Entrapment - The Two Approaches To Entrapment, Due Process, Bibliography

The entrapment defense has received wide public attention in many prosecutions ranging from drug sales, to public corruption, to financial crimes. The defense is very significant, for the criminal defendant successfully raising entrapment will have all charges dismissed if a showing is made that the government was improperly involved in the creation of the criminal activity. Entrapment has been controversial in the United States since its inception. Some individuals view the defense as imposing improper judicial or legislative restrictions on effective law enforcement investigative techniques. Others would expand the defense in order to ensure that individuals' rights in the criminal justice system are preserved.

Most of the usual defenses in criminal cases have long traditions, dating back to the early English common law. Claims such as duress, self-defense, and insanity have been litigated for hundreds of years in both England and the United States. The defense of entrapment does not have roots traceable back to English common law. Rather, the entrapment defense developed in the United States in the early part of the twentieth century. Judges were tentative then, but began to offer outlines of the defense in a series of cases involving quite egregious overreaching by law enforcement officers. Perhaps the most important early statement concerning entrapment was made by a famous Justice of the U.S. Supreme Court, Louis Brandeis, when he commented in the case of Casey v. United States:

The Government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creation . . . this prosecution should be stopped, not because some right of [the defendants] has been denied, but in order to protect the Government. To protect it from illegal conduct of its offices. To preserve the purity of its courts.

By the middle of the century the defense was well established, with the Court issuing several opinions explaining the rationale and procedures for it.

In more recent times, the defense has provoked an intense debate centering on the proper balance in the criminal justice system. That is, some government officers have emphasized the need for strong tools to be given to law enforcement officers in the investigation and prosecution of crime. At the same time, other criminal justice professionals have been concerned with the preservation of individual rights of criminal defendants in the criminal justice system. The entrapment defense brings into sharp focus both points of view, as all have recognized that the infiltration of and participation in criminal endeavors by law enforcement can be an important component in the effort to prosecute widespread conspiracies. The Supreme Court has always indicated that such approaches by the government are "recognized as permissible means of investigation." Especially in combating crimes involving narcotics and white collar offenses, close involvement by law enforcement may well be crucial.