the subjective account. First, there is the rather amorphous nature of a “predisposition” to offend. Does one have such a predisposition if one has thought once or twice, or maybe a number of times, about committing some type of crime but never proceeded to actually do so? Or does one have to have at least formed an intention to commit the crimes one has thought about? Thoughts or fantasies about crimes are probably quite common, but they still might distinguish persons who have had them from those who never have. Formed intentions will be rarer, but some individuals who have them might never have taken any steps to act on their intentions. It seems unclear, in that case, whether they have “predispositions to offend.” Further, would having acted on such intentions once or twice, long in the past, show that one has, now, a predisposition to offend? Courts in the United States tend to answer this in the affirmative, as it is notoriously difficult for those with criminal histories to assert successfully the subjective version of the entrapment defense.Footnote 7 Yet what if one has not had any active intention to commit an offense of the kind in question for years? Does one still have a “predisposition” to offend? Again, the answer to that question seems far from clear.Footnote 8
This leads to a second objection to the subjective account. Surely it ought to matter what the authorities do by way of inducing persons to offend, as the objective account insists.Footnote 9 There is a continuum of official inducements from merely presenting citizens with opportunities to offend, to coaxing them to do so, entreating them to do so, berating them if they refuse to do so, and, in the extreme, threatening them if they continue refusing. It seems incongruous to say that a person with a criminal history long in the past is not entitled to the entrapment defense because she has a predisposition to offend, no matter how much pressure was exerted on her by the authorities to offend again.
Conversely, suppose that a person has never had any intention to offend in any way, or has never entertained any thoughts or fantasies about doing so, but jumps at doing so when offered an opportunity by the authorities. An undercover agent offers someone narcotics or illicit sex and the targeted individual thinks, “Well, why not?” and, by accepting the offer, commits a crime. Granted, it will be exceedingly difficult for the target to prove, in a court of law, that he had no predisposition to offend, but it is not farfetched to believe that there might be individuals who spontaneously snatch at opportunities to commit crimes. Perhaps the person was simply never before presented with the relevant option and had not much thought about committing the crime in question. Why should such a person be entitled to the entrapment defense? Usually, we expect citizens to show “reasonable firmness” in the face of temptations and to therefore resist their criminal impulses.Footnote 10 Yet on the subjective account of the entrapment defense, the impulsive offender might be entitled to the defense because he had no “predisposition” to offend. That seems odd.
Third, the subjective account appears to leave no room for citizens having occurrent or active intentions to commit crimes but renouncing (or abandoning) them before attempts to commit them get under way or too far under way. Why do I say this? Well, imagine that a citizen has an active intention to commit an offense of a certain kind and is approached by an undercover officer who, initially at least, merely presents the citizen with an opportunity to commit it. Suppose that the citizen is tempted to criminally act but at the last moment, thinks the better of it and declines the opportunity. Undaunted, the undercover agent persists and gradually ratchets up the pressure, though stops short of threatening the citizen. Eventually the citizen succumbs and commits the offense. The subjective account of entrapment would presumably deny the citizen the defense. After all, she had more than a vague predisposition to offend; she had an active intention to do so. Yet there seems something troubling about the undercover agent's refusal to acknowledge and respect the citizen's repeated declinations of opportunities to offend. We should want those tempted to commit crimes to renounce their intentions, even if it is at the last moment.Footnote 11 The subjective account's indifference to how government agents act excuses them from having to honor the apparent abandonment of criminal intentions by citizens, and that is troubling.
Turning to the objective account, the first objection is that it pays too little attention to the intentions of the citizens who are targeted by pro-active policing. Surely we do not want government agents to go on “fishing expeditions,” offering citizens who they have no or little reason to believe are intent on committing crimes the opportunity to do so. The government should not be a random “virtue tester,” because this treats citizens as if they are prima facie suspect when it comes to exercising responsibility under the criminal law.Footnote 12 Virtue testing seems in conflict with the presumption of innocence, or at least with a non-presumption of guilt on the part of the government in relation to its citizens.Footnote 13 If such a dispiriting orientation by the government in relation to citizens is to be avoided, then pro-active policing measures ought to be responsive to evidence that some citizens are, in fact, actively inclined to commit or seeking to commit crimes. We might understand a “probable cause” requirement (or, perhaps weaker, a “reasonable suspicion” requirement) as the residue of the commitment to reactive policing.Footnote 14 By this I mean that if the government has to first demonstrate that it has plausible evidence that a citizen has an active intention to commit a criminal offense, it is reacting to something independent of it and not just “creating crime.” Granted, it is not, at that point, reacting to completed crimes, only to their precursors as it were. But the government is reacting to something worrisome and that seems different from drumming up crimes by offering opportunities to commit them to citizens who it has no reason to suspect are bent on offending.
