For over 100 years the United States judiciary has struggled with the sting and the entrapment defense, examining whether government agents deviously manufacture crimes or merely afford criminals the opportunity to commit them. The sentiments of Justice Holmes were rare for his time, but today they are reflected in a growing sympathy for sting victims. While courts are now more willing than ever to find entrapment, they still differ over the burden of proof that the government must satisfy to overthrow an entrapment defense. Specifically, courts disagree about whether the burden includes proof that the defendant had the ability and resources to commit the specific crime, so that if the government had not done so, it is likely that someone else would have induced the defendant to commit the crime. This requirement is known as the "positional" factor or "readiness" element. The prelude to this disagreement was the latest ruling of the United States Supreme Court in the entrapment arena. In Jacobson v. United States, the Supreme Court held that "[w]here the Government has induced an individual to break the law and the defense of entrapment is at issue . . . the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents."
David D. Tawil,
"Ready? Induce. Sting!": Arguing for the Government's Burden of Proving Readiness in Entrapment Cases,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol98/iss7/7