91 Pages Posted: 3 Apr 2007 Last revised: 9 Mar 2008
The thesis of this article is that the unique nature of terrorist crime requires a tweaking of the entrapment rules. The entrapment defense is our legal system's primary mechanism for regulating government sting operations. I argue that sting operations and surveillance are conceptually distinct (or rival) methods of law enforcement, which compete for resource allocation. If an enforcement agency favors one method, it shifts resources away from the other. To the extent that we dislike panoptic government surveillance, we can steer enforcement agencies away from it by encouraging targeted stings; and we can achieve this, in part, by adapting the rules for the entrapment defense as applied to terrorism prosecutions. Due to the unique nature of terror-related crimes, combating them with surveillance necessitates non-specific, panoptic surveillance, something much more invasive than was necessary with traditional victimless crimes like trafficking in drugs or sex, etc. This changed circumstance results from the greater emphasis on prevention, as opposed to punishment, and the nature of the organizations involved. In order to be effective against terrorism, surveillance would have to be so intrusive, expansive, and expensive that it warrants a consideration of alternative methods in this context. Adapting the legal rules surrounding entrapment would facilitate a beneficial and efficient shift in methodologies.
Keywords: entrapment, terrorism, antiterrorism, undercover, sting, criminal, material support, deterrence, incapacitation
JEL Classification: H56, K14, K42
Suggested Citation: Suggested Citation
Stevenson, Drury D., Entrapment and Terrorism. Boston College Law Review, Vol. 49, p. 125, 2008. Available at SSRN: https://ssrn.com/abstract=976830