In American criminal law, "entrapment" is usually defined as:
Government agents inducing individuals to commit crimes that they otherwise would not commit (Samaha 307).
Entrapment, like many other aspects of the American legal system, is something everyone "knows" about but that few people really know about. Most people are familiar with entrapment because they have seen the oft-repeated scenario on television in which a prostitute asks a john whether or not he is a police officer and is quick to remind him that if he does not answer honestly and the transaction proceeds, it is entrapment. (Alternately, a female officer undercover is approached by a john and the above exchange proceeds with the appropriate roles and words reversed.) I wonder how many solicitation arrests are made annually thanks to this bit of misinformation that many people seem to accept as gospel. To understand why this view is incorrect, however, a few semantic points must be addressed.
First and foremost, entrapment is what is known as an affirmative defense. An affirmative defense is one in which the burden of proof shifts from the prosecution to the defense. It's a pretty basic idea to understand: you make a claim, you support it with evidence. It's not up to the other side to disprove your claim. This is why criminal defendants are legally presumed innocent until proven guilty...it is not merely enough for the prosecution to make a charge and then tell the defense "prove you didn't kill the Pope and rape 18 cows." Affirmative defenses, however, reverse the process because most of them tacitly necessitate at least a partial admission to the crime(s) at hand (in fact, defendants claiming total innocence are generally not permitted to use entrapment as a defense at trial on the state level). Aside from entrapment, other affirmative defenses include self defense, insanity, and duress (in which the principal actor is compelled to commit a crime by a third party under threat of loss of property or life). There are two tests used in the United States to determine if a defendant has sufficient legal grounding to mount an entrapment defense. The first (and more common) is what is known as the subjective test. There are two elements to the subjective test:
- The government must create the intent;
- The defendant must not be predisposed to criminal behavior.
The other (and far less common) test is known (predictably enough) as the objective test. There is only one element to this test:
- Government actions compel a normally law-abiding person to engage in criminal behavior.
At first glance, the two competing measures don't really seem that different. The big difference, however, is the specific use of the word "intent" in the first element of the subjective test. Let's suppose there's a sting operation in which Officer Bill is working undercover as a crack dealer. The goal is to find someone looking for some crack, make specific arrangements for a transaction, and arrest the offender. This is a fairly common practice in law enforcement, and as such, there are certain guidelines that tell Bill what he can and cannot do during the course of this operation. If Bill's lucky, he might get a suspect to approach him and ask "man, you got any rock?" The process is fairly elementary from that point on. Bill is also allowed a certain amount of leeway to engage in encouragement; that is to say, Bill could make the first move. Encouragement is generally a poor method of going about it because the whole point of the operation is to get someone to make specific demands ("you want something, man?" "I'll give you $15 for some crack.") while the officer is suspposed to remain relatively passive or at the very least incredibly vague during the set up of the transaction. Bill could then move onto what is called active encouragement, in which he takes the initiative ("come on, man, I got crack for $15!").
Active encouragement is a very sticky situation for law enforcement, as you may very well imagine. Active encouragement is what lays the foundation for entrapment defenses. I'm sure you can see the issue here: since the government made the first move, it could be argued that they were the ones who placed the intent in the head of the defendant. The defendant just went along with the transaction for whatever reason. This is the first element of the subjective test for entrapment. Even if it is determined that the government originated the intent, there is still a way for the charge to hold: that way, of course, is the second element of the subjective test. If the defendant can be shown to be predisposed to criminal behavior (prior convictions for similar offenses, for example), then it is not much of a logical leap to assume that the defendant quite possibly could have developed the criminal intent on the basis of the fact that he or she is already a criminal. For an entrapment defense to be successful, the defense must satisfy both elements of the subjective test, which is the main reason why the familiar prostitute/cop scenario just doesn't work.
It goes without saying that a prostitute will be disinclined to solicit someone she knows to be a police officer, but that has nothing to do with intent or predisposition in the criminal sense. The police are and have always been allowed to use deception in the course of doing their job. Assuming the officer denies being a cop and the transaction were then to proceed -- as it almost certainly would -- then it is clear that the intent already existed. Why even ask if you weren't thinking of doing it anyway? An entrapment case like this is especially hard to build if the defendant was the one who initiated the contact, as is usually the case in large metropolitan areas. There is also the hurdle of the issue of criminal predisposition. To be fair, the government doesn't have carte blanche with this...receiving a citation for littering would in all probability not be considered evidence of predisposition in this specific case. However, prior convictions for similar crimes (solicitation, lewd behavior in public, etc.) would effectively demolish an entrapment defense in this instance. First offense cases would be a bit easier to handle since I can't imagine any prosecutor being allowed to retort "this wasn't her first offense, it was just the first time she got caught." Still, that takes us back to intent, which is the killer; we will see that predisposition is not always the greater test.
Up until the early part of the 20th century, entrapment was not permitted to be used as a defense for criminal actions. In People v. Mills (1904), a New York court declared:
The courts do not look to see who held out the bait, but to see who took it.
Though this had been the established norm in the United States since its legal system had even been created, it should be noted that most "entrappable" crimes are those that (generally) lack complaining victims
: prostitution, most drug trafficking, some gambling, and so forth. Because of this distinct paucity of complaints (after all, who's going to call up the police station and say "officer, I just paid a woman to have sex with me, now take me away!"
?), it is very difficult for law enforcement to, uh, enforce these laws. They have to catch perpetrators of these crimes in the act or else there's not going to be much point in trying to prosecute or arrest them. (To briefly digress, it is strictly speaking not against the law in this country to use illegal drugs. What is
illegal (in most instances) is the possession of said drugs, which is why you'll often hear of charges such as "possession with intent to distribute
" or "possession with intent to use.") But there came a tendency with the "changing times" (whatever that's supposed to mean) to frown upon this sort of encouragement in law enforcement, mainly because it began to seem as if the goal was not so much to catch regular criminals in the act as it was to create criminals out of normal citizens for the sole purpose of arresting them. It is against this backdrop that entrapment became an accepted legal defense.