Second, though the objective account seems right in asking us to focus on the differences among the actions that government agents might take to induce offending, it goes too far in conceptualizing actions that cross that line as constituting grounds for a full-fledged excuse. Suppose that undercover agents go beyond presenting their targets with opportunities to offend. In the face of reluctance by the targets to take up the proffered opportunities, the undercover agents coax, actively seek to persuade, or belittle their targets until their targets finally give in and accede to the undercover agents’ inducements. Most supporters of the objective account would argue that such government persistence and pressure crosses the line, such that citizens who commit crimes in the face of it ought to be able to assert successful entrapment defenses at their trials. But why should a little government pressure constitute a full-fledged excuse for offending?Footnote 15 Usually, we make it rather hard for persons accused of crimes to succeed with excuse defenses. Consider the defense of duress in this regard.Footnote 16 Persons accused of crimes have to show that they were, or someone close to them was, under a threat of death or grave bodily injury in order to successfully make out a defense of duress. Accused persons who asserted that they ought to not be convicted because someone coaxed them, actively persuaded them, insisted that they commit crimes, or belittled them for declining to do so would be effectively laughed out of the courtroom. Citizens are expected by the criminal law to have a little backbone—to resist others importuning them to commit crimes, even when that importuning is persistent or persuasive. Only when active and serious threats are employed to get persons to commit crimes are they allowed to assert a defense. Why should not a similar standard be employed in entrapment cases? Those charged would then get the defense only if they could demonstrate that government agents threatened them, or at least came close to doing so.
In response, it will be contended that things are different when it is government agents doing the inducing.Footnote 17 In other words, when non-government agents exert influence over others to commit crimes, there should have to be duress, or something close to it, to excuse the persons subject to such influence. When government agents exert the influence, something well short of duress excuses. Yet why should that be? The target presumably does not know that it is an undercover government agent who is inducing her to offend. The government agent who coaxes, persuades, or entreaties appears, in every respect, the same as the non-government agent who does so. Why should the actions of the former constitute the basis for an excuse when the actions of the latter most decidedly do not, unless they amount to duress?
If government pressure on citizens who the authorities have probable cause to believe have active intentions to commit crimes does not provide those citizens with an excuse, then why should we oppose such pressure? The answer, I believe, is that when the authorities pressure citizens to commit crimes, or make doing so more attractive than it would normally be, we have grounds for believing that, but for the actions of government agents, the crimes in question would not have occurred. If that is correct, then in some pretty straightforward sense, government agents are fomenting or creating crimes, even if the citizens they target are already somewhat motivated to commit them. In such cases, a line has been crossed that the courts should enforce by dismissing any charges stemming from the illicit pro-active policing.
II. MAKING A FRESH START
Again, my position is that government officials can offer the opportunity to commit crimes to citizens who they can convince a court have active intentions to commit crimes, at least in some circumstances. But how far the government goes toward inducing offending ought to matter, as the traditional objective account of entrapment makes clear. Yet that is not all that matters. For government officials ought to have some plausible evidence that the individuals to whom they are offering such opportunities are intent on offending. The traditional subjective account of entrapment is on to something important in focusing attention on the mental states of the targets of pro-active policing measures, though that account mischaracterizes what is important and takes it too far. And neither account quite puts its finger on what is worrisome about pro-active policing and thus why it should be limited and closely regulated. We should not punish citizens for crimes that would not have occurred but for pro-active policing measures. But we can justifiably punish them if the pro-active measures do little more than change the timing or location of crimes that would likely have occurred anyway. What we should seek is reasonable assurance that it is only the timing or location of crimes that pro-active policing measures affect.
In a recent article, Jeffrey Howard offers important insight into what is problematic about forms of pro-active policing that aim at inducing citizens to commit crimes. On Howard's account, our concern about such policing ought to be that it “subverts morality” in the sense that it encourages persons to act contrary to what morality, in the form of the defensible prohibitions of the criminal law, requires of them.Footnote 18 Crucially, as Howard's account makes clear, it does not or should not matter whether it is government agents or private citizens doing the subverting.Footnote 19 If I suspect that a friend or associate has an intention to commit a serious criminal act, surely I should not encourage him, in any way, to so act. I should instead seek to dissuade him from such action, though there are obvious limits to my ability to do so and the measures I can take to dissuade him. Government agents should behave no differently, on Howard's account. When confronted with citizens who seem inclined to commit crimes, they should not encourage them to do so, provide the means to do so, or arrange opportunities for them to do so. There is a principle at stake here that Howard contends is of considerable importance, one to the effect that we ought to respect and support the moral power of a person to “reason about right and wrong and regulate his conduct by the conclusions of that reasoning.”Footnote 20 Entrapment by the authorities violates this principle and should be prohibited.Footnote 21
Let me elaborate a bit more than Howard does on why this principle seems so compelling. Arguably, the state exists, in part, to secure the fundamental moral rights of individuals. Though there is disagreement about what fundamental moral rights individuals possess, almost all theorists concur that individuals must be protected from the kinds of depredations to their well-being that familiar prohibitions of the criminal law—against unjustified killing, assault, mayhem, and theft—enact. Though it is possible to imagine these prohibitions being secured adequately by threats of legal punishment, the limits on conduct that they embody will be better secured if all individuals internalize and observe them of their own accord. There is also, it seems, something to the notion that the state ought to encourage and support us as responsible moral beings, not simply as beings who can be made to behave by threats or promised rewards.Footnote 22 Thus, we expect government officials to encourage and support the moral powers of persons, rather than to undermine or belittle them. And since the exercise of our moral powers represents that which is highest or best in us, we expect private citizens to respect and encourage them as well.
