What is entrapment defense child crimes

| by Max Soni

Thanks for visiting Spodek Law Group. If you’re reading this article, you’re likely facing federal charges involving child exploitation or child pornography – and you’re wondering if law enforcement crossed the line. At Spodek Law Group, we’re a second-generation law firm managed by Todd Spodek, with over 40 years of combined experience handling federal criminal defense cases that other attorneys won’t touch. We’ve represented clients in cases that captivated national attention – from the Anna Delvey Netflix series to the Ghislaine Maxwell juror misconduct case. This article explains what entrapment is, why it almost never works as a defense in child-related federal crimes, and what you’re actually facing in 2025.

The entrapment defense sounds promising when you first hear about it. You think: “The FBI contacted me first. They set up the whole situation. I wouldn’t have done this if they hadn’t pushed me.” That’s not how federal courts see it, that’s not how this works.

Entrapment has two elements under federal law – government inducement of the crime, and your lack of predisposition to commit it. Federal courts use what’s called the “subjective test” for entrapment, which focuses almost entirely on your state of mind before the government got involved. Did you have a preexisting willingness to commit this type of crime? That’s what matters. The government’s tactics matter far less than what was already in your head.

Predisposition is the element that kills entrapment defenses in child pornography and child exploitation cases. Prosecutors will comb through your internet history, your computer files, your chat logs going back years. They’ll find that Google search from three years ago, that deleted file, that conversation you had before any government agent contacted you. They’re looking for any evidence – any shred of proof – that you were already inclined toward this conduct before their undercover operation began.

The burden of proof makes this worse. Once the government shows inducement, you have to prove you weren’t predisposed. You’re not just raising reasonable doubt – you’re affirmatively proving something about your own state of mind. That’s an extraordinarily difficult standard to meet when federal prosecutors are presenting your search history to a jury.

Between 2006 and 2010, only 22 defendants nationwide successfully used entrapment as a defense in federal court. Twenty-two cases. Out of thousands and thousands of federal prosecutions during that period. The Department of Justice tracks these statistics because successful entrapment defenses are that rare. In child pornography cases specifically, the success rate is even lower.

There’s one Supreme Court case that every defendant points to – Jacobson v. United States from 1992. Keith Jacobson ordered child pornography after the government spent 26 months sending him repeated mailings through fictitious organizations, each one more aggressive than the last. The Supreme Court found entrapment because the government couldn’t prove Jacobson’s predisposition was independent of their 26-month campaign to create it. Twenty-six months of continuous government contact – that’s what it took for the Supreme Court to find entrapment in a child pornography case.

Your case probably doesn’t look like Jacobson. Most cases involve an undercover agent in a chat room, maybe a few conversations over a couple weeks or months, then an arrest. Federal judges have seen these fact patterns hundreds of times. They know the difference between legitimate law enforcement and entrapment, they’ve rejected entrapment defenses in cases far more compelling than yours probably is.

The enforcement environment in 2025 is aggressive – more aggressive than it’s ever been. Operation Restore Justice, announced by the Department of Justice in May 2025, resulted in 205 arrests and the rescue of 115 children over just five days. All 55 FBI field offices participated. Child Exploitation and Human Trafficking Task Forces are operating in every major city, running sophisticated undercover operations online.

These task forces use techniques that feel like entrapment but aren’t. An undercover agent posing as a 14-year-old girl initiating contact with you – not entrapment if you respond and escalate. An agent in a chat room sharing a link to illegal material – not entrapment if you click it and download more. Federal courts have repeatedly upheld these tactics as lawful investigative techniques. What looks like entrapment to you looks like evidence of predisposition to federal prosecutors.

Sentencing in these cases is brutal. Federal law under 18 U.S.C. § 2251 carries a mandatory minimum of 15 years and up to 30 years for production of child pornography on a first offense. Distribution and receipt carry a 5-year mandatory minimum, or 15 years if you have a prior conviction. Even simple possession – which has no mandatory minimum – can result in up to 20 years in federal prison. The average sentence for child pornography offenses in fiscal year 2024 was 115 months – that’s nearly 10 years. These aren’t numbers you can talk your way out of with an entrapment defense that has a success rate near zero.

Most defendants who think they have an entrapment defense actually need to focus on other issues. Challenging the search warrant that led to evidence on your computer. Suppressing statements you made to agents without understanding your rights. Negotiating a cooperation agreement that reduces your exposure. Fighting for a departure or variance at sentencing based on mental health issues, lack of criminal history, or other mitigating factors. These strategies have a much higher success rate than entrapment – but they require a defense attorney who actually knows federal criminal procedure, who has handled these cases before, who understands what federal prosecutors will and won’t agree to.

Todd Spodek is a second-generation criminal defense lawyer who has handled federal cases for many, many years. Our firm has former federal prosecutors on staff who understand exactly how the government builds these cases – because they used to build them. We know which arguments work in federal court and which ones waste time and credibility with the judge. We’ve represented clients in cases that other law firms said were unwinnable, cases that ended up on Netflix, cases that made national headlines.

If you’re charged with a federal offense involving children, you need to understand what you’re actually facing. The Federal Sentencing Guidelines, the mandatory minimums, the enhancements for number of images or age of victims, the lifetime supervised release requirements. You need a lawyer who can explain this in terms you understand – not someone who’s going to promise you an entrapment defense will work when the statistical reality says it won’t.

Entrapment is a legal defense that exists in theory but almost never works in practice – especially in child pornography and child exploitation cases where predisposition is so easy for prosecutors to prove. The better question isn’t whether you can claim entrapment. The better question is what defense strategy actually has a chance of reducing your exposure, protecting your rights, and getting you the best outcome possible under very difficult circumstances.

We’re available 24/7 to discuss your case. If you’re facing federal charges, if you’re wondering whether you have any defenses at all, if you need someone who understands both the law and the reality of federal court – contact Spodek Law Group. We’ve been handling these cases since 1976, we have offices throughout New York and we represent clients nationwide. This is what we do.