Now in our second decade after 9/11, we are firmly in the prevention era of law enforcement. Faced with the unacceptable consequences of identifying threats too late, government agents are moving aggressively to identify potential terrorists before they strike. Undercover agents and confidential informants necessarily play a large role in such efforts. As a result of such operations, we have seen a number of cases brought to trial in the federal courts in which defendants have asserted the entrapment defense. To date, the defense has not succeeded. However, as a consequence of these cases, the United States Supreme Court may be required to reconsider the defense for the first time in over twenty years. Thus, now is a good time to re-examine the entrapment defense that the Supreme Court first recognized eighty years ago. This Article argues that the federal entrapment defense represents a doctrinal anomaly that straddles the line between criminal procedure and criminal substance. Understanding how and why the entrapment defense evolved as it did may engender greater sympathy for this much-maligned corner of the criminal law. It could also lead to reforms in the way the defense is administered that would better serve the interests that animate the defense--some sounding in the traditional concerns of substantive criminal law (culpability and dangerousness) and others in the traditional concerns of criminal procedure (deterring overzealous and unwarranted intrusions by government agents).
Table of Contents INTRODUCTION I. THE EVOLUTION OF THE ENTRAPMENT DEFENSE A. Beginnings B. Sorrells: The Supreme Court Recognizes the Defense C. Sherman: The Court Reaffirms Sorrells ' Doctrinal Framework D. Why Didn 't the Court Treat Entrapment as a Procedural and Evidence Law Question? 1. The Exclusionary Rule Prior to 1932 2. The Exclusionary Rule from 1932 to 1958 (Sorrells to Sherman) II. ENTRAPMENT AND THE EXCLUSIONARY RULE IN THE 1960S, 1970S, AND 1980S A. The 1960s: The Missing Decade for Entrapment; The Decade of the Exclusionary Rule B. The 1970s: The Exclusionary Rule in Retreat; Retrenchment in Entrapment Doctrine 1. Developments in the Exclusionary Rule 2. Developments in Entrapment C. The 1980s: The Court Again Reaffirms the Sorrells Sherman Framework for Entrapment and Expands the Exceptions to the Exclusionary Rule D. Concluding Observations III. THE 1990S TO THE PRESENT: DEVELOPMENTS IN ENTRAPMENT IV. SEMI-PROCEDURALIZING ENTRAPMENT CONCLUSION I do believe that on the present course, there will come a tipping point ... such that al Qaeda as we know it ... has been effectively destroyed. At that point, we must be able to say to ourselves that our efforts should no longer be considered an "armed conflict" against al Qaeda and its associated forces; rather a counterterrorism effort against individuals ... for which the law enforcement and intelligence resources of our government are principally responsible ...
There isn't a business of terrorism in the United States .... You're not going to be able to go to a street comer and find someone who's already blown something up.... [T]he ... goal is not to find somebody who's already engaged in terrorism but find somebody who would jump at the opportunity if a real terrorist showed up in town. (2)
In the post-9/11 world, government agents are under tremendous pressure to find terrorists before they strike. The consequences of allowing terrorists to succeed are simply unacceptable. As part of a comprehensive prevention strategy, (3) law enforcement agents have devoted considerable resources to undercover operations aimed at identifying potential terrorists. Although undercover operations have long comprised an important part of law enforcement agents' toolkit, post 9/11, the goals and methods of such undercover operations--as applied in the anti-terrorism context--have appreciably shifted. Instead of seeking solely to identify individuals who are actively engaged in criminal conduct, now agents also have deliberately sought to identify individuals who might be willing to aid acts of terrorism, even if they are not currently involved in such activities. As one former F.B.I. agent told the New York Times, "[p]rior to 9/11 it would [have been] very unusual for the F.B.I. to present a crime opportunity that wasn't in the scope of the activities that a person was already involved in ...," (4) Suspects would be solicited to commit crimes of the same type that they were already suspected of having committed. (5) But in the new world order, as one former terrorism prosecutor recounted, the "goal ... is not 'to find somebody who's already engaged in terrorism but find somebody who would jump at the opportunity if a real terrorist showed up in town.'" (6) The notion, in effect, is that law enforcement and the real terrorists are competing to find those who would be willing to join the terrorist cause. If government agents find those individuals first, they will be unavailable to assist the real terrorists.
Simply being willing to commit a crime, however, traditionally is not a sufficient basis upon which to impose criminal liability. Generally speaking, our criminal laws require an act accompanied by a guilty mind. (7) Our laws prohibiting criminal attempts and criminal conspiracies move up the point in time at which criminal liability will attach, on the theory that the attempt--usually defined as taking a substantial step toward commission of the underlying crime (8)--or the agreement to commit the crime (9) satisfy the act requirement. If accompanied by the requisite culpable mental state, or mens rea, the attempt or agreement suffices. The very purpose of recognizing such inchoate offenses is to permit law enforcement to intervene earlier, without risking the social harm that would result from allowing the criminal plan to proceed further. (10) But what if the attempt or conspiracy is the product of a law enforcement sting? Does the involvement of law enforcement agents provide a defense? The answer that American criminal law has settled on, over the past eighty-plus years, generally is "no." Undercover operations are recognized as permissible and often necessary tools of law enforcement, and the fact that undercover government agents were involved in the offense is not per se a bar to conviction for a criminal caught in the sting. However, American law has carved out a limited defense, entrapment, whereby the involvement of government agents will provide a basis for an acquittal.
The entrapment doctrine, as applied in federal court and in most states, involves two elements--inducement and predisposition. The defendant bears the burden of persuasion as to the first element. (11) Thus, a defendant asserting entrapment must show that he or she was induced to commit the offense by an (undercover) (12) government agent. (13) If inducement has been shown, the burden shifts to the government to show that the defendant nevertheless was "predisposed" to commit the offense. (14) In other words, if the government can establish that the defendant was predisposed to commit similar offenses before being induced by a government agent to commit the offense charged in the particular case, the entrapment defense fails. Like other defenses, entrapment is categorized as a matter of substantive criminal law and is submitted to juries for decision. (15)
Perhaps not surprisingly, as law enforcement agents have devoted more resources to undercover terrorism investigations, we have seen some notable assertions of the entrapment defense, (16) albeit as a defense of last resort. (17) This is also true in cases involving child enticement over the Internet, (18) another law enforcement priority of recent years, (19) in the pursuit of which savvy law enforcement agents have leveraged their ability to catch would-be child sex abusers by posing as underage victims online. In both contexts, it is critically important that our criminal justice system sort those who likely would engage in such crimes absent the intervention of law enforcement agents from those who would not. Absent appropriate sorting, we waste scarce resources investigating, trying and potentially confining those who do not present a real threat. (20) We also run a significant risk of undermining the public's respect for the criminal justice system, (21) with a particular risk of alienating communities whose ongoing cooperation with law enforcement is critical. (22) Moreover, given the types of statutes typically used in the anticipatory prosecution of terrorism, (23) which are among the most inchoate of offenses to begin with, (24) if we fail to take seriously the need to engage in this sorting, then our criminal justice system runs the risk of unacceptably bleeding into a system of preventive detention. (25) Ideally, law enforcement agencies, working in tandem with prosecutors, would do this sorting ex ante, before commencing or continuing an investigation or, at the very latest, before commencing a prosecution--and there are strong institutional incentives for agents and prosecutors to do so. (26) But such incentives are not perfect. (27)
Because the entrapment defense is the primary mechanism that the judicial system has developed for policing undercover...