The political economy of entrapment.

• Author: McAdams, Richard H.

INTRODUCTION

By the time she was eighteen, Amy Lively was drinking heavily. (1) At age twenty-one, after two detoxification programs and in the midst of a divorce, she was emotionally distraught and attempted suicide. (2) Weeks later, while attending an Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meeting, she met a man, Koby Desai.(3) Lively found Desai "supportive and responsive to her emotional needs" (4) and later moved into his apartment. (5) Desai asked her to sell cocaine to a "friend" (6) and, on two occasions, she did. Unbeknownst to Lively, Desai was a confidential police informant and the man to whom she sold cocaine was one of his supervising officers. Desai had not targeted Lively for this operation based on any prior suspicion of her--she had no criminal record--nor had he suspected anyone at the AA/NA meeting he attended. As a court would later describe it, he was there with police approval "trolling for targets." (7) Though Desai at some point proposed marriage, (8) the relationship soured when, as planned, police arrested Lively and he testified against her. Lively was convicted of cocaine delivery and sentenced to prison. The Washington Supreme Court upheld the jury's decision to reject her claim of entrapment. (9)

The entrapment defense is the principal means by which state and federal courts regulate the government's use of undercover operations. Where it applies, the defense exempts from criminal liability individuals who were encouraged by an agent of the government to commit what would otherwise be an offense. There are different formulations of the defense, but the most common "subjective" test inquires whether the defendant is "predisposed" to commit the charged offense. (10) Lively sought to disprove predisposition by testifying that Desai raised the subject of selling cocaine only after their relationship was serious and that he pestered her about it repeatedly every day for two weeks. (11) The Lively court sustained the jury's decision to reject the defense because there was contrary evidence showing predisposition: Desai testified that she first proposed the transaction and that he did not need to pester her about it. (12) Thus, it was a jury question. (13)

No doubt, some readers react to these facts with outrage, seeing a sting operation run amok, one presenting a strong case for judicial intervention. Many criminal law scholars would cite Lively as yet another reason to favor the so-called "objective" test of entrapment that a few jurisdictions use. (14) Because that formulation focuses only on the nature of the police tactic and not on the defendant's predisposition, Lively would probably have won such a defense. Yet, in this article, I hope to do more than compare the merits of one entrapment formulation to another. Until we know why we should regulate these operations at all, we cannot hope to know what doctrinal test is best.

Indeed, not everyone agrees that we should have any entrapment defense. Almost twenty-five years ago, in one of the most penetrating analyses of the doctrine, Michael Seidman declared that no judicial opinion or commentator had provided a satisfactory justification for the defense. (15) Seidman contended that the doctrine lacks any normative basis and is, indeed, incoherent except as a class privilege for those affluent enough to avoid most criminal temptations. (16) Illustrating the doctrine's apparent incoherence, Seidman noted that some commentators condemn the government for randomly selecting undercover targets while others condemn the government for just the opposite: the deliberate, non-random selection of targets. (17) More recently, Paul Robinson and John Darley questioned the defense, finding in their empirical work that the public would prefer to use entrapment as a mitigation rather than a defense. (18) In this article, I take these objections seriously and seek to determine whether one can answer these critics by identifying an analytically sound rationale for regulating undercover operations.

The controversy over entrapment is more important today than ever. First, the United States exports the tactic of undercover operations and the idea that judges should regulate them. When Seidman wrote, he cast doubt on the doctrine by noting that "the rest of civilized world manages to survive quite well without an entrapment defense." (19) True enough, but twenty-five years ago, most liberal democracies were so skeptical of undercover operations--particularly the idea that police may commit criminal acts as part of such operations--that there was not much need for a defense. (20) Over time, however, the United States persuaded other nations to use the tactic more aggressively, usually as part of international drug enforcement. (21) After accommodating American demands, several nations have embraced the need to regulate undercover operations judicially. These nations recognize not a criminal "defense" but the judicial power to stay prosecutions or exclude evidence as a remedy to unlawful operations. (22) Whatever the regulatory form, the initial normative question is whether there is a rationale for any judicial regulation of these tactics. The globalization of undercover operations heightens the importance of identifying any such rationale.

In addition, American law enforcement is now in the process of deploying its most aggressive undercover tactics to combat terrorism. (23) For example, one of the more zealous techniques is to use the target as a "conduit" or "middleman" between two government agents, as where a confidential informant supplies the target the contraband that he then sells to an undercover agent. (24) Recently, the federal government used this tactic to obtain its highly touted terrorism conviction of Hemant Lakhani. (25) After Lakhani failed for a year to acquire the weapons he agreed to sell to an undercover agent, the F.B.I. had Russian undercover operatives make the sale to him. (26) Thus, as the law enforcement war on terror gains momentum, there is every reason to expect it to fund a new round of aggressive undercover operations, it is then all the more important to understand the normative basis, if any, for regulating these operations.

Critics might claim that the best regulation is to completely prohibit the tactic. Despite conventional wisdom, the case for prohibition is not trivial. Sting operations involve the government deceiving citizens for the purpose of encouraging them to commit crime. One may object in principle to the government's use of deception, its encouraging crime, or its use of deception for the purpose of encouraging crime. Even if certain circumstances justify permitting this governmental deception, recent scandals demonstrate in astonishing fashion how difficult it is to limit deception to those circumstances. In Boston, it recently came to light that F.B.I. agents protected a confidential informant by hiding his involvement in a murder and allowing innocent individuals to serve decades in prison for the crime. (27) In Tulia, Texas, a confidential informant fabricated undercover drug crimes that led to the arrest of 12% of the black population, with a substantial number sent to prison. (28)

Aside from scandals, undercover operations impose significant costs. A partial list includes the undermining of trust in a society permeated by police spies, (29) the corrupting influence that portraying criminals has on the police agents who carry it out, (30) the potential for violence erupting out of efforts to foment crime, (31) the exploitative recruiting of vulnerable individuals into the dangerous life of a confidential informant, (32) and the public's loss of respect for state agents who engage in deception, betrayal, and the exploitation of human weakness. (33) One might particularly doubt the benefit of undercover operations if one questions, rather than assumes, the value of the prohibitions these operations seek to enforce. Undercover operations are frequently used to enforce "victimless" criminal prohibitions--particularly drug offenses--that are themselves contestable.

Notwithstanding these many concerns, in this article, I assume that we should not ban all "proactive" undercover operations. By proactive, I mean operations that exceed infiltration and observation and involve government agents covertly manipulating the appearance of criminal opportunities. Such agents manufacture criminal opportunities either by pretending to be a criminal confederate who encourages a crime or by pretending to be a potential victim who offers an easy target. The former operations are often called "stings" and the latter "decoys." I assume that we should not ban all such operations because their benefits sometimes justify their costs. (34)

I make this assumption for two reasons. First, I believe it is true. Particularly for crimes of bribery and terrorism, where the stakes are high and conventional methods appear least effective, it seems that the benefits of this investigative tool justify some use of it. (35) But, I readily admit that I do not have a decisive argument to convince skeptics, even for these crimes. A second reason is relevance. Covert operations will undoubtedly persist regardless of academic criticism, so an important issue is why and how to regulate them.

Thus, I seek a justification for regulating undercover operations that is consistent with the decision to permit them. The framing is important. Having discussed undercover operations with many people over the years, I believe it is cognitively difficult to separate the decision to permit any such operations from the narrower question of how to regulate the operations once we've decided to permit them. Thus, it may be a residual doubt about the unseemly deception and exploitation inherent in all proactive operations that explains intuitions favoring a broad entrapment defense, rather than a consistent theory for both permitting and...