Integrity in Criminal Justice: A Kantian Assessment
of the Morality of Unjust Justice
Entrapment and Agent Provocateur: What Would Kant Say? Applying the
Categorical Imperative
“Only crime and the criminal, it is true, confront us with the perplexity of radical evil; but only the hypocrite is really rotten to the core.”
Hannah Arendt – On Revolution (1963)
Alina Oprisor (LLM Candidate)
from the
International and European Law: Public International Law (LLM track)
Supervised byProf. Mr.Dr. H.G. (Harmen) van der Wilt
Amsterdam , Netherlands
1 Table of Contents
Abstract………...2
I. Introduction……….2
II. Research Questions ………...5
III. Methodology and Materials ………....5
IV. Delimitations ……….7
V. Understanding Kant: What Is His Morality All About? ………...7
1. Kant’s Idea of Freedom as Autonomy………...7
2.Kant’s Idea of Morality: The Motive That Matters – Doing the Right Thing for the Sake of Duty ………...10
3. Kant’s Supreme Principle of Morality: The Categorical Imperative ………...11
4.A Famous Kantian Case. Lying to a Murderer: A Conceptual Application and Defence of the Categorical Imperative ………...13
5.The Relationship between Law and Morality and Justice: The Categorical Imperative as Linchpin ………. 18
VI.Entrapment and the Law: What Is Wrong With It? ... 19
1. Entrapment in Practice: Does Any Kind of (Official) Conduct Constitute Entrapment? Sting Operations, Manna from Heaven Operations, and the Objectively Unacceptable Conduct Criterion ………. 22
2. More Entrapment Jurisprudence ………...26
VII. What Would Kant Say, Whom Would He Defend? Victims and Villains, Offenders and Law Enforcers: Applying the Kantian Morality to Entrapment - Envisioning a Kantian Criminal Justice System - ………. 30
VIII. Conclusions……….. 35
2 Abstract
Entrapment by agent provocateur is a law enforcement practice fraught with ethical considerations. Entrapping people into crime commission can result in particularly unfair consequences for the administration of justice. This paper analyses the morality of the practice and of the agent provocateur conduct to establish the limits within which it is performed, with the aim of ascertaining whether it achieves real justice in the criminal law setting or rather contributes to unnecessary injustice. An assessment of the morality of entrapment is carried out on the basis of Kant’s categorical imperative. To illustrate the importance and correct application of the categorical imperative, an overview of Kant’s moral system is offered in the beginning of this paper. The place of the categorical imperative is underlined in relation to all other elements that make up Kant’s system, as the categorical imperative cannot be understood solely as a self-standing concept. In the context of a case study involving ‘a murderer at the door’ a conceptual application and defence of the categorical imperative is proposed. The defence also serves the purpose of suggesting early on that entrapment may pass the test of the categorical imperative, subject to some qualifications. It is further demonstrated how the categorical imperative can be used to realise the conceptual connection between law, morality and justice. The paper then proceeds to a survey of entrapment through entrapment scenarios, both hypothetical and from jurisprudence and continues with an analysis of the law from a Kantian viewpoint, aiming to establish if the law is sufficiently moral in its current treatment of entrapment or whether more can be done in the legal pursuit of justice. The discussion ends with some conclusions.
I. Introduction
Kant’s account of morality (and freedom) that emanates from his ethical writings carries potent implications for justice.His system of morality is sophisticated, categorically objective and generally superior, in that it proposes an almost mathematical morality.
3
On the basis of this morality, this thesis conducts a moral investigation1 into the justice of the
ethically challenging state-sanctioned practice of entrapment by agent provocateur, while aiming to estimate the integrity of the criminal justice system in this regard and likely offer some purely Kantian guidelines for improvement.
The focus is on the morality of the agent provocateur conduct, as well as on the morality of the offender’s behaviour. Brief procedural recommendations are suggested with regard to appropriate remedies in accordance with the results produced by the moral analysis of the law as it currently stands.
Agent provocateur entrapment is a practice which immediately raises eyebrows due to the ethical implications it carries butthe author observes that the judiciary appears to be doing a reasonably good job at overseeing that entrapment occurs in a morally legitimate manner, despite criticism to the contrary.
It is this author’s conviction that Kant’s moral system through his categorical imperative can help guide the judiciary even more. His morality is filled with the potential to create a world of more responsibility and less excuses.
The defendant knows when he takes the bait laid out by agent provocateursthat he is engaging in unlawful activity; hence it does not seem fair that he should always be permitted to shift attention away from a wrongdoing which he chose to commit on the conduct of the agent provocateur.
Conversely, situations are presented, hypothetical and from entrapment case law, when the obnoxious agent provocateur conduct indeed suffices to trivialise the crime of the defendant, irrespective of whether he had criminal predisposition or not. This is measured in line with the formula of the categorical imperative.In so doing, the agent provocateur’s position of power and authority, the fact that he has the upper hand over the defendant, as well the reality that an
1“in a ‘moral inquiry’ we might ‘deepen our understanding of values such as justice.’ [...] the ‘substantive moral
4
agent provocateur’s own criminal predisposition can go unmasked, even if triggered, by means of their being immune from prosecution, are taken into account.
Notwithstanding these heavy disadvantages for the defendant, it is shown that these aspects alone cannot always justify downplaying the defendant’s own wrongdoing, especially when
they clearly know they are engaging in crime commission.
Ignorantialegisneminemexcusat.Nemocenseturignorarelegem.
Certainly, law enforcers should not be allowed to become oppressors but neither should individuals be allowed to make a mockery of the law and in this case, of the criminal justice system; to break the law and hope to get away with it.
The author is interested in establishing whether and to what extent it is possible to bridge the disparities and imbalances arising in entrapment situations, by applying a morality that is categorical and applies in the same undifferentiated manner to everyone, irrespective of circumstancesand consequences, on the assumption that it is possible for human beings to do the right thing if only they access and employ their pure reason and not fall prey to the weaknesses inherent in human nature.
This author believes the Kantian ability to act morally has the power to shape a flawlessly just society and a flawlesssystem of justice. In this regard, the author is not necessarily arguing that the legal should be inclusive of the moral but rather that morality should inform the law.
