356 U.S. 369 (1958)
In late August 1951, Kalchinian, a government informer, first met petitioner at a doctor's office where both apparently were being treated to be cured of narcotics addiction.1 Several accidental meetings followed, either at the doctor's office or at the pharmacy where both filled prescriptions.2 From mere greetings, conversation progressed to a discussion of mutual experiences and problems, including their attempts to overcome addiction to narcotics.3
Kalchinian asked petitioner if he knew of a good source of narcotics and asked petitioner to supply him with a source because he was not responding to treatment.4 From the first petitioner tried to avoid the issue.5 Not until after several repetitions of the request, predicated on Kalchinian's presumed suffering, did petitioner finally acquiesce.6 Several times thereafter he obtained a quantity of narcotics which he shared with Kalchinian, with Kalchinian bearing the cost of his share plus expenses.7
After several such sales Kalchinian informed agents of the Bureau of Narcotics that he had another seller for them.8 On three occasions during November 1951 government agents observed petitioner give narcotics to Kalchinian in return for money supplied by the Government.9
At the trial the factual issue was whether the informer had convinced an otherwise unwilling person to commit a criminal act. The question was whether petitioner was already predisposed to commit the act and exhibited only the natural hesitancy of one acquainted with the narcotics trade.10 The issue of entrapment went to the jury, and a conviction resulted.11 Petitioner was sentenced to imprisonment for ten years.12 The Court of Appeals for the Second Circuit affirmed.13 The Supreme Court granted certiorari.14 A previous conviction had been reversed on account of improper instructions as to the issue of entrapment.15
The government's additional evidence included petitioner's record of two past narcotics convictions from 1942 and 1946.16 When his apartment was searched after arrest, no narcotics were found.17 Kalchinian was himself under criminal charges for illegally selling narcotics in 1951 and had been the instigator of at least two other prosecutions.18
Whether petitioner's conviction should be set aside on the ground that as a matter of law the defense of entrapment was established?19
Entrapment occurs when the criminal design originates with the officials of the government.20 They implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.21 The government cannot disown its informer.22 Old convictions are insufficient to prove readiness when the record shows the defendant was attempting to overcome addiction.23
Yes. The undisputed evidence shows that Kalchinian induced the petitioner through repeated sympathetic requests while the petitioner was attempting to overcome his addiction.24 There is no evidence of predisposition beyond old convictions that are insufficient to show readiness at the time of the approach.25 The government cannot disown Kalchinian's actions as an active informer.26
The conviction should be set aside because the defense of entrapment was established as a matter of law.27
Related opinions on this issue
Although agreeing that the undisputed facts show entrapment as a matter of law, Justice Frankfurter reaches this result by a different route.28 He criticizes the Sorrells theory and advocates an objective test focusing on whether the police conduct falls below standards for the proper use of governmental power, rather than the defendant's predisposition.29 In this case, the repeated requests to overcome petitioner's hesitancy, coupled with appeals to sympathy based on mutual experiences with narcotics addiction, constitute impermissible police conduct that should be condemned regardless of the defendant's past record.30
Whether the doctrine of entrapment should be reassessed according to principles announced in the separate opinion of Mr. Justice Roberts in Sorrells v. United States?31
The Court does not ordinarily decide issues not presented by the parties.32 There is good reason not to vary that practice when it would entail overruling a leading decision and creating more problems than it would solve.
No. The suggestion to reassess the doctrine according to Justice Roberts' principles in Sorrells was not raised by the parties here or below.33 Deciding on that ground would require overruling Sorrells and addressing important issues of law enforcement and trial procedure without the benefit of argument by the parties, including the Government.34
The Court declines to reassess the doctrine of entrapment on the grounds suggested by Justice Roberts' separate opinion in Sorrells.35