Although I am mostly persuaded by Howard's account, I am not convinced that it shows all forms of pro-active policing to be indefensible. His account might show them to be morally fraught and thus in need of considerable judicial regulation. Yet Howard moves too quickly on two points: first, he seems to regard the principle against moral subversion as absolute in character, such that we should never act contrary to it. Yet principles are rarely absolute; often they have to be weighed against other principles in the pursuit of defensible social and legal policies.Footnote 23 Consider a close parallel. Penal retributivists typically insist on the principle that citizens should be punished only for their provable past criminal acts, not for their predicted future ones. Yet even some staunch retributivists concede that, in certain limited circumstances, we might preventively detain demonstrably dangerous individuals.Footnote 24
What other principles of comparable or greater weight might be at stake in pro-active policing? The obvious one has to do with the prevention of harm, and especially serious harm.Footnote 25 Police or other criminal justice authorities will occasionally catch wind of plots to harm people—perhaps many people—before those plots have been executed. Similarly, they will sometimes find themselves trying to catch and stop offenders who have already harmed others and escaped arrest, and who the authorities have reason to believe are intent on harming others in the future. Or, to take another kind of case, the authorities might suspect public officials of serious, ongoing corruption. Although corruption might not always result in harm to citizens, it is still a violation of the public trust by officials who will usually have sworn to honor and uphold it. This suggests a different principle that certain forms of pro-active policing might serve, one that requires the authorities to preserve the integrity of government operations.
Second, Howard draws no distinctions among the various ways in which the authorities might act to draw citizens into committing crimes. He says that government agents should not “cause” persons to behave immorally, “instigate” immorality, or “exacerbate” it.Footnote 26 More helpfully, he argues that we must avoid motivationally or epistemically subverting the morality of our fellow citizens.Footnote 27 We do the former when we create reasons for others to behave immorally, or strengthen existing ones. We do the latter if we alter our fellow citizens’ beliefs about the morality of their conduct or urge them to treat moral reasons as less than overriding. Intuitively, however, there seem to be significant differences between presenting others with opportunities to behave badly when we already have reason to believe they intend to so behave and doing any of the following: convincing others to adopt immoral aims when they did not have them to begin with, making opportunities to act immorally overwhelmingly attractive to individuals who already have immoral inclinations, ridiculing others if they fail to follow through on their (or our) immoral projects, or bullying others into behaving immorally. Simply put, it is one thing to offer those who already seem bent on behaving immorally the chance to do so; it is another to undertake concerted efforts to work persons up into behaving immorally by seeking to alter their motivations or beliefs. In some sense, the morality of those with active criminal intentions already seems subverted. Admittedly, we could respond to this apparent subversion in various ways. We could step back and “watch and wait” for them to violate the law. Once they do so, we could arrest them and attempt to convict them of crimes. Yet in some cases, such an approach would fail to prevent harm, perhaps grave harm, and this reality ought to have significant weight in our thinking about how to respond to such agents. Alternatively, we could attempt to convince those with nefarious purposes to draw back from them. This is a possibility that I will come back to. My point here is that offering individuals opportunities to do that which they are already inclined to do and might well have done anyway in the absence of the proffered opportunities seems a mild form of moral subversion compared with the alternatives.
Think about it this way: suppose that a friend of mine tells me that she is thinking about cheating on her taxes by underreporting her income, but that she is undecided, at this point, about whether to go ahead and do so. I could respond in various ways. I could urge her not to do so, appealing to her sense of communal responsibility or simply to the possibility that she might get caught and punished. Alternatively, I could assure her that most cheaters are not detected, especially if they do not substantially underreport their income. But suppose I leave it at that. If she cheats on her taxes, can I be said to be the prime instigator, though I played a small role in persuading her to do so? I think not. Yet suppose that I do more: I tell her that only fools accurately report their income, that the government is corrupt and is not entitled to her support, and that I will not respect her or want to have anything to do with her if she is an honest chump who faithfully pays her full share of taxes. Suppose that under my insistent pressure to cheat on her taxes, she gives in to her inclination to do so. Notice two things: first, my role in her cheating seems considerably more substantial the more I do to convince her to cheat. Second, it would be exceedingly odd of me, if I exerted strong pressure on her to cheat, to then turn around and criticize her if and when she does so. The greater my role in her cheating, the less moral standing I have to condemn her actions. She might reasonably say to me that “I would not have cheated if not for your insistence that I do so,” if indeed I pressured her. But she could not say that, at least not plausibly, if all I did was shrug my shoulders when she told me that she was thinking about cheating.
In a similar way, I contend that there are significant differences between offering opportunities to offend to individuals with active intentions to do so and coaxing, or worse, pressuring those individuals to offend. As the government takes a more active role in eliciting criminal conduct, it becomes increasingly unclear whether the offender would have acted criminally in the absence of the government's efforts. As the government's role becomes more substantial, its standing to punish the offending that results becomes compromised. At some point, the offending agent can rightly protest that “he would not have gone forward had the government agent not pushed and prodded him to do so.” Such a protest will have less force if he readily takes up opportunities to offend that are simply proffered to him by government agents. Granted, in offering such opportunities, government agents might be said to engage in limited forms of moral subversion. And I concede that the government might have other options when it learns that individuals have and are prepared to act on nefarious purposes. But those options might not be very good ones in some cases, though the government should be required to demonstrate this and that the targets of its investigations already had active intentions to offend.
