§ 27.03 ENTRAPMENT: THE OBJECTIVE TEST

• Jurisdiction: United States

§ 27.03. Entrapment: The Objective Test

[A] Rule

For more than three quarters of a century, the so-called "objective" version of the entrapment defense has been defended by a minority of justices of the Supreme Court, and a majority of scholars who have written on the subject.²⁵ In Sorrells v. United States,²⁶ Justice Owen Roberts, speaking also for Justices Louis Brandeis and Harlan Stone, favored an objective test. In Sherman v. United States,²⁷ Justice Felix Frankfurter wrote a four-justice concurrence in favor of the test. In United States v. Russell,²⁸ the objective test was favored again by four justices.

Whereas the subjective test primarily centers on the defendant—whether she was predisposed to commit the crime—the objective standard focuses more on police conduct. According to Justice Frankfurter in Sherman, entrapment occurs when the "the police conduct . . . falls below standards, to which common feelings respond, for the proper use of governmental power." As he explained the objective approach:

[The police] should act in such a manner as is likely to induce to the commission of crime only these persons [ready and willing to commit further crime should the occasion arise] and not others who would normally avoid crime and through self-struggle resist ordinary temptations. This test . . . [focuses on] the likelihood, objectively considered, that [the police conduct] would entrap only those ready and willing to commit crime.²⁹

In evaluating police conduct according to the objective test, a court must consider how the police inducements would affect an individual. However, unlike the subjective test that focuses on the impact of police conduct on a specific person—the defendant—the question here is "whether, under the circumstances, the governmental activity would induce a hypothetical person not ready and willing to commit the crime to engage in criminal activity."³⁰

The hypothetical person against whom the police conduct is measured apparently includes some of the characteristics of the actual defendant. For example, in Sherman, S was a drug addict in rehabilitation who distributed drugs to a government agent as a favor, and only after multiple pleas. The concurring justices believed that S was objectively entrapped as a matter of law. This view is hard to justify if the test is understood to be whether the police conduct would have caused an average law-abiding non-addict to supply illegal drugs. The justices' position is plausible, however...