§ 27.04 ENTRAPMENT: THE DEBATE

• Jurisdiction: North Carolina

§ 27.04. Entrapment: The Debate

[A] Overview

Controversy swirls around the defense of entrapment. Most of it relates to the question of whether the subjective or the objective standard is preferable. Although most courts follow the Supreme Court's lead and apply the subjective test, scholars overwhelmingly favor the objective version.³⁸ The underlying issue in the debate is whether, on the one hand, the entrapped defendant should be excused because he is "innocent" (as subjectivists maintain) or should be exculpated, despite his guilt for the offense, because of the wrongdoing of the police (as objectivists argue).

Most of the entrapment debate is of a negative nature. That is, advocates of each standard generally point to the weaknesses in the opposing position rather than providing support for their own version of the defense. Many of the criticisms on both sides are powerful, so much so that one scholar has observed that "no member of the ^reme Court—and none of the numerous commentators on its work—has advanced a defense of the doctrine that is satisfactory."³⁹

[B] Criticisms of the Subjective Test

[1] "The Legislative Intent Rationale is Fictional"

"[I]t is painfully obvious," according to one observer, that the rationale of the subjective test, namely that Congress did not intend for its statutes to be enforced by tempting innocent persons into violations, is "wholly fictional."⁴⁰ There is nothing in legislative history to suggest that Congress intended, on the one hand, for juries to acquit nondisposed persons who violate its laws as the result of police inducements, while, on the other hand, convicting predisposed persons subjected to the same blandishments.

The Supreme Court in United States v. Russell⁴¹ virtually conceded the fictional nature of the legislative intent argument when it stated that criticism of the rationale was "not devoid of appeal." Nonetheless, it reaffirmed the subjective standard on the basis of stare decisis, the fact that the arguments raised against the objective test were "at least equally cogent," and because Congress, if the legislative intent rationale is unacceptable to it, can "address itself to the question and adopt any substantive definition of the defense that it may find desirable." This is hardly a spirited defense of the theoretical underpinnings of the subjective test.

[2] "The Subjective Test Acquits Culpable Persons"

The subjective test conflicts with existing substantive criminal law concepts. An entrapped...