Importantly, it is easy to be critical of pro-active policing when it is overwhelmingly focused on vice crime. In addition to the doubts that political and legal theorists have about the defensibility of criminal prohibitions focused on vice, there are other worrisome features of the pro-active policing of such crimes.Footnote 28 First, it is well known that it is easier to police vice crimes in poor neighborhoods than in more affluent ones, and this in spite of the fact that we might have good reason to believe that it occurs in both.Footnote 29 This means that poor persons who are mostly harming themselves will be disproportionately arrested, charged, and convicted of vice crimes. Such policing practices sit uneasily with a commitment to treating citizens equally before the law. Throw in the fact that the poor citizens who suffer the consequences of such pro-active policing crime will often be disproportionately African-American or Latino, and “wars” on illicit drugs, gambling, or sex will appear (and might well be) discriminatory.Footnote 30 Second, attracting or inducing criminal misconduct of mostly self-harming kinds among citizens who lack other meaningful opportunities to advance their interests ought to trouble anyone who believes in the promotion of equal opportunities for all citizens.Footnote 31 Persons who are desperate to eke out livings will often resort to vice crime in the face of bleak, or nonexistent, alternatives. Not only does pro-active policing of vice crime seem like “shooting fish in a barrel,” but society might seem complicit in throwing the fish into the barrel and keeping them there.Footnote 32 Nonetheless, it is one thing for the authorities to offer the poor opportunities to commit vice crimes; it would be quite another for them, in the face of refusals of those offers, to go further and cadge, coax, or pressure the poor to commit such crimes. It is bad enough for the government to leave criminogenic social conditions in place, ones that work to subvert morality. But it is still undeniably worse for the government to authorize its officials to more actively and insistently subvert morality.
If pro-active policing is to be employed in limited ways to prevent serious, undoubted harms, what are the conditions that must be satisfied for it be justified? First, as I have already indicated, the authorities should be required to have, and demonstrate to a judge that they have, probable cause to believe that the targets of their investigations have active intentions to engage in significantly harmful and legally prohibited actions. If satisfied with the government's evidence, the judge would issue a warrant to permit pro-active measures. The language requiring “significant” harm is, admittedly, vague. For the reasons just cited, I would not have the courts issue pro-active policing warrants for vice crimes. Even many property crimes, especially ones not involving active threats of bodily harm, might not be serious enough to take on the moral risks that pro-active policing poses. But massive frauds might well count as “significant,” even in the absence of risks of bodily harm or death. And in cases in which the risks of bodily harm or death are palpable, the courts should be prepared to authorize pro-active policing measures.
Crucially, we should not count someone's merely having a criminal history as evidence that the person has an active intention to offend. More than this would be required—some showing that the target's “criminal predispositions” are still active in the form of producing intentions to offend further. To permit citizens’ criminal histories to, by themselves, serve as legal bases for directing pro-active policing measures at them is to adopt an indefensibly pessimistic view of persons, one according to which they are always to be viewed in the light of their criminal pasts. We do and should want persons who have committed crimes to abandon their old ways and rehabilitate themselves. Hence, we should not have legal doctrines and policing practices that implicitly deny that persons can do so. The authorities should have to demonstrate that the targets of pro-active policing have active intentions to commence or continue offending.
How might the authorities show that individuals have active intentions to offend? In particular, how might they distinguish among pipe dreams, amorphous criminal intentions, intentions that individuals are unlikely to ever act on, and “active intentions” to engage in harmful criminal acts in ways that would convince a judge that pro-active measures were warranted? There is no use pretending that there will never be difficult judgment calls that the courts will have to make in issuing such warrants. Still, there are clear differences between individuals who have only vague criminal intentions or plans and ones who are actively seeking advice, help, or the resources needed to carry out their plans or intentions. The authorities might receive information from reliable undercover agents about criminal plans in the works or tips from informants. They could supplement these with surveillance that might reveal preparatory actions of various kinds. The courts should press the authorities to find such evidence, to provide the courts with evidence that something criminally substantial is under way and not simply being entertained or bantered about. As the scholarly literature on search warrants shows, forcing the police to articulate and defend their proposed course of conduct, even if only to the level of proof required by “probable cause,” discourages them from acting on flimsy hunches, forces them to articulate the grounds for their suspicions, and reinforces the gravity of what they are doing.Footnote 33
In addition to requiring the authorities to get warrants to proceed with pro-active measures, I would require them to gain permission from the courts regarding the specific pro-active measures that they seek to employ. In evaluating these measures, the courts should be guided by the principle that any opportunities to offend supplied by the authorities to the targets of their investigations should closely mimic the opportunities available in the real world circumstances in which the targets find themselves.Footnote 34 For it is only by limiting pro-active measures to such opportunities that we can have any realistic assurance that the crimes in question would likely have occurred in the absence of the pro-active policing measures.Footnote 35 Again, what such reality-mimicking pro-active measures will do is alter the timing or location of the offenses, by presenting opportunities here and now, rather than waiting for the targets to find them on their own. The authorities should not be permitted to make committing the target crimes more attractive or tempting than doing so already is to the persons under investigation.Footnote 36 Even such tactics as having undercover agents cultivate friendships or trusting relationships with their targets should be viewed warily by the courts, as such social bonds might be subsequently exploited by the authorities to induce targets to engage in criminal actions that, on their own, the targets would never have engaged in.Footnote 37
This constraint on pro-active policing measures can be clarified with some examples. For instance, if the authorities demonstrate to a court that a citizen has an active intention to hire someone to kill his spouse or boss, the authorities might reasonably be granted permission to have an undercover agent offer to commit the killing for a fee. But the fee should reflect something like the “market rate” for killings-for-hire, if there is one, or at least should not be so low as to make the undercover agent's offer more attractive than any offer that the target is likely to encounter. Or, to take another example, if the authorities can convince a court that a citizen has an active intention to commit a terrorist act involving the bombing of a public venue, the authorities might reasonably be granted permission to offer the target of their investigation a bomb ingredient needed to carry out the attack.Footnote 38 Yet since such offers would rarely be made in the absence of a fee, and perhaps a substantial one, the authorities should be required to incorporate one into their offer. What policing authorities should not be permitted to do is to manipulate the motivations of the targets of their investigations.Footnote 39 Yet this is precisely what befriending, coaxing, berating, pressuring, and threatening their targets is apt to do. Such motivation-changing strategies will and ought to leave us with substantial doubts about whether any resulting crimes would have occurred in the absence of the state's involvement.
