Entrapment and ‘‘Stings’’

Entrapment is a defense to criminal charges based on the idea that the defendant was induced to commit the crime by government agents. The defense is often raised in drug crimes, child pornography crimes, bribery, and prostitution. These ‘‘victimless crimes’’ are often prosecuted based on undercover investigations, which are colloquially known as stings.

Entrapment is an affirmative defense, meaning the defendant admits that he committed the crime but seeks to avoid punishment by explaining the conduct. In effect, the defendant is saying, ‘‘Yes, I committed the crime, but you should not punish me because the government made me do it.’’

The entrapment defense is hard to define because government encouragement to commit a crime is not per se impermissible; merely setting a trap to ensnare a criminal is not entrapment. The courts often say that a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. A court must evaluate where that line is to be drawn based on the facts of each case by focusing on the individual defendant’s predisposition and police conduct.

Two basic theories for the entrapment defense have evolved, and jurisdictions in the United States are about evenly split on which is best. One approach focuses on the defendant and asks whether the defendant is worthy of punishing. The theory is that persons should not be held liable for acts they would not have committed without encouragement from a government agent. This approach focuses on the actual mental state of individual defendant, and is often called the subjective approach. Judge Learned Hand described the rationale in United States v. Becker (1933) as ‘‘a spontaneous moral revulsion against using the powers of government to beguile innocent, though ductile, persons into lapses which they might otherwise resist.’’ This is the approach used in the federal courts.

The Supreme Court recently clarified this subjective approach to the defense in Jacobson v. United States (1992). Jacobson was a child pornography case wherein the defendant received repeated invitations and inquiries from several fictitious organizations. He was also invited to place orders with several businesses. Many of the communications from the bogus organizations referred to freedom of speech and censorship. The Court held that Jacobson’s conviction for receiving child pornography could not stand because the government had not shown that ‘‘Jacobson was predisposed, independent of the Government’s acts and beyond a reasonable doubt, to violate the law by receiving child pornography through the mails.’’ By the time he committed the offense, in other words, Jacobson had already been exposed to so much inducement by the government that he had become predisposed to commit it, but only because of the government’s inducement. Thus, the government must prove that a defendant was predisposed to commit the offense, and was so predisposed before any government action to induce the commission of the offense.

The second approach to the defense is based on using the defense as a tool to regulate police conduct. If the defendant has a defense to crimes committed when police are heavily involved, the prosecution will be worthless, so the defense will extinguish any incentive the police have to set up abusive stings. This approach focuses on the police conduct without regard to the mental state of the particular defendant being prosecuted. This definition of entrapment is often referred to as objective because it focuses on police conduct without regard to the particular defendant’s mental state. This is the approach used in a majority of state courts.

These somewhat conflicting rationales have translated into two definitions of the entrapment defense. For jurisdictions focusing on the defendant’s mental state, the government can overcome the defense by showing that the particular defendant was predisposed to commit the offense. If the defendant was predisposed to commit the offense, it does not matter what the government agents did, as the defense is unavailable. For jurisdictions focusing on police conduct, the defense is established if the conduct of the government agents is so intrusive that an ordinary law-abiding person would have been enticed to commit the offense. If this is so, the police went too far and need to be deterred from such investigations. For example, in one case a friend (actually an undercover police officer) approached the defendant and begged her to buy her food stamps because she needed money to buy Christmas presents for her children; when the defendant was prosecuted for trafficking in food stamps, she claimed entrapment.

An important difference between the objective approach focusing on police conduct and the subjective approach focusing on the defendant’s mental state is that predisposition of the defendant is irrelevant under the objective approach, while under the subjective approach, it is the key element. This means that in jurisdictions adopting the subjective approach, the government can introduce at trial evidence of the defendant’s bad conduct as proof of predisposition. This bad conduct, normally excluded fromtrial as irrelevant under the rules of evidence, is rendered admissible under the subjective definition of the defense. This evidentiary impact of the subjective approach is a drawback for defendants.

One question frequently raised by the defense is whether a defendant may be targeted for investigation in the absence of any suspicion. In other words, must the government justify why the defendant was chosen as the target for a sting? The Supreme Court has never directly addressed the question of whether the government must demonstrate some level of suspicion before targeting a defendant. Generally the lower appellate courts have concluded that no suspicion is required.

A defendant cannot use the defense of entrapment when a private agent induces commission of the offense.

SARAH N. WELLING

References and Further Reading

• Bennett, Warren, From Sorrells to Jacobson: Reflections on Six Decades of Entrapment Law, and Related Defenses in Federal Court, Wake Forest Law Review 27 (1992): 829.
• Marcus, Paul. The Entrapment Defense. 2nd ed. Charlottesville, VA: Michie Butterworth, 1995.
• Paton, Scott C., The Government Made Me Do It: A Proposed Approach to Entrapment Under Jacobson v. United States, Cornell Law Review 79 (1994): 995.
• Seidman, Louis M., The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, Supreme Court Review 1981 (1981): 111.

Cases and Statutes Cited

• United States v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1933)
• Jacobson v. United States, 503 U.S. 540 (1992)

See also Child Pornography; Due Process; Entrapment by Estoppel