Purpose of the Defense

Purpose of the Defense

The first legal response to police-induced crime was indifference. American common law generally recognized no entrapment defense, because a defendant who had committed the offense was guilty regardless of who supplied the opportunity.¹ Courts captured the attitude by saying they would “not look to see who held out the bait, but [rather] who took it.”² The position has an internal logic, since the defendant's act and intent are identical whether an agent or a stranger created the occasion. Its weakness is that it sets no ceiling: the law placed no limit on the degree of temptation to which officers and their agents could subject the people they were investigating.³ Modern investigators routinely simulate criminal opportunities through undercover buyers, staged fencing operations, and decoys that present an apparently easy victim.⁴ A rule that ignores the bait leaves every such operation free to escalate until it produces the offense it was meant to detect.

The defense that replaced that attitude grew first in the state courts and then, beginning with Sorrells v. United States in 1932, mainly in the federal courts, with the states afterward adopting what the federal decisions had built.⁵ In that case a government agent, a probation officer, asked the defendant again and again for whiskey. The defendant refused at first, finally relented, and sold a half-gallon, and the Supreme Court held that the agent's repeated and persistent solicitation entitled him to the defense.⁶ The Court defined entrapment as “the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.”⁷ Each clause does separate work. The officer must have originated the criminal plan, the officer's conduct must have produced the offense, and the defendant must be someone who would not have offended without that trickery, persuasion, or fraud. The last clause is the one that excludes the ready offender, who would have committed the crime with or without the officer.

Sherman v. United States (1958) shows the definition operating on sympathetic facts. A government informant who was being treated for narcotics addiction won the defendant's trust by sharing their experiences and problems in trying to overcome the habit, and then, saying he was not responding to treatment, asked the defendant to supply him with narcotics. The defendant tried to avoid the request, but after repeated entreaties and the informant's apparent suffering he agreed, and the Supreme Court held that entrapment was established as a matter of law.⁸ The Court's concern was that the government had played on the weaknesses of an innocent person and beguiled him into crimes he would not otherwise have attempted. Law enforcement exists to prevent crime and apprehend criminals, and that function, the Court said, “does not include the manufacturing of crime.”⁹

Two explanations account for acquitting a defendant who has committed every element of the offense. The first, which grounded the early federal decisions, treats the defense as an implied exception to the criminal statute: the Court assumed that Congress could not have meant its law to punish someone whom the government itself tempted into violating it.¹⁰ The legislature said nothing on the subject, so this intent is presumed, and the device lets a court reach a result based on public policy through the ordinary work of statutory interpretation.¹¹ The device has a consequence that returns in the last section of this chapter. A defense resting on presumed congressional intent is not required by the Constitution, so a legislature remains free to reshape it.¹²

The second explanation treats the defense as a control on police methods. On this view the point is to deter officials from fabricating crime by withholding the conviction when the investigation produced the offense.¹³ The incentive reasoning is direct. If induced offenses reliably ended in convictions, officials would gain by generating the very crimes they then prosecute, and nothing inside the investigation would restrain them; denying the conviction removes that gain at the source. In People v. Barraza, the California Supreme Court adopted a test designed primarily to deter impermissible police conduct, and it endorsed Justice Holmes's judgment that “it is a less evil that some criminals should escape than that the Government should play an ignoble part.”¹⁴ That statement shows how the police-control theory regards the defendant. The defense does not depend on the defendant's innocence; it depends on the government's conduct.

The two explanations lead to different questions, and that difference drives the main split in the doctrine. If the defense is an implied exception to a statute, the natural inquiry is whether this defendant is the kind of person the legislature meant to punish, which brings the defendant's own disposition into view. If the defense is a check on police methods, the natural inquiry is whether the tactics used would draw in people who would otherwise stay law-abiding, and that can be answered without looking at the particular defendant. The relevance of a defendant's predisposition is the most significant point of disagreement in entrapment law,¹⁵ and the later sections trace it through the federal test and the Model Penal Code's test.

Neither explanation sweeps in every case where the government played a part, because the law rejects two extreme positions. One argument would apply entrapment whenever the crime would not have occurred but for the officer's request. That is true of every undercover purchase, so the argument would end stings against consensual crime, which often cannot be detected any other way.¹⁶ The opposite argument would deny entrapment whenever the defendant intentionally committed the crime. Every entrapped defendant has done exactly that, so the argument would leave the defense with nothing to cover. Neither extreme has prevailed, and the general rule draws a line between the trap for the unwary innocent, which is entrapment, and the trap for the unwary criminal, which is not.¹⁷

Two corollaries follow from that line. An officer who merely furnishes an opportunity to someone ready and willing to commit the crime has not entrapped that person, and the mere fact of deceit does not defeat a prosecution, since an undercover agent posing as a buyer is necessarily misrepresenting who he is.¹⁸ Reasonable, restrained steps to gain a suspect's confidence are also permitted, because a contrary rule would confine convictions for victimless crimes to the most gullible offenders.¹⁹ In short, the state may set traps for those already bent on crime. What it may not do is instigate crime in people who would not otherwise commit it, or arrange its traps so that they are likely to catch people who are not ready to offend.²⁰

The two poles of the line show which fact does the work. In Sorrells and Sherman the agent originated the criminal design and overcame a defendant's evident reluctance by repeated, persistent pressure, so each defendant was the unwary innocent. At the other pole stands the undercover officer who does nothing more than offer to buy narcotics at the going price from a person he believes to be a dealer. The officer has supplied an opportunity and nothing else, and a dealer who sells at once was ready before the officer arrived.²¹

The variable that moved the answer was whether the defendant's willingness existed before the government's pressure or was produced by it. That is the question every later section of this chapter refines, whether through the Model Penal Code's focus on the government's methods or the federal courts' focus on the defendant's disposition.