Third, if the targets of pro-active policing measures refuse the opportunities presented by undercover police agents, then the agents generally should be required to desist from further efforts to entice, coax, or bully the targets into pursuing their criminal intentions. In refusing opportunities, targets appear to do precisely what we should want them to do, which is to abandon or renounce their criminal intentions before they act on them or go very far toward acting on them. In short, they are acting, or perhaps appearing to act, responsibly. Government agents should be required to respect such apparent renunciations and not seek to undo them, or else they will be more actively and directly engaged in the kind of moral subversion that Howard's principle prohibits. Of course, we might worry that the targets, in some cases, will not have really abandoned their criminal intentions but are instead suspicious about the offers presented by undercover agents. The targets might be pulling back only because they do not trust the offers, not because they have truly renounced their criminal intentions. Although this is correct, I would not usually permit undercover agents to try to undermine a target's apparent change of heart. Instead, the government should withdraw and bide its time. It might, after all, be able, at some later point, to convince a court to authorize another go at the target.
Fourth, I would require the authorities to demonstrate that no other means exist to prevent the harms for which they seek pro-active policing warrants. In some cases, alternative means will exist, such as actively staking out an area where they suspect a serious crime is about to occur or where serious crimes have been occurring. If alternative means exist and are not extraordinarily costly or apt to be ineffective, the authorities should be required to take them in lieu of acting contrary to the non-subversion principle. Put differently, even mild subversion of the morality of citizens should be something of a last resort. Granted, the language I have incorporated into this last resort requirement—stipulating that the alternative to pro-active measures must be shown to be “not extraordinarily costly or apt to be ineffective”—is somewhat imprecise. There might always be other ways to prevent the kinds of harms that pro-active policing measures seek to avert if the authorities have unlimited resources and vigilance. But they sometimes will have neither. Also, when the harms to be averted are grave and imminent, the courts might reasonably relax the “last resort” requirement somewhat, to permit pro-active measures even if other means might work (though it is uncertain that they will do so) or might not be too expensive (though they are somewhat so).
This last concession raises the question whether any of my other conditions on the use of pro-active policing measures should ever be relaxed. In particular, should we ever permit the authorities to go beyond “offering opportunities” to targets, or permit them to ignore their targets’ apparent renunciations of their criminal projects? Suppose that the authorities have probable cause to believe that a plot is under way to kill or injure hundreds or even thousands of civilians. Pursuant to a warrant, undercover agents have offered the target a needed bomb ingredient for a price, but the target rejects the offer. Would it be impermissible for the undercover agents to persist in their efforts to induce the target to accept the offer? What if all the agents do is offer to reduce modestly the price of the needed component, thereby making the offer somewhat more attractive? I am not convinced that we should prohibit such persistence across the board, though I concede that it should be, if possible, monitored and regulated. If the harms to be averted are catastrophic or nearly so, then some persistence seems justified. If possible, we could require the undercover agents to secretly record their transactions with the target, so that the courts will be in a position to evaluate whether the agents persisted a little or a lot. Such persistence crosses the line when it convinces an otherwise reluctant or ambivalent target to accede to the undercover agent's offer, not when it sweetens the offer and the target readily accepts it. It goes without saying that the line I am drawing here will be, at times, indistinct. The courts will have to make difficult decisions, in some cases, about whether to allow charges to go forward.
Finally, the remedy for failure of the authorities to abide by the strictures of their pro-active policing warrants ought to be the dismissal of all charges against citizens “captured” through illicit means. Persons charged because they succumbed to unauthorized pro-active policing measures should be permitted to argue and present evidence, in pre-trial hearings, that the authorities exceeded the remit of their warrants.Footnote 40 Under such an approach, criminal defendants would not find themselves in the awkward and, I contend, untenable position of having to admit, during trials, that they committed the crimes with which they have been charged, only to assert that they were entrapped into doing so and so should be excused from conviction and punishment. The remedy to police overreach that I support comports more comfortably with the claim that entrapment makes little sense as a full-on criminal defense.
