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A. The “Unwary Criminal” and the “Unwary Innocent”:
The Supreme Court first recognized the entrapment defense in
Sorrells v. United States
and did so without grounding it in the Due
Process Clause or any other constitutional provision.16 Conceding
that “[a]rtifice and stratagem may be employed to catch those engaged
in criminal enterprises,”17 the Court nevertheless barred prosecution
of defendants for “a crime where the government officials are
the instigators of his conduct.”18 The dividing line between a legitimate
sting operation and an impermissible “instigation” was unclear
when the defense was first established and remains so today. The
Court tried to establish boundaries for sting operations, arguing that
the government exceeds its police powers when it “implant[s] in the
mind of an innocent person the disposition to commit the alleged offense
Process Clause or any other constitutional provision.16 Conceding
that “[a]rtifice and stratagem may be employed to catch those engaged
in criminal enterprises,”17 the Court nevertheless barred prosecution
of defendants for “a crime where the government officials are
the instigators of his conduct.”18 The dividing line between a legitimate
sting operation and an impermissible “instigation” was unclear
when the defense was first established and remains so today. The
Court tried to establish boundaries for sting operations, arguing that
the government exceeds its police powers when it “implant[s] in the
mind of an innocent person the disposition to commit the alleged offense
and induce[s] its commission in order that . . . [it] may prose-
article here:
http://www.law.upenn.edu/journals/co...1475(2009).pdf
article here:
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