5.4.2 The Entrapment Context

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

5.4.2 The Entrapment Context

Criminal defendants may attempt to raise due process claims in circumstances of purported government overreaching that resemble entrapment. Defendants typically argue that government agents are manufacturing a crime and that charges should be dropped regardless of any predisposition on their part to commit the crime.⁵³

The Supreme Court has raised the possibility of a due process violation in the entrapment context, but it has never found a case in which such a holding was necessary. In essence, the Court has said that it is possible that government conduct could be so "outrageous" that due process principles would absolutely bar a prosecution, apart from the entrapment doctrine.⁵⁴

The due process application in this setting is controversial.⁵⁵ Because the Supreme Court has never applied the outrageous conduct due process doctrine, some judges believe that due process may not be applied here.⁵⁶ Most courts, though, recognize that the constitutional claim exists.⁵⁷ The leading federal case involved a government agent who was fully running a drug laboratory. The court condemned the investigative operation and struck down the defendant's conviction on the due process ground:

Unlike other cases rejecting this defense, the police investigation here was not concerned with an existing laboratory, the illicit plan did not originate with the criminal defendants, and neither of the defendants were chemists—an indispensable requisite to this criminal enterprise. . . .
[The agents] set him up, encouraged him, provided the essential supplies and technical expertise. . . . This egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own affairs. Fundamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fomented by them will be barred.⁵⁸

Few federal courts, however, have been willing to go so far.⁵⁹ Defendants have been more successful in making the due process argument in state courts, as some state judges view their own constitutions as providing more due process protection than the federal Constitution. The guiding consideration in these cases is that the government cannot create a criminal endeavor at the expense of its citizens.⁶⁰ As written by one New York court:

Defendant did not seek out the officers to sell drugs to them and the meager evidence that defendant may have been involved in the prior sale to the officers of powdered sugar rather than cocaine hardly supports a finding of "ongoing criminal activity." More importantly, the officers engaged in "criminal or improper conduct repugnant to a

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