To return to the issue of active encouragement, let us examine two cases. First, there's the case of Sherman v. United States. Sherman was a former heroin addict in rehab for treatment. An undercover agent in the same rehab center asked Sherman to get him some heroin. Though Sherman originally refused (he was, after all, trying to get treatment for his addiction), the agent made repeated requests over a period of several weeks and Sherman eventually agreed to do it. Predictably, he was arrested. However, the Supreme Court overturned his conviction, saying the government crossed the line from acceptable encouragement to unacceptable encouragement. The fact that he only agreed to get the heroin after weeks of begging shows he definitely lacked the intent to commit the crime. Likewise, though he was a heroin addict (which implies he had to have acquired the heroin he formerly used illegally), the special circumstance of his being in rehab shows that he lacked the necessary predisposition to commit the crime.
Next, there's the case of Jacobson v. United States, which isn't quite as clear cut since it concerns a crime most of us don't consider victimless: child pornography. In 1984, Jacobson ordered two magazines (called Bare Boys I and Bare Boys II) from a catalogue dealing with homosexual pornography. Though he had apparently expected pictures of 18-21 year old men, the magazines contained nude photographs of young boys. At that time, however, such materials were not illegal since they did not depict the children in sexual situations. A few months afterwards, it did become illegal. After attaining Jacobson's name from the bookstore from which he had received the magazines, the government began a campaign of Kafkaesque proportions lasting for more than two and a half years to see whether or not Jacobson would be inclined to break the then-new law.
First, the government sent Jacobson a letter from a fake organization called the American Hedonist Society that claimed to be dedicated to "the right to seek pleasure without restrictons being placed on us by an outdated morality." Jacobson replied to the letter and filled out a survey in which he claimed to "enjoy" the idea of "pre-teen sex" but then remarked that he did not like or engage in pedophilia. Next, the government sent him a letter from a fake company called Midlands Data Research that sought to gauge his interest in "the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite age." Jacobson responded by asking for "more information" and then asked that his name be kept confidential. The government then sent him a letter from the fake Heartland Institute for a New Tomorrow, which claimed to be working against "arbitrarily imposed legislative sanction(s) restricting ... sexual freedom" and sent him another survey in which he indicated he was somewhat but not highly interested in homosexual pre-teen sex. The fake HINT organization replied immediately and gave him a list of pen pals with whom he could correspond if he so chose, but Jacobson never replied. Regardless of this fact, the government sent him yet another letter, this time from someone calling himself Carl Long and purporting to be a new pen pal. The two exchanged letters and Jacobson said he was interested in "good looking young guys (late teens and early 20's) doing their thing." After two letters -- neither of which made any mention of child pornography -- , Jacobson discontinued the correspondence.
After that, the US Customs Service received Jacobson's name from the Postal Service for inclusion in their own child pornography sting known as Operation Borderline. At this point, it may be worth noting that the Postal Service had no evidence that Jacobson had received or solicited information from any non-government child pornography organization. As Operation Borderline commenced, Jacobson received a letter from yet another fake government organization, this one claiming to be a Canadian company called Produit Outaouais, in which he was given another catalogue featuring children engaging in sexual activity. He placed an order with Produit Outaouais which was never filled and the exact nature of the materials ordered are unknown. Presumably, the materials were not child pornography as the operation continued and Jacobson was never brought in for charges relating to the Produit Outaouais order. The Postal Service sent him a letter from still another bogus organization, this one being called the Far Eastern Trading Company Ltd. The gist of the letter was that it was foolish for the US government to be concerned with pornography coming onto its shores rather than the illegal drugs that were routinely flooding it. The letter also claimed that only a judge could order the opening of mail in America, so he would have nothing to worry about if he ordered from them. Eventually Jacobson ordered something called "Boys Who Love Boys" and he was arrested immediately after receiving it.
When he was arrested in 1987, the government searched his home and found no sign of any child pornography or anything that would suggest an interest in it beyond the now copious amounts of letters and correspondences from the various fake government organizations. He claimed he placed the order for the Boys Who Love Boys magazine because the description of it was vague and he was curious as to what all the "hysteria" was over. Jacobson was convicted at trial with his entrapment defense discarded and his first appeal was denied with his conviction being upheld. The Supreme Court overturned his conviction on the grounds of entrapment, stating "government agents may not originate a criminal design," as they had gone to labyrinthian efforts to do in this instance. In a dissenting opinion, Sandra Day O'Connor pointed out that Jacobson was only offered two opportunities by the government to buy such materials and he did so both times. I personally think this line of argument is true in a semantic sense, but it misses the point: would he have ordered the materials if he had not already had nearly 3 full years of repeated goading from the government? When he was arrested, the government found nothing -- aside from that which they had sent him -- that indicated he had any interest whatsoever in child pornography. However, because feelings about this issue are (rightly) very high, there is a very reactive desire to punish those who would even slightly entertain ordering such material. Still, the government's interest in testing the new law was exponentionally higher than Jacobson's somewhat passive interest in objectionable pornographic publications. Jacobson v. United States is a controversial case -- after all, the vote on the court was 5-4, with the Chief Justice counted among the dissenters -- but it is nevertheless an important one in balancing the right of the government to zealously and effectively prosecute criminals with the right of the individual to not be entrapped.
Samaha, Joel. Criminal Law: Sixth Edition. West/Wadsworth, 1999.