Since the terrorist attacks of September 11, 2001, the Federal Bureau of Investigation (FBI) has quietly built a network of over 15,000 "confidential human sources," including 3,000 operatives enlisted to help "prevent, disrupt, and defeat terrorist operations before they occur." (1) In several high-profile cases, the FBI has paid these informants as much as $100,000 for helping identify and thwart would-be terrorist attacks, and the agency now spends $3.3 billion annually in the overall counterterrorism effort. (2) By many measures, the strategy has proven remarkably successful. Over the past decade, the Department of Justice has successfully prosecuted over 500 "terrorism-related" cases, and, of course, there has not been a single successful, large-scale terrorist attack on U.S. soil. (3)
But the extent to which many of these convicted terrorists ever posed any credible threat to the United States remains in dispute. Among the dozens of high-profile terrorism plots foiled in recent years, all but a few were, in fact, FBI sting operations. (4) Many of those caught up in the schemes appear to have been hopelessly naive or inept, incapable of independently plotting (let alone consummating) a feasible attack. (5) In the popular press, the improbability of such plots has generated skepticism: several authors have suggested that the FBI, in its zeal to demonstrate tangible success in the fight against terrorism, has been improperly manufacturing nonexistent terrorist schemes. (6) Many of these criminal defendants have advanced similar arguments in court, (7) but to date, legal claims of "entrapment" have not prevailed in a single post-9/11 terrorism prosecution. (8)
The difficulty in successfully asserting the entrapment defense--both in terrorism cases and more quotidian criminal prosecutions--stems from the unique contours of the doctrine itself. Under the "subjective test" employed in the federal courts and the majority of states, entrapment excuses criminal liability where two key conditions are satisfied: (1) government agents induce the charged offense, and (2) the defendant is not otherwise predisposed to commit the crime. (9) While the distinction between an improper inducement and a mere opportunity is occasionally disputed at trial, the predisposition element "has come to dominate the entire entrapment dilemma." (10) Factors like the nature or size of the inducement, the complexity of the government artifice, or the independent capacity of the defendant to commit the crime are largely irrelevant under this approach; rather, "the controlling question" is "whether the defendant is a person otherwise innocent" (rather than one prone to criminality), (11) The defendant's liability for the underlying substantive offense thus hinges on the personality, reputation, and criminal history of the accused--and, in terrorism cases, often on the defendant's political or religious views. (12) Ultimately, where the government succeeds in inducing a "nonpredisposed" defendant into criminal wrongdoing, the court infers that Congress did not intend the relevant criminal statute to support such a prosecution. Thus, purely as a matter of statutory interpretation, the entrapped party is deemed not guilty of the substantive offense. (13)
The development of the entrapment doctrine presents something of a historical puzzle. Although entrapment was unknown at common law, it rapidly entered into American law (and only American law (14)) during the first few decades of the twentieth century. (15) "In retrospect," one leading scholar has observed, "it is somewhat remarkable that the entrapment doctrine won credibility in America in such a short time." (16) The defense is unusual because it makes a searching inquiry into the defendant's character or criminal propensities the centerpiece of the criminal trial. This stands in marked contrast to the traditional focus of Anglo-American criminal jurisprudence, which generally spurns such evidence as irrelevant to the central issue of moral blameworthiness for a particular, volitional criminal act. (17) The development of the subjective test is odder still given that it emerged at the precise moment that Progressive Legal Thought was successfully pulling other areas of the law away from such inquiries, promoting instead objective standards in tort, contract, and property. (18) In the eighty years since the Supreme Court first recognized the defense in Sorrells v. United States, (19) jurists and legal commentators have regularly criticized the entrapment doctrine's emphasis on predisposition as "confus[ing]," (20) "[in]coherent," (21) and even "meaningless." (22) But none of these scholarly treatments has provided a satisfactory genealogy for the defense. In short, we lack a compelling account of why such a peculiar doctrine first emerged as it did.
