The Due Process Defense in Entrapment Cases: The Journey Back

Abstract

Many defendants raising the entrapment defense concurrently raise a due process claim, which contends the government has acted so outrageously that prosecution would be unconstitutional. The entrapment defense and the due process claim, however, are distinctly and significantly different. Entrapment focuses on whether the defendant was predisposed to commit the crime, while the due process claim looks to whether the government has overstepped. Doubts have been raised as to whether the due process claim should exist at all, most notably, for example, by Chief Justice Rehnquist and the Seventh Circuit’s Judge Easterbrook. However, this Article contends that due process plays an important role of creating outer limits on appropriate law enforcement techniques and demonstrating to the public that courts are willing to draw some lines that cannot be crossed even in pursuit of criminals. Recent use of the due process clause in this context signals that the defense is alive and beginning to be considered seriously. This development should be applauded and encouraged to grow.

Keywords: entrapment, defense, due process, criminals, defendant, government