Caught red-handed, but not guilty

There is a debate among scholars regarding how courts should judge defendants caught in government decoy and sting operations. As a retributivist, I believe we should only punish those who are culpable. Following this assumption, I argue that courts should punish entrapped people if they are culpable and that the subjective test, which holds that a defendant is culpable if he was predisposed to commit the crime, should be the standard by which courts judge defendants who claim entrapment. The objective test, which focuses on the propriety of the government conduct, fails to accurately assess culpability because, under this test, the guilt of the defendant depends largely on what the average person would have done under the same circumstances. I also propose that if government conduct reached the level of outrageous, defendants found to be predisposed may claim that the government violated their right to due process.