Allen, Ronald J., Luttrell, Melissa, Kreeger, Anne, Journal of Criminal Law and Criminology
The edges of the criminal law in the United States (and elsewhere, but we concentrate on the United States in this paper) are partially formed by various defenses that reflect in large part the frailty of human nature. The commands to forgo violence will not constrain a person at risk of his own existence, nor when loved ones are threatened, and some believe that it is fight that they not attempt to do so. Mandates to respect the inviolability of personal property will not avail when bodily integrity is at stake, nor should they in the face of peril. And so on. These defenses recognize that virtually anyone can be induced to commit an otherwise illegal act when the ratio of potential benefit to potential harm (expected return, in the language of micro-economics) is high enough. So, too, with entrapment. Entrapment merely completes the picture of human motivation by including financial and emotional issues within the set of motivations that can lead to exculpation. At its deepest level, entrapment, like many other criminal defenses, thus simply recognizes that, as situations become increasingly skewed from the conventional, they become increasingly inadequate justifications for, and less accurate predictors of the utility of, criminal sanctions.
Yet, unlike most other criminal defenses, controversy over the very nature of entrapment continues unabated. As is well known, in a series of cases the Supreme Court created the defense. Perhaps the circumstances of its creation contributed to the confused state of the law today. When the Supreme Court in Sorrells v. United States(1) first recognized entrapment as a defense in federal criminal law, it struggled to find the authority to do so. As Sorrells was decided in 1932, one might have expected the Court to have found its authority in substantive due process. But the right to the entrapment defense, unlike the right to contract, was hardly a tradition in Anglo-American jurisprudence. Instead, the Court concluded that Congress in enacting the law in question did not intend for it to apply to the entrapped.(2) The concurring opinion of Justice Roberts argued that the defense should have been based on the supervisory powers of the court.(3) Both Sorrells' opinions assumed that entrapment was serf-explanatory and that it was wrong. Both failed to clearly delineate the contours of the defense, probably because the only issue in Sorrells was the Court's authority to permit the defense in the absence of a legislative or constitutional directive.(4)
The two tests in current use, born together in Sorrells, are generally called the objective and the subjective tests (although neither is inherently more objective--or subjective--than the other). Both formulations require that the crime be induced, or encouraged, by government agents. The subjective test asks, "Was the defendant predisposed to commit the crime when he was approached by the government agent," while the objective test asks, "Did the government's encouragement of crime exceed acceptable limits?" The subjective test, the test advanced by the Sorrells majority, has prevailed in federal criminal law; many states have adopted some version of the objective test.(5) Controversy persists over many issues, in particular the relative advantages of the two tests, their respective meaning, and subsidiary issues, in particular why entrapment does not extend to entrapment by a private party.(6)
The controversy over entrapment has attracted much scholarly attention, and our collective understanding of the various issues has much advanced as a result. Of the many excellent analyses, three stand out as particularly penetrating: the articles by Professors Carlton and Park previously cited, and that of Professor Seidman.(7) We build on those works, a general knowledge of which is assumed here, in an effort to clarify the nature of entrapment. We make the following points:
1. The controversy over the two versions of the test-the subjective and objective-is quite beside the point, because the two tests will virtually never lead to different results;