Entrapment - United States

United States

The entrapment defense in the United States has evolved mainly through case law. Two competing tests exist for determining whether entrapment has taken place, known as the "subjective" and "objective" tests. The "subjective" test looks at the defendant's state of mind; entrapment can be claimed if the defendant had no "predisposition" to commit the crime. The "objective" test looks instead at the government's conduct; entrapment occurs when the actions of government officers would have caused a normally law-abiding person to commit a crime.

Courts took a dim view of the defense at first. " has never availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian, ethics, it never will" a New York Supreme Court said in 1864. Forty years later, another judge in that state would affirm that rejection, arguing " should not hesitate to punish the crime actually committed by the defendant" when rejecting entrapment claimed in a grand larceny case.

Other states, however, had already begun reversing convictions on entrapment grounds. Federal courts recognized entrapment as a defense starting with Woo Wai v. United States, 223 F.1d 412 (9th Cir. 1915). The U.S. Supreme Court first declined to consider the question of entrapment in Casey v. United States, 276 U.S. 413 (1928), since the facts in the case were too vague to definitively rule on the question. Four years later, it did and in Sorrells v. United States, 287 U.S. 435 (1932) unanimously reversed the conviction of a North Carolina factory worker who gave in to an undercover Prohibition officer's repeated entreaties to get him some liquor. It identified the controlling question as "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials".

In Sherman v. United States (356 U.S. 369 (1958)), the Court considered a similar case in which one recovering drug addict working with federal agents from the Federal Bureau of Narcotics (a predecessor agency to today's Drug Enforcement Administration (DEA)) solicited another to sell him drugs on the premise that his own efforts were failing. Again unanimous, its opinion focused more clearly on the defendant's predisposition to commit the offense, and on that basis overturned Sherman's conviction as well, since although he had two prior drug convictions, the most recent dated back five years. He was also attempting to rehabilitate himself, had made no profit on the sales and no drugs were found in his apartment when it was searched, suggesting the absence of a predisposition to break drug laws. "To determine whether entrapment has been established," it said, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal".

Prosecutors won the next two times entrapment came before the Court, in United States v. Russell (411 U.S. 423 (1973)) and Hampton v. United States (425 U.S. 484 (1976)), albeit by narrow margins. In the former, the Court upheld the conviction of a Washington man for manufacturing methamphetamine even though an undercover agent had supplied some of the ingredients, and also pondered an "outrageous government conduct" defense, though it did not enable it. Hampton let stand, by a similar margin, the conviction of a Missouri man who had, upon seeing track marks on a DEA informant's arms, expressed interest in selling him heroin. After several sales to the informant and undercover agents, he was arrested. The defendant alleged he had been led to believe by the informant that he was not selling heroin but a counterfeit. The Court found he was adequately predisposed to sell heroin in any event.

This became known as the "subjective" test of entrapment, since it focused on the defendant's state of mind. However, in all cases, concurring opinions had advocated an "objective" test, focusing instead on whether the conduct of the police or other investigators would catch only those "ready and willing to commit crime." Under the objective approach the defendant's personality (i.e., his predisposition to commit the crime) would be immaterial, and the potential for the police conduct to induce a law-abiding person considered in the abstract would be the test. This, supporters argued, avoided the dubious issue of an unexpressed legislative intent on which the Sorrells court had relied and instead grounded the entrapment defense, like the exclusionary rule, in the court's supervisory role over law enforcement. And like the exclusionary rule, they would have had judges, not juries, decide whether a defendant had been entrapped as a matter of law.

Since the subjective test focusing on predisposition had, unlike the exclusionary rule, not been applied to the states, they were free to follow it as they saw fit. The state courts or legislatures of 37 states have chosen the subjective test, while the others use the objective test. Some have allowed both the judge and the jury to rule on whether the defendant was entrapped.

In the Supreme Court's last major ruling on entrapment, Jacobson v. United States (503 U.S. 540 (1992)), which overturned the conviction of a Nebraska man for receiving child pornography via the mail, the subjective vs. objective debate was completely absent. Both the majority and dissenting opinions focused solely on whether the prosecution had established that the defendant had a predisposition for purchasing such material (which had only recently been outlawed at the time of his arrest). Since no other material was found in his home save what he had purchased from the undercover postal inspectors, Justice Byron White believed the operation had implanted the idea in his mind through mailings decrying politicians for assaulting civil liberties by passing laws such as the one the inspectors hoped he would break. Sandra Day O'Connor disagreed in her dissent, arguing that the record did indeed establish that Jacobson was interested in continuing the purchases. Analysts believed that was the Court's indication it considered the subjective vs. objective debate settled.

University of Arizona law professor Gabriel J. Chin points out that the entire federal entrapment defense rests on statutory construction - an interpretation of the will of Congress in passing the criminal statutes. As this is not a Constitutional prohibition, Congress may change or override this interpretation by passing a law.