Government Manufacture of Crime and the Entrapment Defense
| Publication year | 1993 |
| Pages | 925 |
| Citation | Vol. 05 No. 1993 Pg. 925 |
1993, May, Pg. 925. Government Manufacture of Crime And the Entrapment Defense
Whoever fights monsters should see to it that in the process he does not become a monster.
Friedrich Nietzsche
On September 24, 1987, Keith Jacobson, a fifty-six-year-old veteran and Nebraska farmer, was indicted for the crime of receiving child pornography through the mails. In the twenty-six months prior to his arrest, both the U.S. Postal and Customs Services repeatedly contacted Jacobson to explore his willingness to violate the law by mail-ordering sexually explicit photographs of children.
The government solicited Jacobson through five fictitious organizations and a bogus pen pal. Jacobson responded to various surveys and letters, but never evidenced an intent to order or possess child pornography. The federal agents' communications advertised pornographic material; however, it did not spell out that the subject matter portrayed minors. The government organizations suggested there were ulterior purposes, such as the promotion of freedom of choice and the press, and even advised Jacobson that he had the right to possess such magazines. One solicitation promised to fund lobbying efforts, aimed at eliminating regulatory legislation concerning sexual activities, with the proceeds of the proposed sales. Finally, his curiosity piqued, Jacobson placed an order. He was arrested after a controlled delivery of magazines depicting child pornography.
Claiming entrapment, Jacobson was heard by the U.S. Supreme Court in Jacobson v. United States,(fn1) where his original conviction was reversed on grounds that the government failed to prove beyond a reasonable doubt that Jacobson was predisposed to order the illegal materials prior to first being approached by federal agents.
Keith Jacobson certainly is not the first person to be subjected to government "sting" operations, although he may be among the first of the American "heartland" to fall victim to governmental seduction. Government "encouragement" of crime is a common and longstanding method of detecting and enforcing laws regulating "consensual offenses" such as liquor, narcotics, prostitution and gambling.(fn2) More celebrated stings have resulted in the prosecutions of Washington D.C. Mayor Marion Barry, John DeLorean and the ABSCAM congressmen. Moreover, as a result of the "War on Drugs," government sting operations in narcotics investigations are routinely employed.
This article explores the status of the defense of entrapment at both the federal level and under Colorado law. Focusing initially on its theoretical underpinnings, it traces the development of two opposing federal versions of entrapment doctrine: the majority approach, which focuses on the defendant's predisposition; and the minority approach, which focuses on police conduct. The article then discusses the application of the majority's approach in the Tenth Circuit and the measure of the majority's impact on Colorado's entrapment statute and case law. The authors believe that the majority approach is inconsistent with the underlying policies of entrapment doctrine and that the minority view should be reconsidered.
Historically, the role of the government in "encouraging" the commission of crimes has not been condemned. England never recognized the defense of police entrapment, but by the early 1900s, the doctrine enjoyed increasing acceptance in American courts. The U.S. Supreme Court has developed two approaches to the defense of entrapment, each involving a distinct rationale and test, and each having different procedural consequences. The Court summarizes the two related substantive elements of the emerging majority rule in Matkews v. United States(fn3): first, whether the government's agents induced or instigated the commission of the crime; and second, whether the defendant was predisposed to engage in the criminal conduct. The majority view has been labeled the "subjective test" due to its focus on the defendant's predisposition.
As to the element of inducement, a prosecution will not be barred where the government merely affords an accused the opportunity or facilities to commit the offense. Even deceit and trickery may be employed so long as the government does not implant the criminal design in the mind of the defendant.(fn4) Instead, inducement occurs where the offense is the "product of the creative activity of Government officials."(fn5) Inducement may take the form of persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship.(fn6)
For example, in a liquor sting, a police cadet who is a minor could deceive a store clerk about his identity as a police agent to obtain liquor illegally for purposes of prosecution, but could not offer false identification representing himself to be an adult. Similarly, government agents who lure defendants by "flashing" large amounts of cash,(fn7) pleas of dire financial need and threats of suicide, providing essential ingredients and drug lab glassware, and driving defendants to a drug lab under the pretense of taking them target shooting all have qualified as some evidence of inducement in narcotics stings.(fn8) On the other hand, inducement does not exist where a private citizen, not acting as a government agent, seduces the defendant into committing the offense.(fn9)
However, even if official inducement is established, the defense of entrapment is unavailable to the predisposed defendant. The dispositive element of predisposition seeks to distinguish between cases involving "a trap for the unwary innocent and the trap for the unwary criminal.(fn10) The measure of predisposition lies in the extent of the defendant's inclination to engage in the illegal activity; that is, whether he or she had the "willingness and readiness" to commit the offense charged whenever the opportunity presented itself.(fn11)
Nevertheless, the Jacobson case reaffirms that evidence merely indicating a "generic inclination to act within a broad range of conduct, not all of which is criminal," is of little probative value in establishing predisposition.(fn12) Further, the determination of predisposition must consider whether the defendant was predisposed prior to the first time he or she was approached by government officials. Predisposition must be independent, and not the product, of the initial attention directed at the defendant by the government. Thus, the fact that Jacobson had legally placed orders for sexually oriented materials prior to the investigation failed as a matter of law to prove his predisposition to purchase what had become, through the passage of new legislation, illegal child pornography. In addition, Jacobson's responses to, and increasing interest in, the proffers of federal agents could not by themselves support a finding of predisposition.(fn13)
In 1932, the U.S. Supreme Court first established the theoretical basis for the majority view of the entrapment defense in Sorrells v. United States,(fn14) thereby influencing its scope and development in the coming decades. The Sorrells majority, evidencing a concern with the source of its power to decide the case, formulated the substantive basis for the defense by reasoning that entrapment derives from Congress' legislative intent. Where the defendant is "entrapped," there can be no criminal culpability because it could not have been the
intention of Congress that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of a person otherwise innocent in order to lure them to its commission and punish them.(fn15)
The concern that law enforcement tactics not induce the "innocent" to commit crimes later emerged as the dispositive element of predisposition in the two-part test. Thus, once the fact-finder determines the defendant to have been predisposed, no inquiry need be made into the inducements offered. Despite the majority's policy concerns with "abuse" by government agents, its preoccupation with the defendant's predisposition altogether ignored any normative evaluation of the actions of the government. This alternative concern formed the basis for a competing minority rule.
The minority approach to entrapment grew out of the concurring opinion of Justice Roberts in Sorrells and was further developed by Justice Frankfurter in his concurrence in Sherman v. United States.(fn16) Consistent with the policy goals of curbing abusive police tactics, the minority view evaluated government conduct and inducements in a particular case against fundamental standards delineating the proper use of governmental power. This focus
shifts attention from the particular defendant to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.(fn17)
Application of the objective test would consider solely the inducements offered by the government, asking whether they create a risk that an otherwise innocent person, who normally "avoids crime and through self-struggle resists ordinary temptations, will respond to them by committing an offense."(fn18) The drafters of the Model Penal Code, joining a majority of commentators in support of the minority rule, gave a modern expression to this view. Under the Model Code,(fn19) the sole issue is whether the government may...
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