III. OBJECTIONS, REPLIES, AND HARD CASES
A variety of objections to the account just outlined can be anticipated. First, it might be claimed that, contrary to what I have suggested, providing citizens with opportunities to offend does alter their motivations in ways that cloud whether they would have committed the crimes in question in the absence of the proffered opportunities. If we want to avoid subverting the responsiveness of persons to moral considerations, we should altogether eschew inducing them to commit crimes, even if only by presenting them with opportunities to do so that mimic real world ones.
So long as the authorities satisfy the probable cause requirement, they can hardly be accused of implanting criminal purposes in the minds of unsuspecting citizens and then drawing them into acting on them. The authorities are not so much altering the motivations of their intended targets as taking advantage of pre-existing ones. The more pertinent objection to what I propose might be that instead of offering already-intending targets opportunities to act on their intentions, the authorities should contact the individuals whose criminal intentions concern them and attempt to convince those individuals to abandon their intentions. Indeed, it is a bit hard to see why those concerned about even the mildest forms of official subversion should be satisfied with the authorities passively standing by and waiting for those with nefarious purposes to act so that they can then react by arresting and charging them. Intervention of some more positive kind by the authorities would seem called for; refraining from further subverting the morality of those who seem intent on ignoring the moral reasons they have against acting in certain ways seems insufficiently affirming of citizens’ moral powers. Supporters of a more or less absolute ban on subverting the morality of persons might seize on this point and cast it not as a weakness but as a point in favor of their position. Offering citizens the opportunity to offend is almost never, they might say, the “last resort” that government agents have.
In response to this, I believe that we might reasonably doubt that we want the authorities to take on such a more active moralizing role. It is one thing to censure criminal conduct by punishing it, and, more positively, for government officials to, in a general way, exhort citizens to abide by the law, assuming that the law enforces defensible moral norms. But it is another thing to ask or expect those officials to engage in more personal and directed moralizing, prior to the commission of criminal acts. That is the kind of moralizing that we believe parents or other family members or friends, not government officials, can usefully engage in. Also, notice how awkward it will be if the authorities, though acting with probable cause, turn out to be mistaken in their attribution of criminal intentions to citizens. They will show up at citizens’ doors and implore them to abandon their criminal intentions, only to discover that the citizens have no idea what they are talking about. Probable cause, as we all know, is a relatively weak test, one consistent with errors on the part of the authorities.
A more worrisome point is that all such moralizing will do in some cases is tip off citizens with active criminal intentions that the government is on to them. Though this might convince some of them to abandon their plans for moral or self-interested reasons, it will push others of them to become more wary and secretive as they carry on with their intentions. This will make it much harder for government authorities to avert the harms that those individuals are plotting. If the harms eventuate, the government's moralizing conduct will appear lame—the more so the greater the harms. The fact is that some people with malevolent intentions cannot be persuaded to abandon them. It seems a vital role of the state to prevent the harms they intend, even if by doing so its agents appear to invite them.Footnote 41
This brings us to a second objection. It has been claimed that what is essentially wrong with entrapment is that by inducing citizens to commit crimes, which are public wrongs, the state “indicates that it does not regard that conduct as worthy of condemnation.”Footnote 42 As Duff et al. make clear, they are not limiting their argument to cases in which state agents go beyond providing targeted citizens with opportunities to commit crimes. They seem prepared to condemn any inducement by state officials on the grounds that the state will then find itself in the apparent contradiction of both condemning the conduct in question (by prohibiting it) and communicating that the conduct is acceptable. If private citizens induce the public wrongs, that is a different matter, or so Duff et al. say.Footnote 43 It is when public officials, or those acting under their aegis, do so that we have a contradiction on our hands. The remedy in such cases is, in their view, a stay of prosecution.
There are a number of puzzling features of this argument. In particular, the way in which the state is communicating the acceptability of the targeted acts is not explored carefully. Intuitively, it is hard to see how simply presenting opportunities to offend to citizens who have active intentions to do so “says” that the offending is acceptable. The undercover agents who make the offers will not identify themselves as state agents or as agents acting with the imprimatur of the state. To do so would likely scuttle their efforts to prevent the harms with which they are concerned. Also, once the offers are taken up and the targets of police investigation are arrested and convicted, their punishment will surely reinforce the notion that society condemns the conduct in question.
We can, of course, imagine circumstances in which there would be a palpable contradiction in the policing actions of state agents. Suppose that the legislature annulled criminal prohibitions of long standing. Suppose also that police arrested and local prosecutors, for some reason, continued to charge people for violating the now-defunct prohibitions. Or, suppose that prosecutors announced that they would no longer charge citizens with violating certain kinds of prohibitions, but then did so, and perhaps poured salt in the wound by having the police engage in pro-active measures designed to persuade citizens to violate the relevant prohibitions. Or, suppose that the undercover agents identified themselves as such to their targets while also assuring them that they would not face any legal consequences for seizing the opportunities being presented to them. In any of these three scenarios, we might have a clear violation of what Duff et al. term the “integrity principle.”Footnote 44 But when state agents employ limited pro-active policing measures of the kind I defend and do so undercover, they seem indistinguishable from private citizens who offer their fellow citizens opportunities to commit crimes.