It is not necessary to legislate morality or make the law absolutely moral but it can be an exercise of great social value if morality informs the law with regard to serious matters, much like a checks and balances exercise. The law should not exist in a moral vacuum and as it can be remarked from the jurisprudence on entrapment it neither pretends to, nor desires so. Justice is best served when there is a harmonious communication between the two.2
2 “justice not primarily as an abstract idea, but as a set of social expectations to be realised in practices that will,
in effect, lubricate the complex working arrangements of society, and effectively relate its elements.” in Cotterrell, R. (2010) Durkheim on Justice, Morals and Politics, p. 4; “‘Justice’ writes Hart, ‘constitutes one segment of morality.’ He goes on to point out that not all moral criticism of the law is ‘made in the name
5 II. Research Questions
The central question guiding this thesis askswhether and to what extentmorally valid justice can be achieved by unfair legal means. In this connection it focuses onwhether the law can have any authentic social value if it does not abide by considerations of morality. Can morality principles regulating just behaviour in ordinary circumstances be successfully applied in the legal realm, e.g. to the practice of entrapment?
Complementary sub-questions directing the investigation and analysis ask: Can a line be drawn between legitimate crime detection and unacceptable crime creation? How can the issue of criminal predisposition be resolved in the case of an entrapper (agent provocateur)? Perpetrators and justice-seekers – how can one tell who is who, when the justice-seekers are allowed to become perpetrators? Intent, motivations for action – do they even matter, and to what extent? Is it morally possible and legally sound to try and render justice for committed offences through the commission of another offence? What are the standards of decency and fair play with which the activity of an agent provocateur is contrasted? Can morality provide an answer and fill potential gaps in the law?
III. Methodology and Materials
This thesis uses a methodology which mainly adopts a critically normative standpoint from the internal perspective and conducts an analysis of the law in action (lexlata) geared towards a critical morality and based on a well-founded moral theory independent of the legal system.
The utilised moral theory is Kant’s morality as advanced in the Groundwork for the
Metaphysics of Morals. The main criterion for the morality analysis is the categorical
imperative.
The author emphasises that it does not intend the thesis to be prescriptive as such but merely to serve as a useful guide.
ofjustice’ even though, for him, ‘justice [has] special relevance in the criticism of law’.” in Gardner, J. (2010) Hart on Legality, Justice, and Morality, p. 15
6
Classic descriptive legal research is a further paradigm of legal research employed in this thesis (mainly in section VI.).
The thesis also displays predominant descriptive (section V.), critically evaluative (section V. and VII.), comparative (section VI.)and subtle normative (section VII.) methodological nuances in the context of a distinctively conceptual tone which keeps the discussion mainly in the realm of the theoretical.
The materials selected for this research consist of books on morality, journal articles on morality and entrapment, case comments on entrapment, a publication review, and some newspaper excerpts reporting entrapment decisions, as well as an online course on Kant’s morality.
The case law that has been analysed stems mainly from the common law tradition, with one reference from the ECtHR. The logic behind selecting common law jurisprudence is inadvertent, rather than intentional but it accurately reflects the reality that common law countries have been seriously active in the regulation and constraint of law enforcement investigatory practices such as entrapment.
In this author’s appreciation, the value of this thesis consists in its exploration from an abstract standpoint of the possibility for the criminal justice system to embrace ethical considerations in its interactions with the citizens and its enforcement of the law. Rather than conducting an assessment from the viewpoint of a classical theory of justice, this thesis investigates whether it is a reasonable endeavour to assume that criminal law can be harmoniously merged with the requirements of morality, as proposed by an established moral system.
7
The discussion on entrapment does not concern itself with the legalistic distinction between forms of entrapment. The topic of this paper focuses on entrapment by agent provocateur. While this author acknowledges the existence of the separate practice of private entrapment, she dares to anticipate that a moral analysis of private entrapment would yield mainly the same results, as it would be conducted on the basis of the same considerations. A possible significant difference would relate to how the non-state agents should be punished, where their actions would result in the commission of offences and undermine the integrity of the criminal justice system to an intolerable degree, seeing how they are not an authorised arm of the law. Additionally, an absolute ban of private entrapment, rather than attempts to regulate it, would potentially emerge as more appropriate, however this is beyond the scope of this paper.
Chiefly in relation to the offenders, the morality analysis is premised on their intact mental capacities and no case was identified either where there were concerns of mental impairment. A morality examination of the conduct of mentally impaired individuals would reasonably be devoid of any worth, as no valuable discussion could be had of their ability to act from a position of pure reason, unless endorsed by developments from neuroscience.
V. Understanding Kant: What Is His Morality All About?3
1. Kant’s Idea of Freedom as Autonomy
Immanuel Kant is a heavy but extremely influential philosopher who insisted that people have a categorical duty to respect the dignity of persons and not to use them as mere means even if the ultimate goal is geared towards achieving good ends.
3The summary of Kant’s morality as expounded in the Groundworkfollows Professor M. Sandel’scourse (2009)
Justice: What's The Right Thing to Do? Lecture 06: "Mind Your Motive" and Lecture 07: "A Lesson in Lying", Harvard University from Harvard University andSandel, M. (2009) Justice: What's The Right Thing To Do?, pp. 58-74
8
He published his second most important work, the Groundwork for the Metaphysics of Morals in 1785, at the age of 6l, in which he laid the foundations of the supreme principle of morality and offered a powerful explanation of the concept of freedom.
Kant famously repudiated utilitarianism, strongly believing that all human beings have an inherent dignity worthy of respect. The reason the individual is sacred or entitled to bear rights according to Kant, does not flowfrom the idea that human beings own themselves but from the idea that they are all rational beings, i.e. beings capable of reason. Additionally he regards humans as autonomous beings, i.e. able to act and choose freely. This capacity for reason and freedom is not the only asset human beings possess. They also have the capacity to feel pain and pleasure, to suffer and seek satisfaction.
Kant admits the utilitarians were on to something and not completely wrong. It is naturally expected that human beings try to avoid pain and seek pleasure instead. Kant does not deny this but Jeremy Bentham’s4assertion that pain and pleasure are a human’s sovereign masters. He considers this account inaccurate because he believes that it is the human rational capacity that makes people distinctive and special and sets them apart from and above mere animal existence. Human beings are more than just physical creatures with appetites, a claim very closely related to his stringent and demanding, albeit quite convincing, notion of freedom. When humans behave like animals and seek pleasure, or to have their desires satisfied, or to avoid pain,they are not really acting freely but instead as the slaves of those appetites and impulses and according to natural necessity.5
And for Kant freedom represents the absolute opposite of necessity. His conception of freedom entails acting freely, which in turn means acting autonomously and as such, according to a law one gives oneself, above a compulsion to act according to the physical laws of nature or the laws of cause and effect. For Kant, the opposite of autonomy is
4 “Of the two great proponents of utilitarianism […] Bentham the more consistent one.” in Sandel, M. (2009)
Justice: What's The Right Thing To Do?, p. 33
5Sandel, M. (2009) Justice: What's The Right Thing To Do? Lecture 06: "Mind Your Motive", Harvard
9
heteronomy, thus acting heteronomously implies acting in line with an inclination or a desire that one has not chosen for oneself.
