SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 3WINTER 1998
NOTE
What Is Outrageous Government Conduct? The Washington State Supreme Court Knows It When It Sees It: State v. Lively
Matthew V. Honeywell(fn*)
Inability to describe in general terms just what makes tactics too outrageous to tolerate suggests that there is no definition-and "I know it when I see it" is not a rule of any kind, let alone a command of the Due Process Clause.(fn1)
For the first time ever, the Supreme Court of Washington in State v. Lively(fn2) overturned a criminal conviction because of outrageous government conduct.(fn3) This decision employed a rarely-used, and even more infrequently successful, defense to achieve an apparently just result. Indeed, courts and scholars disagree on whether the defense, based on the Due Process Clause of the U.S. Constitution, actually exists and, if it does, how it applies to the facts of a given case. The U.S. Supreme Court has neither expressly and conclusively acknowledged nor disavowed the defense and has never employed it to overturn a criminal conviction. The existence of the outrageous government conduct defense has been acknowledged by most federal and state courts. Two federal circuits, however, have expressly repudiated it.(fn4) Thus, a conflict in interpreting the U.S. Constitution's Due Process Clause exists, and the U.S. Supreme Court is the only place to resolve it.
A representative body of literature has recently evolved discussing the outrageous government conduct defense; the majority of this literature favors and advocates its preservation.(fn5) A detailed review of relevant case law, however, will lead to confusion. Many cases that address the outrageous government conduct defense cite United States v. Russell's dicta(fn6) in recognizing that the defense exists, but refuse to hold the conduct at issue sufficiently outrageous to bar the defendant's conviction. In rejecting a defendant's due process claim, some courts have subjected their facts and precedents to greater scrutiny by engaging in lengthier analysis.(fn7) Nevertheless, the end result is the same-a successfully asserted due process claim based on outrageous government conduct is extremely rare.(fn8)
So why was the defense successful in State v. Lively? Because while a precise definition of "outrageous government conduct" is difficult to articulate, five out of the nine justices hearing the case apparently felt that the government agent's conduct, in light of all the surrounding circumstances, was repugnant enough to justify overturning the defendant's conviction.
The Lively case addresses several questions of law concerning the defense of entrapment and denial of due process.(fn9) Because the court was in general agreement on the entrapment issues and sharply divided on due process, this Note will address exclusively the due process defense, which was dispositive. The Lively majority attempts to clarify the judicial approach to this issue while reaching a just result. The dissent,(fn10) on the other hand, is skeptical of the existence of the due process defense and the majority's analysis.
Given the amorphous state of the outrageous government conduct defense, and with little guidance from the U.S. Supreme Court as to its existence or applicability, courts will continue to apply it as they see fit in particular cases. If and when the issue is ever considered by the high Court, it should perhaps look to the Lively case to explicitly define the doctrine for the benefit of other courts.
Part I of this Note will discuss the background of the outrageous government conduct defense; Part II will examine the facts of the Lively case; Part III will analyze the court's decision in Lively; and Part IV will discuss the policy considerations which precipitated the outcome. This Note concludes that the outrageous government conduct defense should continue to be recognized. Courts doing so should employ a "totality of circumstances" analysis and consider relevant public policy issues to determine whether a defendant's due process rights were violated.
I. Background Information About the Outrageous Government Conduct Defense
A. Historical Background
The defense of outrageous government conduct has a close relationship to the defense of entrapment, as both are products of the same U.S. Supreme Court case law(fn11) and appear to be inextricably intertwined. Thus, to examine the defense of outrageous government conduct, one must first examine the defense of entrapment.
Of the many available definitions of entrapment, the most enduring is that offered by Justice Roberts in Sorrells v. United States: "Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer."(fn12) The entrapment defense, born in 1932 in Sorrells,(fn13) matured in 1958 in Sherman v. United States.(fn14) While the justices in both cases agreed on the results, they could not agree on the method to reach them. Thus, from these opinions came the "objective" and "subjective" views of the entrapment defense.
The subjective view(fn15) of entrapment, the majority view, employs a two-step inquiry: A court first looks at whether the offense was induced by a government agent and, second, whether the defendant was predisposed to commit the type of offense charged.(fn16) A defendant is considered to be predisposed if he or she is "ready and willing to commit the crimes such as are charged in the indictment, whenever the opportunity was afforded."(fn17) If the defendant is predisposed, a defense of entrapment will fail.
On the other hand, the objective view(fn18) of entrapment, employed in a small minority of cases, focuses on the inducements used by government agents. Entrapment is established if police induced or encouraged the offense by "employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it."(fn19) In applying the test, it is necessary to consider the surrounding circumstances, such as evidence of the manner in which the particular criminal activity is usually conducted. While some practices may be impermissible in certain instances, each case must be judged on its own facts.(fn20)
There are three key distinctions between the entrapment and the outrageous government conduct defenses. First, entrapment is a question of fact for the jury while outrageous government conduct is a question of law for the court.(fn21) Second, the doctrines emanate from two different sources. Entrapment is a common law doctrine at the federal level but is based upon statutes at the state level.(fn22) Outrageous government conduct, however, is a constitutional question at either the state or federal level, though some state constitutions could have more expansive definitions of "due process of law."(fn23) Third, and most significantly, the focus of inquiry for an entrapment defense is a defendant's predisposition to commit the crime charged, while the focus of an outrageous government conduct defense is the conduct or role of a law enforcement agent in the commission of the crime.(fn24) This final distinction is the most controversial-it is the "subjective" versus "objective" debate on the entrapment defense that has been waged by courts and commentators for years. In fact, one of the chief arguments advanced by critics of the due process defense is that it is merely the objective view of entrapment disguised as a different defense.(fn25)
The outrageous government conduct defense was born with Justice Rehnquist's dicta in United States v. Russell.(fn26) In Russell, Justice Rehnquist began his opinion with the following: "While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, the instant case is distinctly not of that breed."(fn27) He later added: "The law enforcement conduct here stops far short of violating that 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment."(fn28) Justice Rehnquist did caution, however, that[s]everal decisions of the United States district courts and courts of appeals have undoubtedly gone beyond this Court's opinions in Sorrells and Sherman in order to bar prosecutions because of what they thought to be, for want of a better term, "overzealous law enforcement." But the defense of entrapment enunciated in those opinions was not intended to give the federal judiciary a "chancellor's foot" veto over law enforcement practices of which it did not approve.(fn29)
Two years later, in Hampton v. United States,(fn30) Justice Rehnquist tried to recant his dicta in Russell.(fn31) While the Court's likely motive in granting certiorari in Hampton was clarification of its position in Russell, the Hampton decision instead created more confusion. The case was decided by a plurality, with a minority siding with Rehn-quist's recantation but the majority of justices agreeing that they did not want to foreclose the possibility of a due process defense by state and federal courts.(fn32)
