"In a puff of smoke": drug crime and the perils of subjective entrapment.

• Author: Costinett, Andrew H.

Circumstances often force the government to resort to deception in order to root out criminal behavior. A common example of government deception is the use of undercover sting operations: government officials participate in illegal transactions in order to "bait" criminals into committing offenses that otherwise may have gone undetected. (1) In such cases, there is a risk that government officials will go too far, coercing individuals to commit crimes they would not otherwise commit. The doctrine of entrapment addresses this risk by providing a defense when official action leads innocent individuals to engage in criminal activity.

There are two variations of the defense. (2) The objective approach focuses on the actions of the police and grants a defense where police action creates the probability that a crime will be committed by someone who would not otherwise have engaged in it. (3) The subjective approach considers this risk but adds a second element: whether the defendant was "predisposed" to commit the crime charged. (4) This approach essentially asks if the individual's character is such that one could expect him to commit the crime absent government intervention. The subjective approach is the majority approach and is used in the federal courts and in most states, while the objective approach is preferred within academic circles and is used in a minority of states. (5)

While there has been considerable debate over which approach makes for better policy, (6) and recent scholars have addressed the relationship between entrapment doctrine and counterterrorism operations, (7) no one has examined how each approach fits with the practical realities of street crime. This Note undertakes such an examination within the specific context of drug-related street crime, evaluating whether the theoretical assumptions of both approaches are tenable given the realities of drug use and street-level distribution. This Note will argue that the dominant subjective defense has serious flaws when used in drug crime cases and that the objective defense provides a more appropriate method of addressing entrapment defense claims.

Part I provides a background of the development of the entrapment defense, and discusses differences between the subjective and objective approaches. Part II examines how certain types of evidence used to show "predisposition"--particularly the prior criminal record of the defendant--introduce prejudice against the defendant's case. Part III examines assumptions about volition inherent in the subjective approach and demonstrates how specific concerns present in drug cases make these assumptions inappropriate. Specifically, this Part assesses research on the cognitive psychology of addiction and volitional disorders to show how the subjective approach assumes a level of volition that many drug defendants cannot meet. Part IV addresses the individual nature of the subjective approach and asserts that its individualized focus fails to give sufficient guidance to law enforcement agents in designing undercover operations. Part V advocates for the use of the objective test articulated in the Model Penal Code and discusses how this approach avoids the problems presented by the subjective approach. This Part also notes the objective approach's additional advantages of limiting police discretion and preventing harassment and discrimination.

1. A BACKGROUND OF THE ENTRAPMENT DEFENSE

   Although the entrapment defense is often associated with the biblical story of Eve's admission in the Garden of Eden: "The serpent beguiled me, and I did eat," (8) the entrapment defense itself is a recent, and distinctly American, innovation. (9) The defense emerged in the late nineteenth and early twentieth centuries, largely in response to changes in the criminal law and methods of policing. (10) This Part provides an overview of the entrapment defense's development to give the foundation needed to properly analyze the subjective and objective approaches. Section A provides a general history of entrapment, discussing its emergence, practical considerations driving the recognition of the defense, and relevant case law. Section B then proceeds to a discussion of the objective and subjective defenses and notes the procedural and substantive differences between the two approaches.

   1. History of the Entrapment Defense

      The traditional common law did not contain an entrapment defense. One court asserted that a claim of inducement to crime "has never since availed to shield crime or give indemnity to the culprit, and it is safe to say ... it never will." (11) It was not until the late nineteenth century that the defense emerged in state courts, and it would take another forty years before a federal court recognized entrapment. (12)

      The defense took hold at the beginning of the twentieth century in response to changes in the scope of the criminal law. (13) At that time, criminal liability expanded to cover certain forbidden economic transactions, often termed "victimless crimes." (14) These new crimes created two novel problems for law enforcement: the commercial nature of these crimes made group criminality more prevalent (leading to the advent of the conspiracy doctrine) and the lack of an injured party meant that crimes of this type were unlikely to be reported. (15) This created a need for deceptive practices which would allow officers to infiltrate these criminal networks and discover offenses. (16)

      During this period, the nature of policing itself changed as well. At the close of the nineteenth century, law enforcement was primarily a local endeavor, with officers appointed by local political bosses. (17) Reformers, dissatisfied with this system's ineffectiveness, pushed for significant changes in law enforcement, including increased State control of police forces and the training of a professional police force. (18) Federal control over crime also increased, with emerging federal law enforcement agencies such as the Secret Service and the Federal Bureau of Investigation tasked with enforcing an expanding federal criminal law. (19) New federal statutes created a wide variety of new offenses, including mail fraud, seditious speech, prohibition, and violations of income tax provisions. (20)

      The expansion of criminal liability to reach "group" criminality, coupled with the creation of a specialized police force, resulted in the increased use of sting tactics by law enforcement. (21) Greater state and federal criminal enforcement led to increased cooperation among local, state, and federal officials. (22) As a result, law enforcement officials were able to design intricate schemes for infiltrating criminal networks. (23) Attempts to enforce prohibition led to some of the boldest schemes, including the importation of alcohol from Canada by federal officials for resale, and the establishment of a "speakeasy" operated by federal agents. (24) The prevalence of these tactics created a perceived need for restraints upon overzealous officers and led to the judicial acceptance of the entrapment defense. (25)

      The Supreme Court first recognized the entrapment defense in a case involving prohibition. (26) In Sorrells v. United States, the defendant was indicted for the unlawful possession and sale of whiskey. (27) At the time of his offense, Sorrells was visited at home by three acquaintances and an undercover federal agent. (28) The agent twice asked Sorrells for some liquor but was rebuffed both times, with Sorrells informing his guest that he "did not fool with whisky." (29) The agent then began sharing war stories with Sorrells, a World War I veteran. The agent once again asked for liquor, and Sorrells retrieved a half-gallon of whiskey, which was sold to the agent for five dollars. (30)

      At trial, other witnesses noted that the agent was the only person inquiring about liquor. (31) Despite the lack of "evidence that the defendant had ever possessed or sold any intoxicating liquor prior to [this] transaction," (32) both the trial and appellate courts denied his entrapment claim, and Sorrells was convicted. (33) The Supreme Court unanimously found that Sorrells had been a victim of entrapment and reversed his conviction. (34) However, the Court was split on the underlying rationale for the defense, which led to the articulation of two different approaches. (35)

      The majority, led by Chief Justice Hughes, viewed entrapment as a way to protect innocent defendants from being convicted for crimes they would not have committed without government intervention. (36) In Hughes's opinion, the defense was created as a matter of statutory interpretation: Congress could not have intended to enforce criminal laws against innocent citizens who were lured into criminality by government officials. (37) Under this rationale, courts evaluating a defendant's claim of entrapment analyze the characteristics of the particular defendant to determine whether the crime would have occurred without the government's intervention. (38) Where the defendant is "a person otherwise innocent" tried for a crime conceived by government officials, punishment is inappropriate and the defense is available. (39) However, where the defendant's own "conduct and predisposition" indicate that he would have committed the offense even without government intervention, the entrapment defense is unavailable. (40) Because of the focus on the characteristics of the defendant, this approach to entrapment analysis is termed "subjective." (41)

      Justice Roberts's concurrence--joined by Justices Brandeis and Stone--found the basis for the entrapment claim to rest solely upon the officers' conduct. (42) In this view, a defense is available when law enforcement use tactics which are "so revolting" they "ought not to be permitted by any self respecting tribunal." (43) The defense thus emerged as an outgrowth of the court's supervisory powers over judicial proceedings. (44) Where misconduct...