In response, Duff et al. might argue that even if there is no subjectively experienced difference between public agents who offer opportunities to offend and nonpublic agents who do so, there is an objective difference. The former are state agents or authorized by them. True enough, but not only is the contradiction to which they point not apparent so long as the state agents remain undercover and offenders are subsequently punished, but Duff et al. do not spend much time attempting to convince us that no useful distinctions can be drawn between merely presenting targeted citizens with opportunities to offend and, in the face of citizens declining those opportunities, proceeding to pressure citizens, more or less actively and aggressively, to take up the opportunities. As I noted earlier, we do expect state officials to publicly encourage self-restraint on the part of citizens, especially insofar as they are tempted to ignore the strictures of the criminal law. Granted, the pro-active policing I defend does not seek to reinforce such self-restraint; it tests whether it exists in response to reasonable suspicions that citizens have active intentions to commit harmful acts. Yet it is hard to see how this amounts to state officials saying that it is all right for citizens to go ahead and commit serious crimes. Also, it would seem that more insistent pressuring by those officials is clearly worse, but the Duff et al. account seems unable to explain why this should be. I doubt that what makes such insistent pressuring worse is that it communicates more forcefully that the behavior in question is not condemnable. Rather, what makes it worse, as Howard's account suggests, is that it more vigorously subverts the morality of the citizens who are its targets. On my account, by doing so, it should elevate our doubts that the crimes in question would have occurred but for the actions of the authorities. Those doubts, in turn, are what should undermine our sense that the state acts appropriately in convicting and punishing such offenders.
A third concern about pro-active policing has been raised, although it is one that, presumably, would apply to any defense of such measures, not just my own. Jonathan Carlson points out that when such measures are designed carefully and implemented successfully, there is very little chance that the kinds of harms that the authorities seek to prevent will occur.Footnote 45 If the authorities offer bomb ingredients, for a price, to individuals who seem intent on committing a terrorist act, the ingredients on offer will either be fake or the targets will be arrested before they can use real ingredients. Carlson argues that if we understand the act requirement of the criminal law as existing in order to limit punishment to persons who have committed, or attempted, acts that portend harm, there is something puzzling about the punishment of persons whose acts could not have caused harm because the authorities carefully arranged things to prevent it. He suggests, plausibly it seems to me, that the targets’ actions, in such cases, are comparable to “impossible attempts” under the criminal law.Footnote 46 Those who impossibly attempt crimes might intend harms and even grave harms; yet they employ means that could not have produced them. The question is whether impossible attempters should be punished at all, or similarly to those who attempt crimes and simply fail (for reasons beyond their control) to complete them.
The answers to those questions depend on whether one is a “subjectivist” or an “objectivist” about the punishment of failed attempts.Footnote 47 Subjectivists, who focus on the intentions and actions of agents who violate the law, tend to argue that impossible attempters should be punished just like those who attempt crimes but fail to complete them due to circumstances beyond their control.Footnote 48 Failed attempters, in turn, should be punished in the same way as those who achieve their malevolent aims. Subjectivists see the harms, or lack thereof, that result from the violation of criminal prohibitions as largely irrelevant to the culpability of offenders and thus their appropriate punishment. Objectivists believe that the harms actually produced by those who attempt crimes should matter for purposes of assigning them appropriate punishment. Accordingly, failed attempters, and perhaps impossible attempters, should be assigned less punishment than “successful” ones, though they should be punished.Footnote 49
The dispute between subjectivists and objectivists is not one that I can hope to resolve here. Elsewhere, I have defended an objectivist account of the punishment of failed (and some impossible) attempts.Footnote 50 According to that account, harm ought to matter in our determinations about how to punish failed and impossible attempters because it is harm, rather than culpability, that plays the lead role in devising a defensible sentencing scale. What this means with regard to Carlson's concern is this: the targets of successful pro-active policing measures should be punished, albeit less than offenders who actually produce the harms that they intended. It would be odd to punish individuals who hire imposter hit men, or who purchase fake bomb ingredients, just like we punish those who hire real hit men who then kill people, or who purchase real bomb ingredients and proceed to commit terrorist acts. But we can justify some punishment of the targets of pro-active policing, just as we punish those who initiate failed or impossible attempts.
To this point, I have insisted that the authorities must be able to demonstrate, to a court, that the targets of their pro-active policing measures appear to have active intentions to commit serious crimes. It is natural to assume that the probable cause requirement is satisfied only if the police identify a specific agent with an active intention to offend. But suppose that a series of violent rapes have been occurring in a public park, ones for which the authorities have no identified suspects. The authorities could actively surveil the park in an attempt to catch the perpetrator in the act. Yet the park might be large and the perpetrator's acts intermittent. So instead of “watching and waiting,” the authorities hatch a scheme to send an armed undercover female agent into the park at night to see if they can lure the perpetrator into an attack. Should a court approve this type of pro-active policing, and this in spite of the fact that the authorities can identify no specific individual with an active intention to commit the crime in question? I am inclined to answer this in the affirmative, especially so long as the authorities satisfy the other conditions I have specified for pro-active policing measures. The police are “reacting” in such a case, and to serious offending; they are not simply “fishing for rapists,” as they would be if they sent an undercover agent into the park in the absence of any recent attacks. Admittedly, they might “catch” someone other than the targeted perpetrator if some other person attacks the undercover officer. Yet I see no problem with arresting and prosecuting such an offender, especially so long as the police did nothing to significantly alter the incentive structure to commit such attacks. Surely, having an undercover agent walk through the park at night, as lots of ordinary citizens might do and are entitled to do, does nothing significant to alter that incentive structure.
