June 2007, Volume 93, Issue 4
Entrapment, Punishment, and the Sadistic State
by Andrew Carlon
93 Va. L. Rev. 1081 (2007)
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The entrapment defense is a uniquely American institution, adopted in all American jurisdictions, and almost nowhere else. But while case law and scholarly literature dwell at length on entrapment’s what (what constitutes entrapment; the legal test to be applied), and sometimes on its who (who should rule on entrapment, judge or jury; who qualifies as a state actor), they have comparatively neglected its why—the underlying justification for a defense that, on further examination, seems to violate some of the most basic principles of criminal law jurisprudence. Why should someone who commits a crime, with a criminal state of mind, be found not guilty because the one who tempted him to commit the crime, an otherwise irrelevant fact, was—entirely unbeknownst to him—a police agent?
This Note first shows the insufficiency of existing justifications of the entrapment defense, then provides a more comprehensive explanation for the doctrine. This explanation reveals entrapment to be not a procedural “technicality” protecting a value extrinsic to the underlying prohibition, but rather a substantive defense whose roots run right to the criminal law’s heart: our reasons for punishment. A “punishment-centered” view reveals entrapment to be a manifestation of a totalitarian “sadistic state,” which treats the infliction of punishment not as a means of giving the guilty their just deserts, but as an end in itself, and shows the entrapment defense to be not only a limit on police investigatory technique, but an assertion of individual liberty against the state’s ability to punish.
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