The Scholarly Commons

 

Document Type

Article

Publication Date

6-6-2008

Abstract

Although few people wanting to learn about the entrapment defense would start their research by reading Lochner v. New York, this short paper, written for the Criminal Law Conversations Project, argues that it is with Lochner that a real understanding of entrapment doctrine must begin.

Speaking broadly, Lochner stands for a jurisprudential tradition that equates market allocations with freedom and treats redistributive departures from market baselines as coercive and problematic. When the police entrap a suspect, they redistribute the cost of crime control from outcomes produced by the “ordinary” market for criminal acts. Instead of accepting privately established market rates for crime as a baseline, they influence the market, thereby shifting the cost of deterrence onto people who might not otherwise become entangled with the criminal law. When judges, in turn, resist these efforts, they are insisting that the market distributions are natural and sacrosanct. They are, in other words, rejecting the critique of Lochner that has been widely accepted elsewhere in the law.