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41 Am. Crim. L. Rev. 1389 (2004)
Rethinking Entrapment

handle is hein.journals/amcrimlr41 and id is 1399 raw text is: RETHINKING ENTRAPMENT
Joseph A. Colquitt*
Entrapment is when you, the big, bad policeman, put evil thoughts into
the mind of an otherwise innocent, law-abiding citizen and so coerce
him to commit a crime for which you can then arrest him.'
Sergeant Frazier's sarcasm may be difficult for some to understand, but a brief
look at the rancor surrounding entrapment2 provides context for his sentiments.
There are two traditional approaches to entrapment: the subjective3 and objective4
tests. The majority position, subjective entrapment, focuses on the actions of the
accused, particularly the predisposition of that accused to engage in the type of
crime charged.5 A minority of jurisdictions, by way of contrast, employs the
objective model of entrapment, which focuses on the actions of law enforcement
and bars over-involvement in inciting criminal activity.6
Law enforcement tends to dislike the objective model because it limits the
measures agents can take to apprehend or otherwise discourage criminals. In
* Jere L. Beasley Professor of Law, University of Alabama School of Law; retired circuit judge, Sixth Judicial
Circuit, State of Alabama. The author thanks the University of Alabama Law School Foundation for its generous
support. I am indebted to John C. H. Miller I1, Jamie Cowley, Adam A. Bollaert, Will Holmes and Daryl P. Harris,
who provided thorough research assistance and helpful comments. I also acknowledge the valuable editing
assistance rendered by Amanda Mulkey and Chris Schwan. Naturally, I alone remain responsible for any errors.
2. As used throughout this Article, entrapment and the verb entrap are used to refer to improper police
procedures. See, e.g., BLACK'S LAW DICTIONARY 532 (6th ed. 1990) (describing entrapment as inducing a person
to commit a crime not contemplated by him, for the purpose of instituting a criminal prosecution against him );
entrapment as the [i]nducement of an individual into a crime that the individual had not previously contemplated
committing by law enforcement officers or their agents).
The words entrap or entrapment are not used in the common import that a person can be ensnared or
entrapped by permissible police actions. See, e.g., Newman v. United States, 299 F. 128, 131 (4th Cir. 1924)
(noting that [i]t is well settled that decoys may be used to entrap criminals... [b]ut decoys are not permissible to
ensnare the innocent and law-abiding). In that sentence, Judge Woods used entrap as a synonym for ensnare, a
permissible use in conversation. See also BLACK'S LAW DICTIONARY 532 (6th ed. 1990) (listing ensnare, catch or
involve as synonyms for entrap); ROGET'S INTERNATIONAL THESAURUS 277 (6th ed. 2001) (listing entrap as a
synonym for ensnare). In an article on entrapment, however, it seems better to use terminology in a more careful
and predictable manner. Ergo, to entrap and entrapment are used in this Article to refer to impermissible or
arguably impermissible practices by police. I try to cleave to this approach throughout the Article.
3. See Sorrells v. United States, 287 U.S. 435, 451-53 (1932).
4. Id. at 454-55 (Roberts, J., dissenting in part).
5. id. at 451. (The predisposition and criminal design of the defendant are relevant.).
6. id. at 454-55 (Roberts, J., dissenting in part) (noting that extreme government involvement in the planning
and commissioning of a crime for the sole purpose of indicting an individual should revolt any tribunal).


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