Kant’s exceptionally demanding conception of freedom (as autonomy) related strictly to his equally stringent conception of morality. To act freely is not to choose the best means to a given end but to choose the end itself for its own sake. Insofar as human beings act on inclination or pursue pleasure, they act as means to the realisation of ends extrinsic to them. Therefore, they become mere instruments rather than authors of the purposes they pursue. That is the heteronomous determination of the will. But insofar as human beings act autonomously, in alignment with a law they give themselves, they do something for its own sake, as an end in itself. When they act autonomously, they cease to be instruments to purposes extrinsic to them and become ends in themselves.
Thus, according to Kant, this capacity to act freely is what confers special dignity on human life. Respecting human dignity means regarding persons not just as means but also as ends in themselves.For this reason, it is wrong to use people for the sake of other people’s well-being or happiness. For Kant, this is the point where utilitarianism goes wrong. This is the reason it is crucial to respect the dignity of persons and to uphold their rights.To John Stuart Mill6, who
maintained that in the long run, if justice is upheld and the dignity of persons respected, human happiness would be maximised, Kant would reply that even if that were indeed the case and this reasoning was correct, the utilitarian would be upholding justice and rights and respect for persons for the wrong reason, for a purely contingent and instrumental reason. Such a utilitarian attitude would still amount to using people as means rather than respecting them as ends in themselves, even where the calculation produces the best results in the long run.7
Thus far, this is Kant’s idea of freedom as autonomy and it is inextricably connected to his idea of morality. To show this, one other major question needs to be addressed, i.e. what gives
6 “Of the two great proponents of utilitarianism, Mill was the more humane philosopher […].” in Sandel, M.
(2009) Justice: What's The Right Thing To Do?, p. 33
7Sandel, M. (2009) Justice: What's The Right Thing To Do? Lecture 06: "Mind Your Motive", Harvard
10
an act its moral worth in the first place? If it cannot be directed at utility or satisfying wants and desires, what gives an action its moral worth? This can only be answered by examining Kant’s demanding idea of morality.
2. Kant’s Idea of Morality: The Motive That Matters – Doing the Right Thing for the Sake of Duty
Kant holds that what makes an action morally worthy consists not in the consequences or in the results that flow from it but strictly relates to the motive, to the quality of the will, to the intention which gives the act its impetus. What matters is the motive and the motive must be of a certain kind. Hence, the important thing is that the person does the right thing for the right reason.8 Thus, for any action to be morally good, it is not enough that it conforms to the moral law; it must also be done for the sake of the moral law.
Consequently, it is the motive that confers moral worth on an action and the only kind of motive that can confer moral worth on an action is the motive of duty. For Kant, the opposite of doing something out a sense of duty, i.e. because it is right, implies that motives have their origins in human inclinations.9
What matters is the quality of the will, the character of the motive and the relevant motive to morality can only be the motive of duty, not the motive of inclination. When one acts out of duty and resists as a motive for acting inclinations or self-interest, even sympathy and altruism, only then does one act freely, and thus autonomously. Only then is the will beyond the domain of external considerations. This is, consequently, the link between Kant’s idea of freedom and of morality.
8 “The good will is good not through what it effects or accomplishes, not through its efficacy for attaining any
intended end, but only through its willing, i.e., good in itself […] if with its greatest effort nothing of it were accomplished, and only the good will were left over […] then it would shine like a jewel for itself, as something that has its full worth in itself.” Kant, I. and Wood, A. et al. (2002), p. 10
9 Note Kant’s example of the shopkeeper whose action has no moral worth because he only does the right thing
11
Kant acknowledges that there has to be some incentive to obey the moral law but rejects a self-interested incentive, as that would by definition defeat the moral law. Instead he speaks of a different kind of incentive from an inclination, i.e.reverence for the moral law.
In this regard, the present author believes that Kant would agree that it is acceptable to have sentiments and feelings that support doing the right thing provided they do not represent the reason for acting.
The ‘reason’ that leads human beings to the law they give themselves as autonomous beings is the practical reason that all human beings share and not an individualistic, subjective one. The dignity of persons deserves respect due to it being characteristic of all rational beings. All human beings have the capacity of reason and it is the exercise of that capacity for reason which exists undifferentiated in all of us that makes us all worthy of dignity. As such, since it is exactly the same capacity for reason, it has a universal character, is not qualified by particular biographies and specific life circumstances and is therefore capable of delivering the moral law.
As a result, to act autonomously means to act in alignment with a law human beings give themselves in the exercise of their reason, a reason they share with everyone else as rational beings, a pure practical reason which legislates a priori, regardless of any contingent or empirical ends. What then is the moral law that such a reason would deliver?
3. Kant’s Supreme Principle of Morality: The Categorical Imperative
Kantpostulates two different commands of reason or what he refers to as an ‘imperative’ (the
12
One of these two imperatives, perhaps the most familiar one, is a hypothetical imperative. This type of imperative relies on instrumental reason which focuses on the desired ends and the means to achieve them.10
This is the difference between a categorical imperative and a hypothetical one. A categorical imperative commands categorically, i.e. without reference to or dependence on any further purpose.11It follows that the connection between Kant’s three parallel contrasts rest on the idea of freedom as autonomy, i.e.one acts not out of a hypothetical imperative but out of a categorical imperative. Throughthese three contrasts, Kant reasons his way towards extracting the categorical imperative. But what exactly is the categorical imperative as the supreme principle of morality? And what does it require of human beings?
Kant offers three formulations of the categorical imperative12 and the first two are discussed here. Within the context of the first of these formulations, the Formula of Universal Law13, Kant discusses the case of the false promiseand how such an action is wrong and at odds with the categorical imperative. This becomes clear upon attempts to universalise such a maxim, as it leads to contradictory results and causes the maxim to undermine itself.