This Article aims to fill that gap by revisiting the intellectual context in which the entrapment defense arose and, in particular, by linking the doctrine's development to the contributions and arguments of positivist criminology. Widely credited with ushering in the modern discipline of criminology, the positivist school first emerged in late nineteenth-century Italy, where its chief exponents trumpeted the need for a scientific approach to exposing, studying, and combating the causes of criminality. (23) Italian legislators and lawyers were wary of many of the movement's more iconoclastic contributions, but in the United States, positivism encountered a far more receptive audience. (24) Indeed, recent legal scholarship has begun to rediscover the profound importance of Italian positivism in early twentieth-century legal thought in the United States, (25) as well as the enduring importance of these ideas in contemporary criminal law and policy. (26) Jonathan Simon has argued, for instance, that many aspects of American penal policy today--support for the death penalty as incapacitation, pretrial preventative detention, civil commitment for sexual offenders, and a renewed interest in rehabilitation--all bear the imprint of this positivist legacy. (27) The central argument here is that the modern entrapment doctrine, which formed while positivist criminology was gaining purchase in the American legal imagination, must be added to the list. The entrapment doctrine is unique, however, in that it represents an area where positivist ideas not only inform contemporary policy, but also have embedded themselves into the substantive law itself.
Part I of this Article introduces positivist theory--with particular emphasis on the works of Cesare Lombroso, Enrico Ferri, and Raffaele Garofalo--and traces positivism's reception in the United States. Distinctive features of the positivist project, particularly "differentiation," "pathology," and "interventionism," are then explored in greater detail. Part II connects these ideas to the development of the entrapment doctrine in American courts in the early twentieth century, when the notion of criminal predisposition became the dispositive feature of the entrapment inquiry. Part II.A traces the development of the entrapment doctrine in American courts from the Civil War to the Supreme Court's recognition of the defense in 1932. Part II.B then offers a closer reading of these cases, emphasizing the distinct influence of positivist assumptions throughout these opinions. The contours of the modern entrapment doctrine--chiefly the focus on predisposition, but also the strained "statutory interpretation" rationale upon which the doctrine has since rested--become intelligible only within this intellectual context.
This Article is primarily historical and descriptive, but it is animated by the belief that entrapment ought to play a more prominent role in discouraging highly invasive, abusive, or fundamentally misguided law enforcement practices. Critics of the federal courts' subjective test will find this historical background useful, insofar as it ties the entrapment doctrine to a criminological perspective that, in many respects, is now discredited and defunct. But this Article concludes, perhaps counterintuitively, by suggesting that the modern entrapment doctrine's primary weakness is not its underappreciated embrace of outmoded criminological assumptions. Rather, perhaps the trouble with the entrapment doctrine is that it fails to embrace positivist theory enough.
THE ITALIAN SCHOOL COMES TO AMERICA
The primary object of positivist criminology--or "criminal anthropology" as its leading exponents dubbed their new science--was the systematic and empirical study of the origins of crime (and the deployment of such knowledge "to preserve civil society from the scourge of criminality"). (28) Champions of the new discipline viewed themselves as members of "a progressive movement in criminal science" (29) and vociferously opposed the "classical" approach that characterized earlier thinking about criminal law and justice. The classical predecessors of the positivists, beginning with eighteenth-century reformers like Cesare Beccaria and Jeremy Bentham, sought to eliminate barbarism and irregularity from the administration of criminal justice; their project was the development of a rational, systematic, and proportional means of delivering justice through law. (30) Classical jurisprudence thus focused more on the content and function of criminal law and less on the origins of crimes and criminals, but this work was necessarily predicated upon certain assumptions about criminality. Specifically, classicists conceived of the offender as a rational actor who had free will, was responsible for particular acts of wrongdoing, and responded to penal sanctions tailored to moral fault. (31)
The positivist school coalesced as an assault against many of these basic assumptions. (32) Whereas classical jurisprudence's understanding of crime lacked empirical foundations, the positivists boasted that...