Abscam, the Judiciary, and the Ethics of Entrapment

Part I of this Article surveys the development of the competing threads of entrapment theory. Part II shows how these theories were applied in the Abscam prosecutions. Part III turns to the predisposition test and demonstrates its analytical flaws and its ineffectiveness in restraining he improper use of inducements in undercover investigations. Part IV offers specific suggestions for a federal entrapment statute to remedy these defects. The statute allows an entrapment defense where the undercover techniques used fall outside a narrowly defined range of permissible conduct. If the government\u27s conduct is permissible, the statute nevertheless requires the decision-maker to examine whether the decision to focus an investigation on a defendant was based on a reasonable suspicion that the individual was engaged in criminal activity. The advantages of such a statute are twofold. It clearly limits the executive\u27s investigative powers, and it involves the judiciary more fully in checking investigatory excesses