The present author notes that in this regard Kant should not be understood as appealing to consequences but as saying that by universalising something one can test whether that action is consistent with the categorical imperative and thus conform to the moral law.14
10 “[…] if the action were good merely as a means to something else, then the imperative is hypothetical; if it is
represented as good in itself, hence necessary, as the principle of the will, in a will that in itself accords with reason, then it is categorical.” idem, p. 31
11 “The categorical imperative would be that one which represented an action as objectively necessary for itself,
without any reference to another end.” ibidem
12 According to Kant there is “exactly one categorical imperative” although expressed in equivalent alternative
formulations (Groundwork, p. 119) merely used so as to render the moral law more intuitively accessible.
13 ‘‘Act only in accordance with that maxim through which you can at the same time will that it become a
universal law’’. See ‘Abbreviations’ section in Kant, I. and Wood, A. et al. (2002)
14 “A false promise is not morally wrong because, writ large, it would undermine social trust […]. It is wrong
because, in making it, I privilege my needs and desires […] over everybody else’s. The universalising test points to a powerful moral claim: it’s a way of checking to see if the action I am about to undertake puts my interests and special circumstances ahead of everyone else’s.” in Sandel, M. (2009) Justice: What's The Right Thing To Do?, p. 66
13
Kant’s second formulation of the categorical imperative as The Formula of Humanity as End15 finds foundation in the idea that human beings, as rational beings, are ends in themselves, endowed with dignity and worthy of respect, not open to be used merely as a means.16
In the Kantian world, the moral law has a universal character and ground, according to which the reason that commands respect for the dignity of other people does not hinge on their particular characteristics, i.e.what we like or dislike about them, but on respect for humanity and for rational capacity, both universal in nature. Any failure to award fellow human beings this respect for their dignity amounts to an objectionable violation of the categorical imperative. But how exactly is the categorical imperative, i.e. morality, possible?
In this sense, Kant distinguishes between the sensible world (human beings are objects of experience and subject to the laws of nature) and the intelligible world (human beings are subjects of experience and capable of autonomy, i.e. acting freely). For Kant, contrary to utilitarian assumptions, humanity is not merely empirical and thus conditional upon a certain achievable end.
It follows that categorical imperatives are possible due to this idea of freedom which makes human beings into members of the intelligible world.17
4. A Famous Kantian Case. Lying to a Murderer: A Conceptual Application and Defence of the Categorical Imperative
15 ‘‘Act so that you use humanity, as much in your own person as in the person of every other, always at the
same time as end and never merely as means’’ ibidem
16 ‘That the rational being, as an end in accordance with its nature, hence as an end in itself, must serve for every
maxim as a limiting condition of all merely relative and arbitrary ends on p. 54 in Kant, I. and Wood, A. et al. (2002)
17 “ […] if we think of ourselves as free, then we transport ourselves as members into the world of understanding
and cognize the autonomy of the will, together with its consequence, morality […]” p. 69, Kant, I. and Wood, A. et al. (2002)
14
Kant is notorious for being absolutely adamant about the prohibition against carving out exceptions according to one’s circumstances when being faced with the dilemma of ‘the right thing to do’ in a particular situation.
This is perhaps best reflected in his prohibition against lying, a behaviour which in the
Groundwork serves as the main example of something intolerably immoral. This is most
effectively illustrated by imagining a scenario in which a murderer comes to someone’s door looking for that person’s friend, who is hiding in the house. The thought that it would be perfectly right to lie to the murderer to save the innocent victim falls completely beneath Kantian expectations, as he would categorically object to lying, no matter the peculiarity of the situation. There is a duty to always tell the truth irrespective of the consequences.
As expected, Kant’s hard and uncompromising moral position could not escape critique and Benjamin Constant, a French philosopher living at the same time as Kant, argued that it surely could not be the case the a duty to tell the truth was owed to the murderer, as he was not worthy of the truth, being of a tainted morality himself. In reply, Kant stated that lying to the murderer was wrong not because of any inherent hurt in the action itself but because it was tantamount to a serious transgression against the principle of right: “Truthfulness in statements that cannot be avoided is the formal duty of man to everyone, however great the disadvantage that may arise therefrom for him or for any other.”18
It is important to remember that for Kant morality is independent of consequences and constitutes a matter of principle entirely. Granted, not lying to the murderer could be equivalent to helping him, which is a heavy burden in itself. However, since people cannot control the consequences of their actions anyway, the consequences of telling the truth in this case are equally unpredictable and closely related to contingency. For the sake of example it can be imagined that the friend has already thought of and found a way to flee.
According to Kant and as already explained, the truth should not be told because the murderer deserves it, nor because a lie would hurt him, but because any lie “vitiates the very source of right . . . To be truthful (honest) in all declarations is, therefore, a sacred and unconditionally
18 From the original Immanuel Kant, “On a Supposed Right to Lie Because of Philanthropic Concerns” (1799) as
15
commanding law of reason that admits of no expediency whatsoever.”19 Nonetheless, such a
stance seems unusual and perhaps excessive. For example, there can simply be no moral duty to inform the Nazi police that Anne Frank and her family are hiding in a garret. It was precisely this outrageously strait-laced attitude and his unbending insistence on telling the truth to the murderer, instead of lying to protect the friend, that made Kant into philosophy’s hell raiser and attracted a mountain of criticism prompted by the conviction that the categorical imperative was either incorrectly applied or utterly absurd and infeasible.
As unconvincing as Kant’s demand for the truth seems, it is possible to defend it at least to some extent. This is a defence different from Kant’s but still within the boundaries of the spirit of his philosophy, that can help elucidate the intricate nuances of his supreme principle of morality and some alternative ways in which it can be applied without it losing its essence.20
Again, going back to the example of the murderer at the door, the reader is invited to imagine a situation in which a person is hiding a good friend in their home from the evil pursuer. Faced with such a quandary, it can of course be assumed that the person would not want to do anything that helps the murderer in his wicked endeavour nor say anything that might reveal the friend’s whereabouts. And here the uncomfortable question arises of what choices are available to that person. They could just lie unreservedly by denying that their friend is there or they could choose to tell the truth, albeit in a misleading manner by telling an unconnected story, e.g.saying how they saw the friend earlier in a different place.
From a Kantian standpoint, opting for the second choice would count as a perfectly morally allowable and acceptable strategy. However, choosing to tell an outright lie, even with the best intentions, would not pass the Kantian test. To the reader this might seem like a petty alternative by moral standards. Can there really be a genuine moral distinction between telling the truth in a deceptive way and a total lie? After all, in both situations the aim that one is trying to achieve is to convince the murderer that the friend is definitely not hiding there.
