Introduction

Government-Induced Crime and Entrapment

Introduction

Many crimes are committed privately between people who both want the transaction to happen. A drug sale, a bet placed with an illegal bookmaker, or a paid vice encounter leaves no injured party to report it, so the ordinary machinery of investigation, which usually starts with a victim's complaint, has nothing to start from. Police therefore send undercover agents and informants to pose as willing buyers, sellers, or customers, simulating a criminal opportunity for anyone inclined to take it. That tactic is often the only way to gather evidence of these offenses, but it carries a built-in risk: an agent who begins by offering an opportunity can end by manufacturing a crime in someone who would not otherwise have committed it.¹

The problem is hard to solve with the usual criminal-law tools, because the person caught in such an operation has typically done everything the offense requires and has done it intentionally. A buyer who purchases narcotics from an agent intends the purchase, so no element is missing and no mental-state defense is available. The defense has to rest on the government's own role, and that role varies enormously from case to case. An undercover officer who does nothing more than offer to buy narcotics at the going price from a suspected dealer has contributed almost nothing to the crime. An agent who builds a friendship for the purpose and then works on the friend's sympathies until the friend's unwillingness gives way has contributed nearly all of it.² The general rule denies the defense in the first situation and allows it in the second, a line the Supreme Court described in Sherman v. United States as the division between a trap for the unwary innocent and a trap for the unwary criminal.³

Model Penal Code § 2.13 is the organizing text for this lesson.⁴ Subsection (1) defines the wrong: a public law enforcement official, or a person acting in cooperation with one, commits entrapment by inducing or encouraging another person to commit an offense, for the purpose of obtaining evidence of it, either through knowingly false representations that the conduct is not prohibited or through methods of persuasion that create a substantial risk that the offense will be committed by persons other than those ready to commit it.⁵ The chapter follows the order in which a fact pattern would be analyzed. It asks first who qualifies as an entrapper, then the two ways entrapment can be committed, and then how the Code's objective focus on the government's methods differs from the federal courts' inquiry into whether the particular defendant was predisposed.⁶ It then turns to the procedure and burden of proof in subsection (2), the exclusion of violent offenses in subsection (3), and the constitutional backdrop.⁷ The first section takes up why the doctrine exists and where the line between the unwary innocent and the unwary criminal falls.