Student Review:

Marcus begins his article by introducing the stories of seven individuals who were the targets of elaborate law enforcement sting operations.  Each of the seven brought entrapment defenses at trial, and only two were successful.  The defendants did not meet the subjective test of entrapment which looks to if the suspect was predisposed toward criminal activity.  During this time, the entrapment defense was deteriorating.  However, the 1992 decision in Jacobson v. United States has in Marcus's words, resurrected the defense.  In fact, Marcus believes that the new Jacobson approach to the entrapment defense could of changed the convictions for the five defendants whose arguments once failed.
      Different tests have developed to evaluate an entrapment defense.  The objective test focuses on whether the police action was likely to cause an average person to commit a crime.  The test adopted by the Supreme Court is a subjective test that looks at the defendant's predisposition to commit the crime.  This test must attempt to determine what was the defendant's �predisposition and state of mind at the time of the crime.  However, in Jacobson and Sherman v. United States, the Supreme Court has begun to not only look at the predisposition of the defendant, but also has condemned inappropriate law enforcement actions.  The Court's analysis takes into account both the defendant's state of mind and the inducement activities of the government.  Marcus states that the message from these cases is that judges must now carefully scrutinize long-term government operations to determine if the government actually provoked criminal activity.
 Marcus demonstrates that lower courts are now making an effort to find entrapment when government involvement is extensive.  While the Supreme Court is not likely to adopt the objective test, their approach to the subjective test has changed.  The inquiry now goes beyond the defendant's predisposition to analyze the conduct of law enforcement.  This new approach can correctly determine if the defendant would have posed a real threat to the community without government involvement. Looking at the rationale of the Jacobson decision, the five defendants previously mentioned would of had a better claim under the entrapment defense.
      Marcus concludes by stating that any limits that the new entrapment test puts on government behavior is proper and beneficial.  The government should not engage individuals in long-term complex operations.  Cases in which the government encourages criminal behavior and also provides for the completion of the crime with detailed instructions and encouragement should not be permitted.  The benefits of the entrapment defense not only includes control of extreme government behavior, but also allows the courts to make a proper determination of when a suspect truly is a threat to society.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999