Clarifying entrapment.

• Author: Allen, Ronald J.

1. INTRODUCTION

   The edges of the criminal law in the United States (and elsewhere, but we concentrate on the United States in this paper) are partially formed by various defenses that reflect in large part the frailty of human nature. The commands to forgo violence will not constrain a person at risk of his own existence, nor when loved ones are threatened, and some believe that it is fight that they not attempt to do so. Mandates to respect the inviolability of personal property will not avail when bodily integrity is at stake, nor should they in the face of peril. And so on. These defenses recognize that virtually anyone can be induced to commit an otherwise illegal act when the ratio of potential benefit to potential harm (expected return, in the language of micro-economics) is high enough. So, too, with entrapment. Entrapment merely completes the picture of human motivation by including financial and emotional issues within the set of motivations that can lead to exculpation. At its deepest level, entrapment, like many other criminal defenses, thus simply recognizes that, as situations become increasingly skewed from the conventional, they become increasingly inadequate justifications for, and less accurate predictors of the utility of, criminal sanctions.

   Yet, unlike most other criminal defenses, controversy over the very nature of entrapment continues unabated. As is well known, in a series of cases the Supreme Court created the defense. Perhaps the circumstances of its creation contributed to the confused state of the law today. When the Supreme Court in Sorrells v. United States(1) first recognized entrapment as a defense in federal criminal law, it struggled to find the authority to do so. As Sorrells was decided in 1932, one might have expected the Court to have found its authority in substantive due process. But the right to the entrapment defense, unlike the right to contract, was hardly a tradition in Anglo-American jurisprudence. Instead, the Court concluded that Congress in enacting the law in question did not intend for it to apply to the entrapped.(2) The concurring opinion of Justice Roberts argued that the defense should have been based on the supervisory powers of the court.(3) Both Sorrells' opinions assumed that entrapment was serf-explanatory and that it was wrong. Both failed to clearly delineate the contours of the defense, probably because the only issue in Sorrells was the Court's authority to permit the defense in the absence of a legislative or constitutional directive.(4)

   The two tests in current use, born together in Sorrells, are generally called the objective and the subjective tests (although neither is inherently more objective--or subjective--than the other). Both formulations require that the crime be induced, or encouraged, by government agents. The subjective test asks, "Was the defendant predisposed to commit the crime when he was approached by the government agent," while the objective test asks, "Did the government's encouragement of crime exceed acceptable limits?" The subjective test, the test advanced by the Sorrells majority, has prevailed in federal criminal law; many states have adopted some version of the objective test.(5) Controversy persists over many issues, in particular the relative advantages of the two tests, their respective meaning, and subsidiary issues, in particular why entrapment does not extend to entrapment by a private party.(6)

   The controversy over entrapment has attracted much scholarly attention, and our collective understanding of the various issues has much advanced as a result. Of the many excellent analyses, three stand out as particularly penetrating: the articles by Professors Carlton and Park previously cited, and that of Professor Seidman.(7) We build on those works, a general knowledge of which is assumed here, in an effort to clarify the nature of entrapment. We make the following points:

   1. The controversy over the two versions of the test-the subjective and objective-is quite beside the point, because the two tests will virtually never lead to different results;

   2. More than just beside the point, the controversy presupposes the existence of a fictional entity--predisposition. Because a necessary ingredient of the subjective version of the test does not exist, the test, rather plainly, cannot be applied in any way that allows useful propositions to be asserted about the existence of predisposition, except to assert its nonexistence. Because predisposition does not exist, no one is ever, under any circumstances, "predisposed" to commit the crime; or alternatively, everyone, under every conceivable circumstance, is predisposed to commit the crime. Such is the consequence of using false propositions in one's analysis, and in any event, the point is that "predisposition" cannot sort anyone from anyone else, and thus is useless as a tool designed for just that purpose.

   3. Something does usefully sort out individuals-whether they responded to real world, market level inducements.

   4. The emphasis on market level inducements as the key to entrapment further clarifies whether entrapment should extend to private entrapment behavior--it should.

   5. The market level inducements argument explains the cases, perhaps simply contingently so, but it explains them nonetheless.

   We develop these five points in turn.

2. THE NONEXISTENT PRACTICAL DISTINCTION BETWEEN THE SUBJECTIVE AND OBJECTIVE TESTS FOR ENTRAPMENT

   If there were such a thing as "predisposition," the two current tests for entrapment theoretically could reach different results. A "non-predisposed" individual could accept an inducement insufficient under the objective test. Alternatively, the police could direct a scheme violative of the objective test against a person already predisposed. Professor Seidman has argued that these theoretical possibilities are quite unlikely ever to materialize. He is fight, but we wish to make two corrections to his analysis:

   First, Professor Seidman asserts that:

   [S]o long as one equates "predisposition" with a readiness to commit crime, no definition of "predisposition" can be complete without an articulation of the level of inducement to which a "predisposed" defendant would respond. Furthermore, the "predisposed" cannot be distinguished from the "nondisposed" without focusing on the propriety of the government's conduct--the very factor that the subjective approach professes to ignore. This is true became a defendant who responds favorably to a "proper" inducement has thereby conclusively demonstrated that he is disposed to crime when such an inducement is offered. It would seem, then, that so long as government agents restrict themselves to "proper" inducements, they run no risk of violating the entrapment rules.(8) The error here is in the implicit assertion that the level of inducement is the only possible evidence of "predisposition." If such a thing exists,, there is no reason to believe that other forms of evidence, such as statements of the defendant and so on, may not exist to establish it, or its absence. The situation clearly is relevant to inferring mental states, but it is not, as Professor Seidman argues, "conclusive."

   Second, Professor Seidman asserts that:

   [T]he objective test in theory avoids analysis of the defendant's predisposition and focuses, instead, exclusively on the propriety of the inducement. That question, in turn, is determined by the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime. But plainly that likelihood depends in large measure on the group to whom the inducement is targeted. So long as the police direct their attention toward only those likely to be predisposed, the risk of entrapment, objectively considered, is small, and the inducement is, therefore, presumably permissible. Thus, in most cases, both the objective and subjective approaches would permit an inducement, so long as the defendant is predisposed. The two approaches would reach different results only in the rare case where the police reasonably, but incorrectly, believe the defendant to be predisposed at the time the inducement is offered.(9) That inducement and predisposition are related is correct, but, again assuming there is such a thing as predisposition, this argument does not quite capture their relationship. The central issue of the objective test is the appropriateness of the level of inducement, not to whom it is directed. Professor Seidman's argument is equivalent to the argument that excessive force can be used to coerce a truthful confession from a guilty suspect, as there is no risk that a wrongful conviction will result. In both cases, the activity of the police is independent of the state of the defendant, even if predictions as to how people in general would react to specific levels of inducement determines in part the appropriateness of inducements.(10)

   Professor Seidman's arguments thus do not quite establish the practical insignificance of the distinction between the two tests, but another consideration does, one that captures the pragmatic relationship between levels of inducement and "predisposition." In all cases, a third party fact finder--judge or jury--will be determining predisposition and appropriateness of inducements. The obvious measure of the appropriateness of inducements is how "innocent, nonpredisposed" individuals would behave. What is shocking about over-the-top police behavior is its capacity to induce "innocent" people to commit illegal acts, but "innocent" must in turn refer to the person's predisposition to commit those acts. But, the fact finder will have no direct access to the individual's actual predisposition, and thus can largely only speculate how a reasonable person (which probably will reduce largely to the fact finder herself) would behave. The epistemological setting is thus that typically the most cogent test of the appropriateness of...