Unraveling unlawful entrapment.

• Author: Dillof, Anthony M.

1. INTRODUCTION

   Entrapment is as old as a pleasant garden, a forbidden fruit, and a subtle snake. "The serpent beguiled me, and I did eat," pleaded Eve in response to an accusing Lord God. (1) Early English cases report instances of citizens being lured into crime so they might be apprehended. (2) Nineteenth century American cases similarly record examples of persons tempted to illegality for the purpose of subjecting them to criminal sanctions. (3) Entrapment as a social phenomenon has long been with us.

   In contrast, entrapment as a legal defense is of relatively recent mint. Under the defense, a person may not be convicted of a crime if he has been encouraged to commit it by a government agent under the appropriate circumstances. The doctrine's genesis is generally traced to a series of United States Supreme Court opinions starting in the

   1930s. (4) These opinions broke with the traditional view that it was legally irrelevant how the criminal was led to temptation. (5) Following the Supreme Court's lead, virtually every jurisdiction in the United States has adopted a version of the defense. (6) Based on its brief history and wide reception, entrapment has strong claim to being the newest inductee into the criminal law's pantheon of defenses. (7)

   The fact that entrapment was for so long unrecognized as grounds for exoneration suggests that its rationale is not obvious. Indeed, a moment's consideration reveals the defense to be positively perplexing. Consider these scenarios:

   Jacob is a 56-year-old farmer. He orders by mail a magazine of photographs of nude boys at a time when such materials could by legally ordered. Subsequently, over a two-and-a-half year period, he receives unsolicited mailing from five organizations such as "The American Hedonist Society," which purport to oppose censorship of pornography and support sexual freedom Although Jacob does not place an order for child pornography with one such organization that contacts him through the mail, through a second he orders a magazine entitled "Boys Who Love Boys.'" Jacob is subsequently arrested for possessing sexually explicit depictions of children. Ken is desperately in need of money. He approaches Rocky for a loan. Rocky refuses, but convinces Ken, who has no history of drug use, to join a drug transaction. Ken and Rocky drive to a highway intersection where they meet Willy. Willy gives Ken $300. Willy and Ken agree to meet later that day to complete the transaction. Ken reluctantly accepts a bag containing three grams of cocaine from Rocky. Rocky, Ken and Willy later meet in a parking lot. When Ken gives Willy the bag, he is arrested and charged with dealing in cocaine. Rich runs an ongoing yard sale. One day at the yard sale, he is approached by Dale. Dale offers hint $200 worth of food stamps for an electric typewriter. When Rich declines, Dale asks hint if he would be interested in purchasing the food stamps. Rich, who enjoys bartering, offers Dale $30, and they shortly agree on $35. Next month, Rich is again approached by Dale, and Rich agrees to buy $870 worth of food stamps for $140. Rich is charged with unauthorized use of food stamps. On these facts, Jacob, Ken and Rich will almost certainly be guilty as charged and face significant periods of incarceration. Indeed, their cases might be considered all too common examples of how persons come to step over the line into illegality and become first-time offenders. Now, however, add the facts that (1) the organizations that contacted Jacob were fictitious ones created by a unit within the Postal Service; (2) Rocky is an informant and Willy is an undercover police officer, and (3) Dale is an undercover police officer. With these additional facts, Jacob, Ken, and Rich will very likely be able to establish the entrapment defense and avoid all liability. (8)

