The troubling entrapment defense: how about an economic approach?

• Author: Elbaz, David J.

1. INTRODUCTION

   Although the idea of entrapment may have existed since biblical times,(1) courts and commentators continue to differ over basic issues regarding the entrapment defense. Today, questions remain regarding why the defense exists, what policies the defense serves, and what restrictions the defense should place on government conduct.(2) These questions--by no means easy to answer--must be addressed for our society to genuinely answer the larger question: to what degree should a free society allow its law enforcement officials to provoke crime in order to identify and punish criminals?

   For several important reasons, the entrapment doctrine as currently articulated by the Supreme Court is troublesome. Foremost, the Court uses legislative intent to justify the barring of convictions for defendants who are not `predisposed' to the crime. This raises two problems. First, there is no legislative support for this proposition; and second, the predisposition distinction is untenable and difficult to apply. In addition, the Court's approach presupposes that the government conduct is irrelevant to entrapment analysis. This raises a third difficult problem. A look at the relevant case law reveals that an enduring minority of Justices, several lower courts, and many states continue to insist that the government conduct is the only relevant issue in entrapment analysis.

   There is a serious need for courts to rethink the current approach to the entrapment defense. The legitimate goal of the defense is to prevent the worst harms associated with overly aggressive law enforcement. The current approach to the defense is unable effectively to achieve this goal. In light of this failure, this Note seeks to develop some of the insights that economic analysis can offer when considering the entrapment defense.

   Basic economic efficiency dictates that entrapment strategies should be employed only when they yield positive benefits to society. Given this principle, the basic question economics asks when evaluating entrapment is what forms of positive benefits are yielded by entrapment strategies. Quite clearly, the benefits are likely to come in the form of easily obtained reliable evidence of criminal activity and increases in criminal deterrence levels. Logically, the next question economics asks when considering entrapment is when are no positive benefits yielded to society by entrapment strategies. This difficult question is the genesis of this Note. Using an economic account of criminal behavior, this Note argues that no societal benefits arise when government conduct gives a rational individual an incentive to commit a crime that he likely would have no incentive to commit under ordinary circumstances. In addition, this Note argues that some entrapment strategies may yield no additional deterrence benefits and may be a waste of limited resources. Ultimately, the aim of this Note is to apply the principle of economic efficiency to entrapment analysis and suggest some restrictions consistent with an efficient entrapment defense.

   Part I of this Note provides an examination of why the entrapment defense exists and concludes that it is a tool of compromise that allows society to capture some benefits of aggressive law enforcement while preventing some of the associated harms. Part II traces the judicial development of the doctrine through a brief review of the Supreme Court case law on entrapment. Part III evaluates the Court's subjective and objective approaches to entrapment and argues that neither approach is satisfactory. Part IV develops an economic model of criminal behavior and applies the model to entrapment analysis in an attempt to advance an argument for restrictions that are consistent with an efficient entrapment defense.

2. WHY DOES THE ENTRAPMENT DEFENSE EXIST?

   Judges and commentators have long debated the appropriate test for entrapment and the procedural issues surrounding the defense; however, surprisingly little effort has been devoted to what is often considered "the troubling nature of the defense."(3) Evidently, time, and precedent have led to the near indisputable right to assert an entrapment defense,(4) and while the scope of circumstances that justify a successful entrapment defense is roundly debated, the existence of the right is not. Nevertheless, some commentators argue that judicial opinions have completely failed to provide a satisfactory rationale for the existence of the defense,(5) while others accept the defense as merely a creature of judicial flat.(6) Regardless of the doctrine's true theoretical underpinnings, it remains doubtful that stare decisis alone has supported the doctrine through nearly a century. Supreme Court Justices and commentators of the highest intellectual caliber have written extensively on entrapment, and it is improbable that a fundamentally erroneous doctrine would survive such scrutiny.

   The question of why the doctrine exists does deserve some attention, however. For the purpose of this inquiry, let us begin with the assumption that a society is initially faced with a choice between two law enforcement models. The Aggressive Law Enforcement Model describes a society which condones its law enforcement officers' use of sting operations, inducements, and trickery to create manufactured crimes and prosecute citizens whom the law enforcement agents have encouraged to partake in crime. The Restraint of Law Enforcement Model describes a society where law enforcement exists only to detect existing crime. Under that model, society will not condone the use by law enforcement of the methods mentioned above and will reject any prosecution where law enforcement agents employ such methods. The following describes the rationales for each model and concludes that the entrapment defense exists as a tool of compromise between the two. The entrapment defense allows society to capture some of the enforcement and deterrence benefits of the Aggressive Law Enforcement Model, while simultaneously carving out exceptions that help maintain certain fundamental personal freedoms and protections inherent in the Restraint of Law Enforcement Model.

   1. Rationales Supporting the Aggressive Law Enforcement Model

      "[S]tealth and strategy" have long been considered "necessary weapons" for successful law enforcement.(7) Many crimes, such as official corruption and contraband offenses, are extremely difficult to detect through the use of conventional law enforcement.(8) Unhindered law enforcement involvement in manufactured criminal activity allows police to use controlled circumstances to capture willing participants, and therefore minimizes the costs associated with apprehension and conviction.(9) As an added benefit, when the police can design and participate in manufactured crimes for enforcement purposes, higher deterrence levels may be achieved. Potential criminals, aware that any cohort may be a law enforcement agent, may commit less crime.(10)

      Under American criminal law, one who commits a proscribed act, with the requisite mental state and without a valid defense, is blameworthy and subject to punishment. Regardless of whether or not he was previously willing to commit an offense, an allegedly entrapped defendant has undeniably engaged in conduct the law defines as criminal. In a well-executed sting, the target has committed the act with the requisite mental state, and under circumstances that provide none of the usual defenses of justification or excuse. Arguably, there is no valid source of judicial authority that allows judges to depart from the legislative determination that the defendant's conduct is criminal.

      Entrapment strategies are effective and necessary methods of fighting crime, some argue. Furthermore, the reasoning continues, there is no real distinction between a criminal who responds to private inducements(11) and one who responds to government inducements. Both are guilty of the elements of a criminal offense, and the actor responding to either should be punished.

   2. Rationales Supporting the Restraint of Law Enforcement Model

      To some, the image of unchecked police officers preying upon the wants and weaknesses of citizens, using deceit and trickery to persuade others to commit a crime, is inconsistent with life in a free society.(12) Arguably, society suffers damage each time a law enforcement agent spends time aiding the commission of a crime rather than detecting existing crime to individuals, damage to the standing of law enforcement institutions, and the damage caused by police abuses as well as other harms.

      1. The Harms to Individuals Who Respond to Inducements

         Under the Aggressive Law Enforcement Model, the government is given license to create crime and attempt to corrupt the otherwise innocent. If, in actuality, a particular individual could not be expected to commit a similar crime with substantial certainty under ordinary circumstances, this activity is devoid of social justification.(13) A court is faced with punishing an individual who, absent government inducement, would not have committed such a crime. The individual must accept all the harms associated with the punishment that society imposes, even though such an individual poses no threat to society that is worthy of the application of criminal law.(14)

      2. The Harm to the Standing of Law Enforcement Institutions

         The development of distrust between citizens and law enforcement is harmful to society.(15) Deceit, trickery, and attempts to corrupt innocent citizens by police are all activities that may erode the public's respect for law enforcement agents and the laws they must enforce. A free society should not condone random tests of virtue conducted by its government.(16) Our society's high regard for privacy and personal integrity requires restraint on such law enforcement activities.(17) Similarly, in order to protect the integrity of the judiciary, the judicial process should be closed to those who...