Yet if I am willing to stretch my account in order to cover this kind of case, would I be willing to do so to cover a different kind of case? Recently, Florida police put ads on a number of websites offering those who accessed the sites the opportunity to have sex with a minor.Footnote 51 A surprising number of individuals responded to the ads by showing up at designated locations where the illegal sex supposedly was to occur. They were promptly arrested and charged with soliciting sex from a minor. Notice that, in this case, the police not only had no identifiable suspects to whom “opportunities to offend” were offered; they may have had no verifiable knowledge (versus suspicions) that crimes of the type under investigation were occurring. Would my account permit such a sting operation, even assuming that the authorities sought prior approval for it by a court? After all, I have indicated my unease with the pro-active policing of vice crime and insisted that such policing must be premised on at least a “residue of reactivity” in the form of demonstrable probable cause of someone's (even if no identifiable person's) having active intentions to offend.
My unease with pro-active policing of vice crime does not extend to crimes for which there are clear victims, as there surely are when those alleged to be offering sexual services are underage and those purchasing their services have plausible evidence that this is so (as they presumably did in the Florida sting operation). That part of the underage sex sting case is easy. The harder part is the seeming lack of any probable cause, by the authorities, for believing that there were individuals (whether identifiable or not) with active intentions to engage in the relevant crimes. Let us suppose that the authorities really had no idea whether they would get any “takers” on their website offers. Were they not, then, just “fishing” in ways that my account precludes? Again, the concern about such fishing is that it might spur the commission of crimes where none would otherwise occur. We ought to have that concern especially when it is far from clear that there is already a market, so to speak, for the offenses in question such that the government's pro-active efforts can be made to replicate the options in that market.
I would generally not be willing to eliminate the probable cause requirement for pro-active policing. The authorities should have to provide evidence that crimes of the kinds with which they are concerned are occurring. Even if the victims of certain kinds of offenses are strongly reluctant to contact the police, or are actively discouraged from doing so, the police might be able to meet the probable cause requirement in some cases. They might have informants who can alert them to the occurrence of such crimes, including individuals whom they have arrested for similar crimes. And if only a few victims report their cases, the police might have enough to go before a judge and show that there are active participants in crimes of the relevant kind in the jurisdiction. Such evidence would bring consequent pro-active policing measures closer to the one employed in the unidentified park rapist scenario.
Other hard cases exist, however, and I shall have to put off discussing them in detail to another occasion. In particular, the limited kinds of pro-active policing measures I have defended might be inadequate to address the problems posed to law enforcement officials by organized crime or highly sophisticated terrorist organizations. Like it or not, there are individuals whose lives revolve around committing serious crimes, and who are highly skilled at it and at evading the authorities, even to the point of employing lawyers to aid and abet their activities. Worse than this, professional criminals might be prepared to deal harshly with individuals who attempt to infiltrate and thus expose their activities to criminal prosecution. If such organizations are to be penetrated and brought down, the authorities will have to either co-opt one or more of their members or employ undercover agents. I suspect that the activities of these government agents might have to, at times, extend beyond offering their targets opportunities to offend. This will especially be true if the authorities are to get the “big fish” as opposed to the smaller ones on the fringes of such organizations who might be vulnerable to the kinds of pro-active offers that I support. Importantly, such criminal organizations pose problems not only for my account, but for those who eschew all forms of pro-active policing. Indeed, my sense is that too much of the literature on entrapment ignores such organizations, focusing instead on lone would-be offenders or groups of them who are less sophisticated and perhaps not thoroughly committed bad actors.
IV. CONCLUDING REMARKS
I have defended limited and judicially regulated forms of what some will regard as “entrapment.” When the authorities exceed those limits, the remedy is the dismissal of charges in a pre-trial hearing, not the assertion of a defense by the accused at trial. When the harms to be prevented are significant, the authorities can, with probable cause and within the specified limits, utilize pro-active policing measures that elicit criminal acts. In doing so, they do not seek to shore up the morality of their targets, who are, after all, individuals already bent on ignoring moral constraints enforced by the criminal law. If this is moral subversion, it is a mild form of it and one designed to prevent significant harm.
Predictably, it will be difficult, in some cases, for persons accused of crimes to demonstrate, in pre-trial hearings, that the authorities exceeded the remit of their authorizing warrants. This will especially be true when the accused claim that they refused the initial offers of the authorities only to have the authorities persist and pressure them to accept the offers, which the targeted individuals eventually did accept. Ideally, the state agents involved in pro-active policing efforts should record their transactions with their targets. Doing so would enable the courts to determine whether the proper limits were observed. In reality, however, it might not always be feasible to make such recordings. Some targets will be suspicious of those they are dealing with and might wish to search them ahead of any transactions. In such cases, we will have to rely on the proper training of the agents who are authorized to engage in pro-active policing and the respect for the limits of their authority that such training should inculcate.
