Entrapment and Retributive Theory

Mark Tunick

in Retributivism

Published in print March 2011 | ISBN: 9780199752232
Published online May 2011 | e-ISBN: 9780199895342 | DOI:
Entrapment and Retributive Theory

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It is often argued that retributivists must oppose the entrapment defense for various reasons (such as that entrapped defendants have nonetheless broken the law), but this chapter explores some reasons why a retributivist can support an entrapment defense. First, entrapped defendants may be less culpable than the “privately enticed” insofar as they do not cause harm: since the police control the situation, no actual harm is caused, which may bear on one’s culpability. Furthermore, if one’s predisposition were weak and required substantial police coaxing to be triggered, we might say that the police action and not the defendant caused the crime in the relevant sense. Also, using Robert Nozick’s account of coercion in a novel way, entrapped defendants may be less culpable insofar as their action was not fully voluntary; unlike in private enticement cases, they necessarily underestimate the probability of being caught before making their choice.

Keywords: retributivism; punishment; justice; entrapment; affirmative defense; culpability; coercion; Robert Nozick; enticement; harm

Chapter.  10964 words. 

Subjects: Criminal Law

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