Monday, December 20, 2004
"This Article attempts to advance a new and superior interpretation [of the entrapment defense] by focusing on the relevancy of the entrapper's governmental status. In this manner, the puzzle of entrapment can be neatly unraveled. First, the article presents the basic contours of the doctrine. Second, it reviews a variety of theories of entrapment and exposes their shortcomings as explanations for why the entrapped should be exonerated. Third, the Article introduces and defends a new theory of entrapment-- entrapment as unfairness. According to this theory, entrapment is neither an excuse, a justification, nor a public policy defense, as those categories have traditionally been understood. Rather, entrapment is fatally unfair to its target in the following sense: For society to impose criminal sanctions on an entrapped person would be to place on her a disproportionate share of the cost of general crime prevention and control, violating the well-established norm of distributive justice that, to the extent possible, the cost of an activity should be shared among all its beneficiaries. After elaborating this thesis, the Article considers and responds to a number of potential objections to entrapment as unfairness. Finally, the Article applies the theory to a number of current controversies concerning entrapment."
To read the article, click here. [Mark Godsey]