Comment by Molly Kathleen Nichols
Entrapment has suddenly become a hot defense—almost chic—used by Congressmen, businessmen, and high-powered drug dealers. Its prominence emerged in the wake of prosecutions of various public officials ensnared by an elaborate FBI investigation tagged Abscam, yet the defense was available—and was frequently used—decades before that investigation. The defense is a stepchild of the law, neither codified nor constitutional, easily manipulated by prosecutors, defendants, and courts.
The law of entrapment is currently unsettled. The courts have, over the past years, created two distinct tests for entrapment. The first and most often used test is statutorily based and focuses on the predisposition of the defendant to commit a crime. The determinative issue is whether the defendant was willing to engage in the criminal activity before the government became involved in the enterprise. The second test, which has recently taken on constitutional dimensions, examines the conduct of governmental officials in the commission of the crime and considers whether that conduct is violative of the defendant's due process right. The courts have consistently attempted to strike a balance between conflicting interests in this area of law. Society has an interest in assuring that crimes, especially those not easily detected, are discovered and prosecuted. Yet the courts must also ensure the integrity of the prosecutorial system and safeguard defendants from egregious police behavior that exceeds the limits of due process of law.
This comment will discuss the development and present validity of the two tests of entrapment. The historical basis of the entrapment doctrine, as well as the impact of elaborate undercover operations such as Abscam, will be examined.
About the Author
Molly Kathleen Nichols.
Citation
58 Tul. L. Rev. 1207 (1984)