19ibidem
20 This defence follows along the lines, together with examples, presented by Professor M. Sandel in his course
(2009) Justice: What's The Right Thing to Do? Lecture 06: "Mind Your Motive" and Lecture 07: "A Lesson in Lying", Harvard University from Harvard University; also in Sandel, M. (2009) Justice: What's The Right Thing To Do?, pp. 71-72
16
Nevertheless, how one chooses to handle the situation makes a world of difference for Kant and he considers there is an authentic difference between the two options. This author believes that what is most important for him is the fact that even if an outright lie would manage to protect the friend and ultimately play the main part in saving their life, that would be a life that in Kantian terms would be deprived of any moral worth, in that it was saved in defiance of the moral law.
Another practical analogy can perhaps help in clarifying this point even more, i.e. the case of white lies, those small, apparently insignificant untruths people resort to in their daily lives out of politeness or when trying to not hurt someone’s feelings, e.g. when someone receives a present they absolutely do not like. By showing delight and appreciating the gift as beautiful, the person would be telling a white lie. Conversely, by saying that they have never seen a gift like this before or assuring the gifter that they really should not have bought a gift, the person would be telling the truth, regardless of the false impression that might be conveyed.
The reason Kant would not approve of telling a white lie relates to how an apparently harmless untruth draws its impetus from consequences and as such creates an exception to the moral. However admirable an intention, an end, it must be sought in a manner that remains true to the categorical imperative, according to which people should be able to universalise the principle behind their actions.
If exceptions would be permissible whenever the ends pursued are powerful enough, that would be the trigger that would incrementally and fundamentally cause the disintegration of the universal character of the moral law and justice. By contrast, a misleading truth does not represent an equally menacing liability to the categorical imperative.
In applying this analysis to the conduct of an agent provocateur and the practice of entrapment in the later part of this thesis, this author will attempt to establish whether it is the case that agent provocateurs are absolute villains and their targets always nothing but victims. The goal will be to evaluate how objectionable the practice of entrapment is if assessed through the Kantian lens of the categorical imperative.
17
The case study differentiating lies from misleading truths will be applied to entrapment in assessing the moral permissibility of such a practice and under what circumstances and assessing whether entrapment is more like a lie or, through its nature as a deceptive practice, more like a permissible misleading truth capable of passing the test of the categorical imperative.21
From the perspective of an agent provocateur, the focus lies on whether resort to an unusual stratagem like entrapment always counts as an unfair and unacceptable legal tool. Can such a practice be universalised and thus justified or does it always and without exception use humanity merely as a means to an end?It might actually be possible to use the categorical imperative as guidance to determine whether the standards for agent provocateur conduct are sufficiently fair and decent as they are or merit further attention and judicial review.
From the perspective of an offender, can it be implied that if a person can be induced to commit a crime in blatant disregard of the criminal law, that the same person automatically shows a propensity towards breaking the moral law? If that is the case, why should they be allowed any excuses in law, especially by shifting attention from their own wrongdoing to someone else’s? Surely what is undoubtedly immoral is not always also unlawful but a crime has been elevated to that status and is liable of punishment under the criminal law precisely because of its unforgiving immorality.22
So can anyone who does not strive to act morally be taken to be law-abiding, albeit easily susceptible to inducement to commit crimes? Does justice belong exclusively to one party or the other in an entrapment scenario or does it lie somewhere in-between?
21This author predicts the reader’s likely confusion with regard to this very specific defence of Kant’s categorical
imperative and acknowledges that it may give the impression of being nothing more than just an essentially unpersuasive exercise in sophistry. However, the author is adamant that this nuanced defence and its insistence on the motivation for an action, rather than the intended purpose comes closest to a correct understanding of Kant and accurately captures the ethical conundrums surrounding entrapment and how these can be resolved.
22 This view is in line with “Kant's theory of Right (Law) not only establishes the framework of […] public law,
but it also justifies the use of coercion to secure that framework – in particular against those who offend against the Right by committing crimes […]” in Fletcher, G. (1987) Law and Morality: A Kantian Perspective, p. 536 and “punishment is the only legal institution that Kant treats as a duty of justice as well as a vindication of the Right.” idem, p. 550
18
An attempt to conduct such an analysis later requires that it is explained now how justice, law and morality relate to each other from a Kantian perspective according to this author’s opinion.
5. The Relationship between Law and Morality and Justice: The Categorical Imperative as Linchpin
This section demonstrates the possibility of a Kantian view capable of accommodating a conceptual connection between law and morality and how this connection translates into justice in more pragmatic terms.23
The moral does not have to demand formal inclusion in the legal in order to shape and guide it. Further, as will be observed from the entrapment jurisprudence in the latter part of this paper, the legal very naturally takes the moral into consideration and is influenced by it. Moral considerations are more prevalent in the law than would probably be expected, whether by way of conscious thought or rather instinctually, and the law seems content to take on the responsibility of operating as an instrumentality of morality24.
This thesis is not an argument in favour of legislating morality but in favour of a more conscious exercise in using a moral system of universal characteristics that canensure consistency in the law without exception and thus guarantee the unwritten promise of integrity and justice intrinsic to the administration of justice.25
23 Contrary to the interpretation that “the Kantian view treats the two as distinct and nonintersecting. The moral
does not petition for inclusion in the legal and the legal cannot determine the moral.” in Fletcher, G. (1987) Law and Morality: A Kantian Perspective, p. 534
24 “Despite the deep divisions between Kant's moral and legal thought, one regularly encounters the tendency to
treat the Right as an application and extension of moral concepts.” and the correlative idea that this is not the correct interpretation of Kant “the interpreters of Kant hold steadfastly to the misunderstanding that there is a moral foundation for the Right." in the original Gerhardt, Recht und Herrschaft. Zur gesellschaftlichen Funktiondes Rechts in der Philosophie Kants, 12 Rechtstheorie 53, 73 (1981) as cited in n 87 in Fletcher, G. (1987), p. 553. This author contradicts the latter argument and shows how the “misunderstanding” is realisable.
25 A further example of the connection between law, morality and justice: “What are principles of legality
19
Accordingly, in this author’s interpretation, the Kantian manner in which justice can be achieved through the categorical imperative consists in endowing the law with a moral dimension. This would be done by performing the following balancing act: the categorical imperative, which embodies the supreme moral law, accomplishes the demands of the law when it is used as a tool for universalisation, and the demands of justice equally when it enforces the obligation to treat others as ends in themselves and respect their humanity.26 This application is later used to examine the law on entrapment and offer some guidelines as to how this balancing act can be successfully achieved on a universal level if any outstanding deficiencies are identified.
