The entrapment defense is the primary regulation of undercover operations. Though courts and commentators say that the state should not punish an undercover defendant who does not offend outside such operations, no existing theory fully justifies this principle or the defense (without calling into question basic commitments of American criminal law): (1) Under retributive theory, the entrapped are blameworthy, given that a defendant who succumbs to the same temptation from a private party is blameworthy. (2) Fairness theories fail to justify the defense, given that existing law refuses to recognize unfairness in particular distributions of criminal temptations or in highly selective law enforcement. (3) Existing institutional theories fail to explain the precise political danger of entrusting officials with the power of undercover operations, given that targets can refuse criminal opportunities. (4) Among other problems, existing economic theories rest on a false dichotomy between true offenders who commit crimes outside of undercover operations and false offenders who don’t. The paper reconstructs the latter two theories, overcoming existing weaknesses to fully justify the defense. The institutional theory rests on the high degree of fortuity to an individual’s legal compliance, the state manipulation of which creates a serious risk of political abuse. The economic theory arises from the need to correct a principal-agent problem that motivates police to favor unproductive tactics yielding high numbers of low value arrests (even if the resulting offenders are not “false”). These theories reveal that the normative consensus is misguided; the defense should not be conceived as a way of protecting individual defendants who do not offend outside undercover operations. The two rationales point to the desirability of tailoring a specific entrapment defense to each crime, but the paper also describes the best unitary defense.


Law and Economics

Date of this Version

September 2005