Consent, Entrapment, and High-profile Cherry-picking

I. Should consent be a defense to more serious crimes? Why or why not?

II. Do you think the objective or subjective approach to entrapment better balances the various policy considerations? Why?

III. In light of recent high-profile police shootings, should any modifications be made to the authority defense to further define or alter the limits on excessive force? (Note: this can be a highly charged topic on either side of the discussion; as always, please be sure to maintain a respectful and professional tone.)

I. Consent should not be a defense to more serious crimes that involve an actual victim, because helping someone to normalize behavior deemed criminal is both a danger to the public and not any part of recognized rights. However, for victimless crimes—however “serious”—consent should be a defense. An example would be the age of consent to marriage in the U.S. Virgin Islands, where a woman can consent to marry at fourteen years of age, but a man must wait until sixteen. There, the consent of a fourteen-year-old man to marry should serve as a defense to those same crimes for which the consent by a fourteen-year-old woman would serve as a defense in the jurisdiction.

II. Neither approach to entrapment balances the various policy considerations, because they cannot—because the policy considerations are inherently twisted and imbalanced. The only moral perspective towards entrapment is zero-tolerance, if for no other reason than that no one is “predisposed to crime,” in any ultimate sense—and so none should be tempted towards crime for the supposed “greater good.” After all, entrapment is a massive perversion and inversion of justice, where corrupt narcissists who manage to slither into government justify themselves by at least aiding and abetting criminality—if not outright creating criminality. Or, as the Supreme Court of Florida once put it:

Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. . . . [t]hus, the only appropriate remedy to deter this outrageous law enforcement conduct is to bar the defendant’s prosecution.

State v. Williams 623 So. 2d 462 (Fla., 1993) (upholding the trial court’s decision that it is a bad idea to let Florida cops turn their station into a crack-lab in order to cook cocaine they had found into crack, with an aim of making it more useful for entrapping the defendant into charges of trying to buy crack (while also luring the defendant close to a school, in order to enhance the crime)).

If there is not sufficient crime, or if not enough crime is sufficiently imminent, such that government believes it must “grease the wheels” of criminality: that is a good thing. And monitoring for crime is a good thing. But these “4-D chess” concoctions are getting ridiculous. An example would be where government criminalizes the possession of certain plants (none of which, by the way, am I even remotely a fan of), but then government cannot be bothered with the weird and difficult police-work of only policing those whom the police have reasonable suspicion or probably cause of possessing those plants—so they create a maze of “informants” and “middlemen” and other bait, in order to strive for the supposed utopia where no one possesses the plants that government has declared to be legally immoral. Entrapment is a symptom of the disease of government overreach. Both approaches to entrapment, to borrow from Thoreau, only hack at the branches while failing to strike the root, which is that no one whom society entrusts to police society should have the time or inclination to even think about entrapping citizens.

III. High-profile Cherry-picking

Recent high-profile police shootings do not warrant modifications to the authority defense, because the politicized pet-projects of disingenuous journalists and their editors should affect public policy as little as possible. Otherwise, they could dictate much about policy (as they do) by simply cherry-picking (as they do) their own personal crusades from among the hundreds of millions in our nation—a sample size that allows for exaggerating (or downplaying) whatever they prefer. After all, on a whim, if media chose not to highlight “high-profile” police shootings—they could instead, for example, peddle doomsday scenarios based on the statistical fact that every day in the USA: a man dies—of breast cancer. See Susan G. Komen, Breast Cancer In Men (2020), available at https://ww5.komen.org/BreastCancer/BreastCancerinMen.html.

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