VI. Entrapment and the Law: What Is Wrong With It?
In the minority opinion in Sherman v US27,Justice Frankfurter stated that: ‘No matter what the
defendant's past record and present inclinationsto criminality, or the depths to which he has sunk in the estimation of society, certain police activity toensnare him into future crime is not to be tolerated by an advanced society’.
Entrapment is generally known as the practice whereby an official of the government facilitates or incites the commission of a crime which a defendant would otherwise not commit.28Put simply, the State engineers a crime and later tries to prosecute and punish
individuals for it, thus endangering the reputation of the criminal justice system, as well as the esteem of the public for the manner in which justice is administered.
token also moral requirement? Isn’t justice part of morality? And if they are also the same requirements ‘which lawyers term principles of legality’ are they not in turn necessarily (because conceptually) connected to law? If these questions are as rhetorical as they seem, there is the following chain of necessary (because conceptual) connection between law and morality: law <-> the ideal of legality or the rule of law <-> justice <-> morality” in Gardner, J. (2010) Hart on Legality, Justice, and Morality, p. 4
26 This application appears to also find tentative support in Fletcher, G. (1987), p. 553
27(1958) 356 US 369 in Doherty, M. (1998) Judicial Discretion: Victimising the Villains?, p. 56
28 “an accused has been deliberately procured, incited or tricked [by an official of the government] into the
commission of a crime which he would not otherwise have committed.” originally in R v Sang [1980] AC 402, 446 per Lord Fraser as cited in Choo, A. (1990) A Defence of Entrapment, p. 453
20
Some more enlightening definitions of entrapment have been provided in the English House of Lords decision of Looseley29. Accordingly, the Lords make clear that the state entices its citizens through its agents into the commission of unlawful acts and then proceeds to prosecute them on that basisand that such a practice amounts to entrapmentand additionally that the conduct of the agent is the catalyst which causes the commission of the crime by the defendant and the latter is not merely presented with an opportunity to do so. It is further clarified thatthe entrapper is usually an agent of the State, whether a law enforcement officer or an informer acting under instruction, and that there is no entrapment when the police simply present a potential offender with an unexceptional opportunity for the commission of a crime but do not effectively pressure him into doing so.30
There has been little enthusiasm in the lawfor elevating entrapment to the level of a defence to criminal liability.31 As an example, the landmark English decision in Sang32stands testimony in this regard. The same rejection of entrapment as a substantive defence finds support in several other common law jurisdictions such as Canada33, Australia34 and Singapore35.
29 [2001] 4 All E.R. 897 in Hofmeyr, K. (2006) The Problem of Private Entrapment, p. 323 30ibidem
31 Note the exception of the United States, where there is a long recognised, albeit unsatisfactory, defence of
entrapment “America--home of the entrapment defence, and constitutional garden of the tree which brought forth the poisoned fruit--now lags in the protection of citizens against improper State conduct. Its entrapment defence is in fact much narrower than is commonly realised, largely because it pivots upon the accused having no disposition to commit the crime which has been induced.” in Robertson, G. (1994) Entrapment evidence: Manna from Heaven, or Fruit of the Poisoned Tree?, p. 814; also note “The Supreme Court and the Model Penal Code in the United States provide for a defence of entrapment, but that is less appropriate than a stay since, unless it were to lead the prosecutor to discontinue the case, it would only come into play if a trial were to take place.” in Ashworth, A. (2002) Re-drawing the Boundaries of Entrapment, p. 164
32 R v Sang [1980] A.C. 402 in Ashworth, A. (2002) Re-drawing the Boundaries of Entrapment, p. 177 33 R. v Mack [1988] 2 S.C.R. 903
34 Ridgeway v The Queen (1995) 184 C.L.R. 19
35 Note decision PP v Rozman bin Jusoh [1995] 3 SLR317 which has reaffirmed that the defence of entrapment
is not available in Singapore. The Court in that case stated: "If entrapment can be considered at all, it is relevantonly insofar as mitigation of the sentence is concerned." in Low, G. (1996) Entrapment and the Singapore Criminal Law, p. 186
21
The reasoning for this approach is strictly related to the issue of culpability (of the defedant only) and is best highlighted in Lord Scarman’s speech in the Sang decision36. He emphasises that while an agent provocateur may indeed have a contribution in bringing about a crime, the issue relating to the actual commission of the crime and the innocence or guilt of defendant is a separate matter and has to be judged independently.
In this regard, the present authorworryiedly observes the scarce to almost inexistent discussion of the criminalliability of the entrapper or agent provocateur. The relevance of such a discussion concerns not only situations of private investigators or journalists who engage in testing people, but most importantly situations in whichlaw enforcement officials are actively engaging in entrapment activities during which there is a high possibility that they will themselves be committing offences.
However, the majority in the Australian decision of Ridgeway v The Queen37also emphasised that it was one of the main foundations of the criminal law that if a person engaged voluntarily in the commission of all of the objective elements of a crime, they were guilty independently of whether they had been induced into commission by someone else, whether that person was a private citizen or a law enforcement officer.
1. Entrapment in Practice: Does Any Kind of (Official) Conduct Constitute Entrapment?
Sting Operations, Manna from Heaven Operations, and the Objectively Unacceptable Conduct Criterion
36 “If a crime is brought about by the activities of someone who can be described as an agent provocateur,
although that may be an important matter in regard to sentence, it does not affect the question of guilty or not guilty … Incitement is no defence in law for the person incited to crime, even though the inciter is himself guilty of crime and may be far the more culpable. It would confuse the law and create unjust distinctions if incitement by a policeman or an official exculpated him whom they incited to commit a crime whereas incitement by others- perhaps exercising much greater influence--did not.” in R v Sang [1980] A.C. 402 at 451
22
Objectively Unacceptable Conduct
This section of the thesis investigates whether any official conduct amounts to entrapment as long as it provokes a member of the public to commit an offence, taking into consideration that the person does not generally have any pre-existing intent to commit offences of the type when presented with an opportunity.
To better illustrate this conundrum, a pertinent hypothetical example38 is explored, according to which after several indecent assaults have taken place in a park at night, the police decide to resort to pro-active law enforcement techniques with a view to catching the offender(s), by means of what is essentially a trap.
A female police agent sits alone and provocatively on a bench in the park and a passer-bysees the woman and without any pre-existing general intent makes up his mind to assault her, and is consequently immediately arrested. The important question arises, whether in such a scenario the offender should have the benefit of a defence to a charge of assault.
