The task of this Article is to assess the competing approaches that circuit courts have taken in defining the predisposition element in entrapment cases. It then attempts to try to reconcile them, not only with Jacobson v. United States, but also with policy concerns underlying the rest of the Supreme Court's entrapment jurisprudence, particularly in light of the increased politicization of federal criminal law through investigations of public officials' conduct by independent counsel. This Article will first frame the central issue, the supplementary mens rea requirement arising in entrapment cases. Part II then will review the common law development of the federal entrapment defense, in the context of an independent counsel investigation of public officials for mens rea crimes, with particular emphasis on the Supreme Court's 1992 decision in Jacobson v. United States. Part III will detail the two essentially divergent views that circuit courts have taken over the meaning of the term “predisposition” in the wake of the Court's decision in Jacobson, including the 1994 opinion by Chief Judge Posner of the Seventh Circuit in United States v. Hollingsworth. The Article will explain that Hollingworth's interpretation of Jacobson that when, “but for” the Government's inducement, the defendant objectively would not have committed the offense in question, is incomplete. Part IV will attempt to reconcile the competing approaches with the Court's previous entrapment decisions in an attempt to ascertain which approach is most consistent with its prior entrapment jurisprudence and which best helps attain the contemporary goal of reducing the “political” component of criminal judicial enforcement. The Article concludes that a more appropriate focus for judicial or jury application of the dispositive “predisposition” test for entrapment is on the objectively historical evidence of the defendant's prior similar acts (justifying the Government's initial decision to target the defendant) and his or her initial responses to government inducement (justifying any continued targeting).
James F. Ponsoldt and Stephen Marsh,
Entrapment When the Spoken Word is the Crime
Available at: https://digitalcommons.law.uga.edu/fac_artchop/432