50 Pages Posted: 8 Jan 2005
Recent news accounts of the arrests of Ryan Anderson, the National Guardsman accused of being an Al Qaeda informant, and Hemant Lakhani, allegedly involved in a second dirty bomb plot, show that law enforcement continues to use sting and decoy operations despite the risk of running afoul of the entrapment doctrine.
Rather than advancing one model of entrapment, this article focuses on the failings of the doctrine generally. It argues that no matter which paradigm of entrapment a jurisdiction employs, the defense still fails to serve adequately as a prophylactic device for two main reasons. First, entrapment is not an effective disincentive to law enforcement agents; they can achieve their goals without convictions or even arrests. Second, even when the defense succeeds, it allows an accused to be arrested, incarcerated, and possibly convicted, subjected to public opprobrium and punished.
The only consensus possible on entrapment doctrine is that we are better off with it than without it. That said, many jurisdictions have vacillated over which form to use. The resultant instability has undermined the efficacy of the doctrine. This article proposes that entrapment can be stabilized, either by being fixed in statutory form or by being grounded in constitutional law.
This article discusses the history of entrapment and various rationales advanced on the doctrine's behalf. It identifies reasons why law enforcement continues to use entrapment techniques and why defendants and attorneys may be reluctant to raise the defense at all. The article concludes with a discussion of the various areas in which the entrapment defense is wanting in the hope that the doctrine can be modified to meet those needs, or that a new doctrine can be developed.
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