Document Type

Working Paper

Publication Date

1-8-2005

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

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 punishedThe 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 doctrines 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

Download

Share

COinS