Due fiocess: Objective Entrapment's Trojan Horse
| Author | by Captain Robert L. Gallaway |
| Pages | 02 |
Persons accused of crimes sometimes defend at trial by saying that they were trapped by actions of government agents. The courts have split between two tests for entrapment. In the subjective test, the defense will succeed only if it can be shown that the accused was not predisposed to commit a criminal act before government agents interuened. The objective test, more favorable to the defense, ignores the subjectwe predzsposition of the accused, focusing exclusively on the goumment's actions.
The subjective test is prescribed by paragraph E16e of the Manual for Courts-Madial, Unzted States, 1969 (Revised edition). Captain Gallaway swgests that this m y be objectionable on grounds of dental of due process, at least in cases tn which the conduet of the government ia outrageous, if not in all eases. He recomncsnds that defense counsel follow this line of attack in appropriate caaes. I. INTRODUCTION
One of the oldest and most Consistent divisions within the United States Supreme Court is in the field of entrapment. In every case concerning this isme since the 1932 decision in Smells v. United States,' the Court has been bitterly split between the proponents of the subjective and the objective theories of entrapment. Over the years the split within the Court wa fairly consistent, with the subjective theory commanding a
'The pinions md eonelusions presented in this article me those of the author and do not neeeaaanly represent the news of The Judge Advocate General's School, the Depanrnent of the Army. or any other governmental agency.
**J.A.G.C , U.S Army Defense Appellate Attorney, U.S. Army Legal Senices Agency. B.A., 1972, University af Califomla, Dana,
Califorma; J.D., 1075, Hastmgs College Of the Law. rniversity of Cnlffoda. Sa" Francisco, California. Member of the Bars of Cahfomia, Iowa, the Umted States Court of Mditary Appeals, and the United States Amy Court of Review.
'287 U.S. 435 (1932).
majority. At least that was the situation until the Court decided the case of Hampton u. Cnited Stales' in 1976. The fragmented decision in that case has given rise to speculation that a majority of the Court, through the due process guarantees of the United States Constitution, is now willing to give recognition to the objecthe theory of entrapment as a legitimate bar to prosecution.'
This article highlights the reasoning underlfmg B line of eases which suggests that, regardless of the subjective predisposition of an accused, objective entrapment may violate constitutional guarantees of due process.
11. THE DEVELOPMENT OF THE ENTRAPMENT DEFENSE IN THE UNITED STATES SUPREME
COURT
As noted above, the Supreme Court has dealt Njth and split over the issue of entrapment many times. The furst major division occurred in Sowells 0 Cnited States,' in ushich the Court reversed the defendant's conviction but disagreed as to its reasoning for doing so. In that case, the defendant was convicted ofpossessing and sellingshiskeyin,,iolation of the National Prohibition Act."
The offense occurred after a federal agent, posing as a furniture dealer, came to the defendant's town in 1930. He was introduced to the defendant as a veteran of the World War, who had served with him in the 30th Diviion. The agent asked the defendant to ~eeurefar him one half gallon of whiskey, but the latter refused, stating that he did not "fool around" with liquor. The two continued to talk about their war expenences and, during the next hour and a half, the agent asked the defendant for whiakey fow or five more times. Finally, the defendant left and returned with the requested whiskey.8
426 U.S. 484 (19761.
Military defense ~oun~elshould be amre of this possible defense, and should
be alert LO opportunities to use it to their eiienti' benefit.
* h'ote 1. sup.
Pub. L. No. 66. ch. 85, 41 Stat 305 (1919)
A majority of the Supreme Court held that the defendant was en- trapped into committing the offense. They reasoned that, in enacting the criminal statute at issue, Congress could not have intended to punish persons, othenviae innocent, who were lured into committing the proscribed conduct by governmental instigation.' The majority focused on whether the defendant was "otheruise innocent" and adopted the "subjective" or "origin of the intent" test in resolving the question of entrapment.8 Under that test, innocence is established only if (1) govern-mental instigation and inducement oversteps the bounds of permissibility, and (2) the defendant does not harbor any pre-existing criminal intent. Since these questions directly concerned the issue of guilt or innocence, they were deemed to be one8 for the jury to determine.'
