Entrapment by Estoppel

In the American criminal justice system, individuals are held to the principle that ‘‘ignorance of the law is no excuse.’’ Essentially, this rule means that an accused may not escape criminal liability by alleging that he was unaware that his conduct was illegal. All people are presumed to know the law, and to act in accordance with it. However, courts have recognized a narrow exception to this rule where an accused relies on information from an official state actor and acts in accordance with that information. This exception is referred to as ‘‘entrapment by estoppel,’’ ‘‘reasonable reliance,’’ or ‘‘good faith reliance on a state actor’s advice.’’

The U.S. Supreme Court discussed the constitutional aspect of the defense in Raley v. Ohio (1959) and Cox v. Louisiana (1965). In these decisions, the Court recognized that individuals should not be prosecuted for engaging in conduct specifically authorized through government advice. Prior to these decisions, state courts had considered the issue with varying results, weighing the need for bright-line rules on the one hand, against the potential for government misconduct and the conviction of individuals with little or no moral culpability on the other. In 1962, the American Law Institute included a codified form of entrapment by estoppel in the Model Penal Code, a version of which many states subsequently adopted.

The specific elements of the defense of entrapment by estoppel may vary slightly by jurisdiction; however, to rely on the defense, an accused must essentially show that (1) the legality of the conduct was officially authorized by a government agent, (2) the accused relied on this acknowledgement, (3) the reliance was reasonable, and (4) given the reliance, prosecution would be unfair. ‘‘Official’’ authorization can be found in statutes, judicial decisions, or interpretations offered by relevant government actors in an official capacity. Under no circumstances are individuals permitted to rely on their own interpretation of a law as a defense, no matter how reasonable that interpretation may be. This principle was noted in People v. Marrero (1987), in which a New York court upheld a conviction even though half of the judges who considered the issue agreed with the defendant’s interpretation of the law in question. Additionally, as the court found in Miller v. Commonwealth (1997), the government agent must be one who is charged with the interpretation, administration, or enforcement of the law at issue.

There are several justifications for the defense of entrapment by estoppel. First and foremost, the defense recognizes that it is fundamentally unfair to convict an individual for conduct that is authorized by the government, even if that authorization later turns out to be erroneous. Second, individuals who act in compliance with the government’s interpretation of a law, even if that interpretation is erroneous, lack the moral culpability necessary to justify a criminal conviction. Finally, holding individuals criminally liable for complying with the government’s interpretation of a law may have the effect of inhibiting otherwise lawful behavior and undermining society’s confidence in the government.

JUDITH M. BARGER

References and Further Reading

• Cohen, Mark S., Entrapment by Estoppel, Colorado Lawyer 31 (February 2002): 45–48.
• Dressler, Joshua. ‘‘When Mistake of Law Is a Defense: Exceptions to the General Rule.’’ In Understanding Criminal Law, 168—177. 3rd ed. New York: Lexis Publishing, 2001.
• Parry, John T., Culpability, Mistake, and Official Interpretations of Law, American Journal of Criminal Law 25 (1997): 1–78.
• Pasano, Michael S., Walther J. Tache, and Thierry Oliver Desmet. ‘‘Using the Defense of Entrapment by Estoppel.’’ Champion, May 26, 2002, 20–4.

Cases and Statutes Cited

• Cox v. Louisiana, 379 U.S. 559 (1965)
• Miller v. Commonwealth, 492 S.E.2d. 482 (Va. 1997)
• People v. Marrero, 597 N.E.2d 1068 (N.Y. 1987)
• Raley v. Ohio, 360 U.S. 423 (1959)

See also Due Process; Entrapment by Estoppel; Raley v. Ohio, 360 U.S. 423 (1959)