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Journal of Social Issues, Vol. 43, N o . 3, 1987, p p . 57-59

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Ethics and Entrapment
Gerald Dworkin

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UniversiQ of Illinois,Chicago

Braithwaite, Fisse, and Geis share my general aversion to the ways in which
proactive enforcement techniques have been used in the past by law enforcement
officials (Dworkin, 1985). With respect to the future use of such techniques, they
accept the restriction I suggested: that there be probable cause to suppose the
individuals being targeted are already engaged or are intending to engage in
activity of a similar nature. Indeed, they suggest additional safeguards (the
protection of third parties) and a limitation on the nature of the crimes being
investigated (not victimless ones). They disagree, however, with part of the
reasoning 1 used to reach my conclusions, and they believe the critics of covert
facilitation should be advocating a greater use of such techniques in the areas of
white-collar crime and in the monitoring of public officials. I shall confine my
comment to these points.
In my 1985 article I argued that there is something fundamentally unjust
about law enforcement officials encouraging or tempting citizens to commit
crimes for the purpose of detecting such crimes. Braithwaite et al. are skeptical
about a “right not to be tempted.” I do not wish to repeat my arguments here but
I think that perhaps one source of the disagreement between us concerns what
cases Braithwaite et al. and I have in mind. We may disagree more about what
counts as “encouragement” than about its legitimacy. Consider, for example,
the kinds of cases Braithwaite et al. present as legitimate uses of covert facilita-
tion in the areas of white-collar crime and regulatory investigation: e.g., report-
ing to doctors fictitious side effects of drugs to see whether they are reported, an
undercover operative putting herself in a position to be harassed by an employer,
undercover employees advising management of a shipping company that condi-
tions are likely to produce a spill, placing signaling devices in waste disposal
trucks to monitor the load, selling cars with a known odometer reading to dealers

Correspondence regarding this article should be addressed to Gerald Dworkin, Department of

Philosophy, University of Illinois, Chicago, IL 60680.

57
0022-4537/87/0900-0057$05.0011 0 1987 The Society fur the Psychologlcal Study ut Soc~allssuea
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to see what happens, setting up an undercover “doctor” to tape the pitch of sales
representatives from drug companies, and sending out letters from male and
female applicants to test for employment discrimination.
Whatever worries I might have about such techniques, I do not think of any
of these as cases in which crimes are encouraged. Rather, these are cases in
which citizens-I use this term to remind us that potential criminals are citizens
too-are provided with the opportunity to commit crimes if they are so inclined.
They are not invited or requested to commit crimes. Some may regard this as
hairsplitting since in either instance a crime is made more likely to happen. But,
as I emphasized in my 1985 article, not every way of making a crime more likely
to happen should be considered as facilitating crime. For example, if we shift
enforcement resources from one area of the city to another we make it more
likely that crime will occur in the area in which we have reduced enforcement.
Why should we regard the difference between providing opportunities for
crime and inviting crime as morally significant? (Of course, if the opportunity is
particularly tempting we may have an equal aversion to this as well.) Because
our best model of fairness for a criminal justice system thinks of the law as laying
down standards to be obeyed and only punishing violators who have chosen to

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disregard those standards. Punishment is just because individuals have selected
themselves for such treatment. To the extent that we invite, encourage, or sug-
gest that people commit crimes-even those people who we have reason to
suppose are already disposed to commit such crimes-we produce an in-
coherence in the criminal justice system. We say that x ought not to be done, but
we invite people to do x.
But, it might be replied, in cases where we create the opportunity to commit
crime, are we not tempting people to break the law and is that not equally
incoherent? It seems to me quite different to present a car with a known odometer
reading to a dealer and then to observe whether he sets it back, or to send white
and black couples to a realtor to see whether they get equal treatment, than to
suggest, invite, or urge the commission of crimes (even to persons we have
grounds to suppose have already engaged in such activity).
Even if one agrees with my claims so far, it does not follow that we ought
never use such techniques. It might be that particular crimes a r e s o difficult to
detect by reactive enforcement techniques that our only choice is crime facilita-
tion. Or it might be that particular classes of people are legitimate exceptions to
the unfairness I mentioned. Braithwaite et al. seem to argue that white-collar
crime and the class of public officials are just such exceptional cases.
In the case of corporations, Braithwaite et al. argue that the requirement of
probable cause be dropped. Enforcement officials should be allowed to go on
“fishing expeditions.” Their argument relies on one false premise and one
irrelevant one. Their first premise is that the requirement of probable cause is
grounded in the value of privacy. The second is that corporations have no right of
privacy.
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With regard to the grounding of the requirement of probable cause, I do not
think that privacy must play a major role. Instead, the requirement is grounded in
59

an objection against random testing of people's integrity. Such tests can be done
in ways that offend against privacy but they need not be. Consider the technique
used by the Portland, Oregon, fencing detail. Having purchased color television
sets at wholesale prices (under a Law Enforcement Assistance Administration
grant) they made the rounds of bars, offering to sell the sets cheaply because they
were stolen. I object to such techniques, not because they invade privacy but
because random individuals are having their integrity tested. If there are good

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arguments for the probable cause requirement that do not depend on privacy
alone, then Braithwaite et a]. do not yet have an argument for their weakening of
the requirement.
Their second premise-that corporations do not have any right of privacy-
is irrelevant. When we investigate corporations we do not investigate some
abstract entity. We investigate people who happen to be employed by corpora-
tions. If such people have rights of privacy, as Braithwaite et al. concede, then it
is irrelevant that these rights do not hold for the corporation as a collective entity.
Would Braithwaite et al. also urge that the normal restrictions on wiretapping be
ignored on the grounds that corporations are not protected by constitutional
protections'?
The other class of exceptions that Braithwaite et al. urge-the random
testing of elected officials-is one with which I have more sympathy. It is
plausible to maintain that elected officials ought to be held to a higher level of
accountability than other public or private employees. I would be inclined to

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accept a certain amount of random testing under the following conditions: First,
there should be an announcement that such programs may be periodically imple-
mented. Politicians would know what they are getting into when they run for
office. Second, the testing would not involve temptations of such magnitude that
they could be regarded as overriding the will of the persons concerned. Third, for
reasons already emphasized, 1 would prefer that the testing took the form of
offering opportunities rather than of inviting criminal acts. But, as Braithwaite et
al. rightly claim, the difficulties in detecting bribery may require the stronger
form of testing as well.

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Law and Philosophy. 4 . 17-39.
References

Dworkin, G . (1985). The serpent beguiled me and I did eat: Entrapment and the creation of crime.

GERALD DWORKIN is Professor and Chair ofthe Depurtment of Philosophy ut

the University of Illinois ut Chicago. His most recent book is Autonomy and
Choice: Theory and Practice, forthcoming from Cambridge University Press.