   Why should Jacob, Ken and Rich now escape criminal sanctions? As a doctrinal matter, the government's role in the crimes is the critical element triggering the operation of the defense. In order for a defendant to establish the entrapment defense, a government agent must be the tempter or inducer. (9) This fact, however, appears to have no bearing on the personal blameworthiness of Jacob, Ken and Rich. After all, as far as they knew, they were dealing with private citizens. Subjectively they appear to share the same culpable states of mind as their hypothetical counterparts who correctly believed they were dealing with private citizens and who would be convicted. In both the actual and hypothetical cases, the temptations should have been resisted. Likewise, it appears that Jacob, Ken and Rich are no less dangerous to society by virtue of the government's role in their crimes. Their dispositions to crime are equally well confirmed regardless of whether those they are interacting with are employed by the government or are private citizens. Punishment is generally considered appropriate for those who have manifested their dangerousness through blameworthy conduct prohibited by the criminal law. Punishment therefore seems appropriate for Jacob, Ken and Rich. To be sure, some police activities that target the blameworthy and dangerous persons are objectionable on public policy grounds. For example, unconstitutional searches and seizures, (10) even if in principle unobjectionable when used against criminals, (11) are never permitted because they carry an unacceptable risk of being used against innocent citizens who can rightly object to them. However, it is unclear what risks are posed to innocent citizens by the type of actions employed against Jacob, Ken and Rich as innocent citizens do not act in morally culpable ways. Why then permit the plea of entrapment?

   Entrapment has been described as a defense "buffeted by conflicting interpretations." (12) This Article attempts to advance a new and superior interpretation by focusing on the relevancy of the entrapper's governmental status. In this manner, the puzzle of entrapment can be neatly unraveled. First, the article presents the basic contours of the doctrine. Second, it reviews a variety of theories of entrapment and exposes their shortcomings as explanations for why the entrapped should be exonerated. Third, the Article introduces and defends a new theory of entrapment--entrapment as unfairness. According to this theory, entrapment is neither an excuse, a justification, nor a public policy defense, as those categories have traditionally been understood. Rather, entrapment is fatally unfair to its target in the following sense: For society to impose criminal sanctions on an entrapped person would be to place on her a disproportionate share of the cost of general crime prevention and control, violating the well-established norm of distributive justice that, to the extent possible, the cost of an activity should be shared among all its beneficiaries. After elaborating this thesis, the Article considers and responds to a number of potential objections to entrapment as unfairness. Finally, the Article applies the theory to a number of current controversies concerning entrapment.

2. THE LAW OF ENTRAPMENT

   Any exposition of the law of entrapment must begin with the fact that the doctrine has two versions. The first version is the subjective version; the second is the objective version. As discussed below, although they are distinct in structure and content, they overlap significantly in application.

   1. BASICS OF THE SUBJECTIVE VERSION

      The subjective version of the entrapment defense is followed in the federal courts and in a substantial majority of the states. (13) Commonly it is judicially created and lacks a statutory formulation. (14)

      The subjective version of the defense has a two-part structure. In most courts employing the subjective version, a defendant wishing to assert entrapment must first establish by a preponderance of the evidence that a government agent "induced" him to commit the crime he is charged with. (15) If he is unsuccessful, the defense fails. If the defendant is successful in carrying this burden of proof, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was "predisposed" to commit the crime. (16) If the government carries its burden of proof demonstrating predisposition, the defense fails. However, if at this point the government fails to prove beyond a reasonable doubt that the induced defendant was predisposed, the defense succeeds and the defendant is acquitted on the ground of entrapment.

      In practice, it is relatively easy for the defendant to satisfy the first part of the test. "Inducement" has been defined expansively as "soliciting, proposing, initiating, broaching or suggesting the commission of the offense charged." (17) It is clear that inducement requires more than merely the furnishing of an opportunity for crime. (18) An offer to purchase drugs at market price, for example, is not an inducement. (19) Nevertheless, inducement does not require that the government agent's conduct caused the defendant to commit the crime. It will suffice that the conduct "could have caused an indisposed person to commit the crime." (20) Significantly, there is no formal requirement that the inducement offered by the government rise to a particular level of force, persuasiveness or pressure. (21) For example, entrapment has been found as a matter of law where a 1930s prohibition agent, after establishing that he and the defendant had served in the same army division, merely made repeated requests for illegal liquor to the defendant. (22) Likewise, entrapment has been found as a matter of law based merely on repeated requests for narcotics by an acquaintance claiming to need them to assuage his addiction. (23) Rather than focusing on the conduct of the tempter, the requirement of inducement in practice seems to focus on the status of the tempter. (24) Only government inducement will qualify a defendant for entrapment. (25) Where the...