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37 Conn. L. Rev. 67 (2004-2005)
Entrapment and the Problem of Deterring Police Misconduct

handle is hein.journals/conlr37 and id is 85 raw text is: Entrapment and the Problem of Deterring Police Misconduct DRU STEVENSON* ABSTRACT Many of the states currently use a version of the entrap- ment defense known as the objective test, which focuses solely on the extent of police overreaching in the case, and seeks to deter police misconduct by acquitting the defendant. Acquitting defendants as a means of deterring undercover police misconduct, however, is a public policy fraught with problems, and these problems have not been adequately ad- dressed in the literature to date. This article applies the in- sights of modem deterrence theory to wrongful activity by police in undercover operations. In doing so, three general problems emerge. First, the objective test relies on an indi- rect or inverted form of deterrence, where the wrongdoer's punishment consists entirely of a benefit or windfall con- ferred on a third party, the defendant. It is uncertain how such indirect deterrence factors into the decision-making process of police. Second, the objective test breaks down at the individual level. Individual officers may be pursuing less noble ends than the ultimate conviction of an arrestee, in which case the intended deterrence is inoperative. Third, and most significant, entrapment is not a constitutional de- fense, unlike the exclusionary rules, and therefore does not trigger the 'fruit of the poisonous tree doctrine; this allows even conscientious police to risk a successful entrapment de- fense being raised by the accused, if there is the potential for Visiting Scholar, Yale Law School, Summer 2004; Asst. Prof. of Law, South Texas College of Law (Houston, TX). Special thanks to Joshua Dressier, Paul Marcus, Chris Slobogin, Roger Park, Dan Richman, Peter Siegelman, Neal Katyal, Alon Harel, Kevin Yamamoto, and Tim Zinnecker, for their helpful comments, corrections, and suggestions. Two student research assistants, Billy Skinner and Zahra Jivani, deserve credit for their help on this project and forthcoming work on entrapment. Any mistakes or errors are the author's.

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