The threshold of entrapment in such a scenario would thus appear to be met. A person, lacking a pre-existing general intent to commit offences of the type whenever the occasion therefor arose, was induced through agent provocateur conduct to commit the offence with which he subsequently charged.
Nevertheless, in such a particular instance it is not easily evident why the defendant should be allowed to invoke a defence to justify his actions. This is an obvious example of a situation in which society has the reasonable expectation that people should be able to control themselves, with all their urges and desires.
This author is convinced that even Kant would agree that whatever consequences are now upon him, the defendant is fully responsible for them, for having failed to appeal to his pure reason and act autnonomously, instead succumbing to his inclinations and acting heteronomously, in defiance of the requirements of duty and the right thing to do. He has himself made a mockery of his inherent dignity as a human by choosing to act like any other less evolved animal.
23
As a result, the police can be said to have discharged their duties in a reasonable and potentially even commendable manner. Their actions haveled to crime creation but only due to the defendant’s personal tendencies and inabilty to resist temptation. Granting him the availability of a defence would seriously weaken the role of the police in law enforcement. Thus, it appears to emerge that the impugned conduct must reach a certain threshold so that it can be shown to be objectively unacceptable before it can be deemed to amount to entrapment.
This aspect should be evaluated separately from the issue of predisposition. Hence, what needs to be established is generally whether the impugned conduct, and in the example above, the conduct of the female decoy, in her official capacity as a police agent, was objectively reasonable in relation to the crime under investigation.
The mode of action of the police in the example provided can be deemed to have been reasonable and thus acceptable.39 In the opinion of this author, such an evaluation is warranted due to the fact that the official conduct was passive in nature, rather than active and clearly enticing.
Sting Operations
This type of operations fall into the same category as decoys and do not appear to be inappropriate in law, provided they are conducted with authorisation and and properly executed. As in the previous hypothetical example, as long as the undercover officers act as any ordinary person would in the same situation and do not especially and purposely fabricate any temptation to members of the public, there is, for example, generally no objection to a female police agent dressing up as an elderly lady and playing decoy in an area where elderly people are the victims of mugging.
24
The main issue in such a context, as in the hiring of contract killers in Smurthwaite and Gill40,
hingers on whether the officers and their behavour crossed the limits of normalcy or not. In particular, since it is not a usual situation that ordinary people are solicited to murder someone’s spouse, what matters is that there was no deliberate inducement or active encouragement or persuasion, but only a minimum involvement in the form of playing along, to the degree necessary to protect the officer's cover in his attempt to gather evidence.
Manna from HeavenOperations
These operations differ quite significantly from sting operations. In the course of a crime initiative operation, the police parked an unlocked van that contained easily removable cartons of cigarettes in a high street. After walking around, two men eventually gave in to the temptation and removed a carton41.
Their convictions were later upheld, as it was the Court’s view that the defendants had in fact incriminated themselves by their own dishonesty and not through any trick by the police posing as agent provocateurs. A defence of entrapment was denied because the police had done nothing to force, persuade, encourage or coerce the crime and had, therefore, not acted as agent provocateurs. The defendants had voluntarily taken possession of the goods in the absence of any pressure from the police and with the full understanding of their own dishonesty.
This case appeared to emphasise a particular and exact distinction between incitement to crime that came directly and unambiguously from an agent provocateur and temptation, which, albeit hard to resist, was nothing but the result of a well thought out trap with its own lure.
This decision was approved in Looseley with the justification that there was “an authorised investigation into actual crime, and the fact that the defendantsmay not have previously been
40 [1994] 98 Cr.App.R. 437 cited in Ashworth, A. (2002) Re-drawing the Boundaries of Entrapment, p. 174 41 DPP v. Williams and O’Hare (1994) 98 Cr.App.R. 206 cited in Ashworth, A. (2002) Re-drawing the
Boundaries of Entrapment, p. 175 and Robertson, G. (1994) Entrapment evidence: Manna from Heaven, or Fruit of the Poisoned Tree?, p. 811
25
suspected or even thought of offending was their bad luck.”42 However, on the basis of an
earlier example in which a law enforcement officer conspicuously placed a wallet in a readily accessible location waiting to see who would grab it, Lord Hoffmann concluded that such an action would be a clear case of entrapment “because the policeman is preying on theweakness of human nature to create crime for an improper purpose.”43
It thus becomes apparent that a crucial aspect turns on whether the police are organising a properly authorised operation, that is additionally warranted by a proper motive, such as a report of similar crimes in a particular location.
An important distinction seems to be made between the police officer planting the wallet, whose motivation consisted in a purely self-interested reason, i.e. gaining the admiration of his superiors and the operation of the police in the previously discussed case of Williams and
O'Hare, which took place in the context of an authorised crime iniative scheme due to the
occurrence of similar crimes in the area.
Moreover, what appears to make the wallet example even more reprehensible, relates strictly to its nature as an exercise in virtue-testing on the part of the police through their laying out of an ultimately unnecessary temptation which would be difficult to resist even to the most law-abiding citizens.
Ashworth is of the opinion44 that such a situation is different from one in which decoys are used, or a jewellery shop is set up with the purpose of catching some fraudulent customers amongst the honest ones, or even a scenario in which a handbag is left next to a restaurant seat to see whether it catches the attention of a thief. Neither leaving unguarded cigarette cartons in a public location nor placing a wallet on a bench in some park qualifies as acceptable behaviour to him, as they carry an unsually high risk of extraordinary temptation.
42[2001] UKHL 53, para. 65, per Lord Hoffmann in Ashworth, A. (2002), p. 175 43[2001] UKHL 53, para. 59 ibidem
26
Such cases are obvious examples of crime creation by the police and citizens should not be exposed to calculated temptations like these, as they go beyond the standard of unexceptional opportunities.
2.More Entrapment Jurisprudence
This section investigates further jurisprudential examples on entrapment to deduce thegeneral attitude of the judiciary in these cases, as well as a possible pattern of judicial response, in addition to what has been presented so far, so that a more elaborate Kantian assessment can be applied to these examples in the next section. The purpose of the assessment that will follow is to elicit a response from morality and see to what extent the judiciary is already gearing the law towards the achievement of justice in entrapment situations.