Justice Roberts u-rate a concuning opinion in which Justices Brandeis and Stone joined. Justice Roberts argued that the purpose of the en-trapment defense should be to deter police misconduct." Therefore, any predisposition of the defendant is irrelevant. He based hi8 reasoning on two points. First, the admission of evidence of predisposition would permit proof of guilt by past conduct, mmor, and matters not related to the charged offense. Thus, argued Justice Roberts, an accused could be con-victed of a crime because he may have committed other crimes, not because of evidence of his commission of the charged offense."
Second, as a matter of public policy, the cows should not be party to police tactic8 designed to instigate crime. Under the view of Justice Roberts and the two justices who joined uith him, the only issue was the level of police misconduct, and any predisposition of the defendant wBB irrelevant.'2
The continued division over the entrapment issue was highlighted 26years later in a 1958 decision of the Court, Sherman w. L'nited States.'3 Sherman was convicted of sale of narcotics. The record indicated that the government informer met the accused in a doctais office where they
'287 U.S.at 448.
I/ 287 U.S. af 451
lo 287 U S at 467.
1' 287 U.S.at 459.
Id
MILITARY LAM' REVIEW IVOL. 88
were both undergoing treatment for narcotics addiction. They accidentally met again on numemu8 occasions and began talking about their problems. Finally, the informer asked the accused where he could get some narcotics, ciaiming he was not responding to the treatment. At fist the accused tried to avoid the issue; only after numerous requests predicated on the informer's presumed suffering did he agree to secure the drugs. The accused thereaffer purchased drugs, sharing ulth the informant both their cost and their use. After several such transactions, the informer advised the Bureau of Narcotics that he had a seller for them. Three additional observed sales served as the basis for the charged offenses.)'
Although splitting as to the reasons, all nine of the justices agreed that entrapment existed in the case, as a matter of law. In a five to four split, the Court continued its disagreement concerning the theoretical basis of the defense. The majority again refused to accept Justice Roberts' "abjeetive"theory. ChiefJustice Warren, ~ t i n g f o r himselfand fourothers, opined that entrapment occurs only u,hen the criminal conduct is the product of the creative activity of law enforcement officials, noting that "a line must be dram between the trap for the u n w q innocent and the trap for the unwary criminai.""
In a concuning opinion joined by Justices Douglas, Harlan, and Bren-"an, Justice Frankfurter argued for the adoption of Justice Roberts' objective theory. This position was partly based on the policy position that the courts and the government should not become involved in intolerable police Additionally, it was noted that the concern for equal justice demanded two considerations: fwst, the permissible standard af police conduct shauid not vary aeearding to the perceived reputation or character of the suspect, and, second, in light of the highly prejudicial nature of evidence admitted on the issue of predisposition, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition."
Justice Frankfurter advanced a set of factors which should be considered in applying the objective theory, and which have been repeatedly
I* 356 U.S. at 311 "356 U.S.at 372.
la 365 U S. at 380
I' 356 U.S.sf 382-83
19801 DUE PROCESS
noted by courts and commentators advocating his position. Justice Frank-huter's analysis is so important to the development of the federal law of entrapment that it is set forth below, despite its length
Appeals to sympathy, friendship, the possibility of exorbitant gain, and 80 forth, can no more be tolerated when directed against a past offender than against an ordinary law-abiding citizen. A contrary view runs afoul of fundamental principles of equality of law, and would espouse the nation that when dealing with the criminal classes anything goes. The possibility that no matter what his past crimes and general disposition the defendant might not have committed the particular crime unless confronted with inordinate inducements, must not be ignored. Past crimes do not forever outlaw the criminal and open him to police practices, aimed at securing his repeated conviction, from which the ordinary citizen is protected. The whole ameliorative hopes of modern penology and prison administration strongly counsel against such a view.
This does not mean that the police may not act so as to detectthose engaged in criminal conduct and ready and willing to cammit further crimes should the occasion arise. Such indeed is theirobligation. It does mean that in hoiding out inducements theyshould act in such a manner as Is likely to induce to the commission of crime only these persons and not others who wouldnormally avoid crime and through self-struggle resist ordinary temptations. This test shifts attention from the record and predisposition of the particular defendant to the conduct of thepolice and the likelihood, objectively considered, that it wouldentrap only...
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