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Criminal Law Forum (2016) 27:3573 The Author(s). This article is published with open access at Springerlink.com 2016
DOI 10.1007/s10609-015-9271-2
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Web End = LIAT LEVANON*
THE LAW OF POLICE ENTRAPMENT: CRITICAL EVALUATION AND POLICY ANALYSIS
ABSTRACT. This article provides a critical analysis of the law of police entrapment and proposes a new foundation for this law. The article shows that the shift of scene assumption underlies existing and proposed legal tests for the legitimacy of entrapment. According to this assumption, in some identiable cases the defendant would have committed a similar oence at a dierent time and location absent police entrapment. In these cases, entrapment is morally and economically insignicant and hence legitimate. Using probabilistic analysis, the article advances the argument that the shift of scene assumption is misguided. Entrapment actually changes (usually raises) the probability of commission, and hence also the defendants punishment expectancy, in almost all cases. This increase is hard to justify on grounds of justice or on economic grounds. The article then proposes a dierent basis for the analysis of entrapment, building on the idea of reallocation of burdens: where the defendant creates particularly heavy burdens that go beyond the oences harm expectancy, it is justied to increase his punishment expectancy through entrapment. Furthermore, entrapment should be conceptualized as a mitigating factor, thus allowing the courts to correct exaggerated or undue increases in the defendants punishment expectancy.
I INTRODUCTION
Drug dealing around schools is a pressing issue. The police send a young and boyish-looking police ocer to hang around a school and ask passers-by if they could get him some Heroin for a good price. Now consider two scenarios: in the rst, the school is in a neigh-bourhood with high crime rates, and John, a drug dealer, is entrapped. In the second, the school is in a middle-class neighbourhood free of crime, and Donna is entrapped. Donna has never sold drugs before but is now in great nancial diculties; as the undercover
* Liat Levanon is with Brunel Law School, Brunel University London. I thank Dimitrios Giannoulopoulos and Paul Roberts for their important comments on previous drafts....