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Resuscitating the Entrapment Defense: A Statutory Approach

By Gage Hodgen

The entrapment defense has existed in American criminal law since the early twentieth century and remains relevant today. As the evolution of technology has enhanced the ability of the police to monitor and engage with potential criminals, sting operations by police have become increasingly commonplace in the investigation (or manufacture) of terrorism, drug, and sex crimes. Consequently, targets of sting operations are often placed in situations in which there is a risk of improper government inducement to commit criminal acts. Despite the increased complexity and frequency of sting operations, however, claims of entrapment by defendants based on the traditional theoretical formulations of the defense are nearly always unsuccessful when raised, and, in many appropriate cases, defendants do not raise entrapment claims at all.

This Note proposes a statutory resuscitation of the entrapment defense to make the defense more suitable to the modern policing system. Part I examines the traditional variants of the entrapment defense as it developed in the common law of the United States as either a subjective test of the predisposition of the defendant or an objective test of the government’s conduct. Part II interrogates the stated purposes of the subjective and objective approaches. Part III explores why the entrapment defense so often fails in situations in which factors suggesting entrapment are present and demonstrates that the entrapment defense today does not serve its foundational purposes. Part IV argues that the underlying rationales of both formulations of the entrapment defense militate in favor of reformulating the defense as a set of statutory rights against certain police behaviors.

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