Andrew Carlon (Virginia) has posted Entrapment, Punishment, and the Sadistic State on SSRN. Here is the abstract:
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 right to punish.