The ECtHR case Teixeira de Castro v Portugal45, was a significant entrapment decision from the human rights realm, which prompted a positive shift in domestic judicial attitudes to entrapment. Its main distinctive feature was that it went beyond fair trial considerations and focussed attention on police conduct. This case was objectionable because the defendant was sentenced to six years, even though he lacked a criminal record and the undercover police operation was unauthorised. Additionally, the drug offence was actively instigated by the police, beyond the limits of a mere passive investigation techique, and without prior suspicion against the defendant.46
In Nottingham City Council v Amin47the defendant, a taxi-driver, was driving in an area not
covered by his licence, which is an offence under English law. He picked up two men, who later turned out to be plain-clothed police officers and was later prosecuted. The police
45 (1999) 28 E.H.R.R. 101
46 The Canadian courts take a similar approach “entrapment arises in two situations. The first is where there is no
reasonable suspicion that the suspect is actually committing offences of the kind being investigated, or where the investigators act in "bad faith". The second is where, despite both reasonable suspicion and a bona fide investigation, the conduct of the investigators goes beyond providing an opportunity to commit the offence and actually induces its commission.” in Murphy, B. and Anderson, J. (2014) After the Serpent Beguiled Me: Entrapment and Sentencing in Australia and Canada, p. 627
27
officers, however never acted as agent provocateurs, i.e. they did not attempt to pressure or persuade him in any way. This was another important case which captured the distinction between acceptable and unacceptable police conduct. Further, the duty to the public to enforce the law was emphasised, thus making it acceptable for the police to present the defendant with an opportunity to break the law, particularly where the opportunity was taken voluntarily and in circumstances indicative of a similar behaviour independent of the identity of the person offering that opportunity.
Looseley48, mentioned earlier, albeit not elaborated upon, is an example of a particularly objectionable case of entrapment through police badgering, as the defendant was induced on no less than 15 occassions to supply heroin.49 A stay of proceedings for abuse of process was ordered and the defendant was acquitted, notwithstanding that he had a record for dealing cannabis). This House of Lords decision is now viewed as a landmark declaration in English law with regard to entrapment due to it finally moving attention in the right direction, i.e. away from trial concerns and onto police conduct, thus achieving a stronger and more structured due process approach. It was thus established that in all similar cases, where the police engage in seriously improper behaviour and present the defendant with more than just an ordinary opportunity for crime commission, thereby dragging the reputation of criminal justice system through the mud, a grant of a stay would be awarded50 and all evidence would
be excluded by the discretion of the court.
48 [2001] UKHL 53
49 A similar case is Jacobson v. United States (1992) 503 U.S. 540, where the defendant gave in on the eleventh
police attempt, and the conviction was, in this author’s opinion, rightly overturned.
50 In relation to this, the present author would like to note the consequentialist motivation of the court, which
would not be sufficiently satisfactory by Kantian standards, as the right thing was done for the wrong reason: “A stay is appropriate not because the defendant could not receive a fair trial or because it was necessary to discipline the police but because the continuation of the prosecution would be an affront to the public conscience.” in Hyland, K. and Walker, C. (2014) Undercover Policing and Underwhelming Laws, p. 558. A similar approach can be observed in the Canadian courts: "[the question is not whether the accused is guilty, but whether his [or her] guilt was uncovered in a manner that shocks the conscience and offends the principle of decency and fair play" in R v Pearson [1998] 3 SCR 620 at 625-26. What would have potentially made these approaches genuine Kantian responses, would have been the rejection of such an aggressive police conduct because of the non-universalisable character and due regard for the individual humanity of the defendant, rather than the collective humanity of the public.
28
The following two more recent decisions from the English Court of Appeal constitute great examples in evidencining and summarising the judicial attitude and responses to entrapment, at least as regards English law.
In R v M51 the defendant was charged with and tried for supplying a class A controlled drug, diamorphine. He challenged the prosecution and applied for a stay of the proceedings as an abuse of process on the ground of entrapment, claiming that he had been induced by an undercover police officer in the course of an authorised operation to commit the offence. The court dealt with the distinction between legitimate police conduct and improper entrapment and established that while it may be difficult to draw a line between the two52, generally conduct that would qualify as entrapment would need to have pressured or persuaded the defendant into the commission of the crime. Provision of a mere opportunity to commit the crime was not sufficient to establish entrapment. Moreover, the Court ofAppeal also noted, in line with Loosely, that the overall consideration is always whether the conduct of the policewas so deeply inappropriate as to cause a serious disfavour to the administration of justice.53
The defendant also argued that the incitement of the undercover officer was even harder to resist because the officer had ingratiated himself with him, making him believe they were friends and on top of that he was made to believe that he was helping a fellow addict and so did not agree to supply the drug for money only.
51 [2011] EWCA Crim 648
52 The Court confirmed that position from R v Loosely [2001] UKHL 53 at 4 that: “there are occasions when it is
necessary for the police to resort to investigatory techniques in which the police themselves are the reporters and the witnesses of the commission of a crime. Sometimes the particular technique is acceptable. Sometimes it is not. For even when the use of these investigatory techniques is justified there are limits to what is acceptable.”
53 “The greater the inducement held out by the police, and the more forceful or persistent the police overtures,
the more readily may a court conclude that the police overstepped the boundary: their conduct might well have brought about commission of a crime by a person who would normally avoid crime of that kind.” in R v Loosely [2001] UKHL 53 at 28
29
However, the court noted that it was characteristic of undercover police operations that the undercover officer would attempt to win the confidence of a person partaking in criminal conduct by establishing themselves in that person’s good graces.54
In R v Palmer55the police launched an authorised undercover operation in the course of which they set up a sting shop in response to an increase in domestic burglaries. The undercover officers were fully trained and specifically instructed not to act as provocateurs and so the Court of Appeal dismissed Palmer’s claim officers’ conduct constituted enticement or entrapment. The defendant was not in any way coerced into committing any crime he would not have committed anyway. Therefore, the opportunity presented to him was completely unexceptional, mainly considering that access into the shop was open to the public and no one forced him to go in. The court further justified the legitimacy of the operation and the shop with regard to the goal of crime prevention and detection, especially since conventional policing tactics had proven unsuccessful.
VII. What Would Kant Say, Whom Would He Defend?
Victims and Villains, Offenders and Law Enforcers: Applying the Kantian Morality to Entrapment
54 With regard to this aspect, the present author observes as particularly disappointing the narrow, if not almost
inexistent, extent of the discussion concerning the limits of this acceptable practice of undercover police officers ingratiating themselves with individuals involved in criminal activity, seeing that the said officer might sometimes be in a position to have to commit extremely serious crimes so as not to blow the cover of the operation (e.g. murdering someone to maintain appearances). While in the course of this research such an entrapment scenario was not identified, a correct position in Kantian terms will be anticipated in the final section of this paper, taking into account how police officers are immune from prosecution due to the authority conferred upon them by the state.
