§ 27.05 ENTRAPMENT: DUE PROCESS

• Jurisdiction: United States

§ 27.05. Entrapment: Due Process⁵⁰

In jurisdictions that apply the subjective standard of entrapment, no government inducements or threats, no matter how egregious, constitute entrapment if the "victim" of the police conduct was predisposed to commit the type of offense charged. But, could it be that, at some point, entrapment-like conduct, if outrageous enough, violates the Constitution and, therefore, serves as an alternative basis to bar prosecution even of a predisposed individual? As far as Supreme Court case law is concerned, the answer to the question is "perhaps." A survey of lower court opinions suggests that the answer is "theoretically yes, but virtually never."

In United States v. Russell,⁵¹ R was convicted of the illegal manufacture of amphetamines after federal undercover agents furnished him with a difficult-to-obtain legal chemical necessary in the production of the narcotics. Because R was predisposed to commit the crime, an entrapment defense did not successfully lie. R argued, however, that the police violated the Due Process Clause by supplying him with the chemical and by becoming "enmeshed in the criminal activity."

In an opinion for five justices, Justice Rehnquist stated that "[w]hile we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction . . . the instant case is distinctly not of that breed." Due process was not violated here, the majority concluded, because the chemical that the government furnished was lawful, harmless in itself, and not unobtainable elsewhere. As such, the government was not unduly enmeshed in the criminal activity.

Three years later, in Hampton v. United States,⁵² some members of the Court rethought their position. In Hampton, an undercover agent arranged for H to sell heroin to another undercover agent. In short, the government was involved in "[t]he beginning and the end of [the] crime." Justice Rehnquist, this time speaking only for himself, Chief Justice Burger, and Justice White, backed off from his earlier due process remarks in Russell. He conceded that the government played a much more significant role in the crime in the present case. Nonetheless, Justice Rehnquist stated that the Due Process Clause "comes into play only when the Government activity in question violates some protected right of the defendant," which does not...