Monday, January 6, 2014
Francesca Laguardia has posted Terrorists, Informants, and Buffoons: The Case for Downward Departure as a Response to Entrapment (Lewis & Clark Law Review, Vol. 17, No. 1, 2013) on SSRN. Here is the abstract:
The question of entrapment has received renewed attention as law enforcement stings have become more and more common in terrorism investigations. While even the judges on certain cases have become convinced that defendants were entrapped, the defense remains a universal failure. This Article suggests that the concept of entrapment remains valuable in the context of terrorism prosecutions, but that juries may not be relied upon to acquit entrapped defendants. A better solution would be extreme sentencing departures on the part of judges, which would protect the purposes of the entrapment doctrine while increasing the likelihood of its success. This Article first looks to the law and purposes of entrapment generally, then addresses the specific contours of entrapment in the context of terrorism investigations. Operational capacity of defendants is identified as a particularly telling aspect of the balancing of purposes in the entrapment doctrine. While this Article shows that operational capacity is already influencing sentencing, true protection of the interests at stake in the entrapment doctrine would be better protected by more severe downward departures, even below statutory minimum sentences.