Two Forms of Entrapment

Two Forms of Entrapment

The previous section settled who may entrap and why. Section 2.13(1) next asks how that person brought the offense about, and it names two methods joined by "or." The government actor must induce or encourage the conduct either by making knowingly false representations designed to induce the belief that the conduct is not prohibited, or by employing methods of persuasion or inducement that create a substantial risk that the offense will be committed by persons other than those ready to commit it.¹ Because the methods are alternatives, a defendant who proves either one satisfies the inducement requirement. The false-legality form is therefore a separate kind of entrapment that does not depend on how much pressure was applied. A defendant who cannot show a false claim about the law may still rely on the persuasion form, and the reverse is equally true.

The two forms address one evil, a criminal act that is the product of government creativity rather than the actor's own choice. They reach it by different routes, and each route calls for a different kind of proof. The first form removes culpability that rests on a mistake the government deliberately induced about what the law forbids, so the evidence concerns what the agent said, whether it was false, and whether the agent knew it was false. The second form removes culpability that rests on pressure strong enough to draw in people who would otherwise have resisted, so the evidence concerns the quality of the agent's methods. The yardstick for that pressure is a population of people who are not ready to offend. It is not the particular defendant's own history, a point the later section on objective and subjective tests develops.² The next two subsections take the forms in the order the Code states them, beginning with false claims of legality.

Knowingly False Legality Claims

The first form of inducement in § 2.13(1) concerns deception about the law. Under paragraph (a), a qualifying government actor entraps by making knowingly false representations designed to induce the belief that the conduct is not prohibited.⁴ This is a distinct kind of entrapment, one that exists whenever a government agent knowingly tells the target that the act in question is legal. The clause carries three qualifiers, and the checklist below arranges them as questions asked in order, after the threshold requirement from the previous section.

The third and fourth questions do the real work. Falsity is usually easy to establish once the agent's words are on the record, while knowledge and design turn on what the agent understood and intended.⁵

The reason this prong exists is that it carves a narrow exception out of the ordinary rule that ignorance of the law is no excuse.⁶ A defendant who simply misunderstood a statute ordinarily has no defense, because the misunderstanding was the defendant's own. A person who commits the offense because a government agent deliberately said it was lawful has not chosen to defy the law, and the mistake came from the state itself, which created it in order to build a prosecution. If conviction followed anyway, officials could manufacture culpability by lying about what the law forbids, and an officer whose goal is a completed case has an obvious temptation to say whatever closes the sale. Denying the conviction removes that gain at the source.

Two of the qualifiers keep that reasoning from spreading too far. Knowing falsity separates the officer who abuses the investigative role from the officer who merely gets the law wrong. An honest official's mistaken advice involves no one who set out to exploit the target, so nothing in the state's conduct calls for deterrence, and the target stands where anyone stands who relied on bad advice. The design requirement does a different job by tying the lie to the legality of the conduct. Undercover work runs on deception, as the earlier discussion of the entrapment line showed, and a lie about the agent's identity or resources leaves the target's understanding of what the law prohibits untouched. The state has then caused no mistake about legality, so no defense arises from it.

This form is rarely litigated, and the reason lies in how stings are run. Most target offenses such as drug and liquor sales, prostitution, and gambling, and the encouragement in them is frequently little more than a feigned offer to buy.⁷ An agent making that offer has no need to say anything about legality, and a target who deals in contraband usually knows the conduct is forbidden. The disputes that reach courts therefore tend to concentrate on the second form, which asks how much pressure the agent applied. The two forms police different things. Paragraph (a) polices deception about legality, and a single well-chosen false assurance can satisfy it with no pressure at all, while paragraph (b) polices temptation, so relentless pleading that includes no false claim about the law belongs there.⁸

A neighboring doctrine should be kept separate from this prong. When a defendant reasonably relies on an official statement of the law that later proves wrong, and the statement comes from the public official charged with interpreting or enforcing the law that defines the offense, many jurisdictions recognize a defense that the federal courts call “entrapment by estoppel,” and Model Penal Code § 2.04(3)(b) codifies one version of it.⁹ In the manslaughter prosecution of the Twitchells, parents who had relied on spiritual treatment, the court considered whether they had been officially misled by an Attorney General's opinion that arguably said too little about homicide liability, and it described the defense as resting on fairness principles grounded, in federal criminal cases, in the Due Process Clause of the Fifth Amendment.¹⁰ The inquiry there is the defendant's reasonable reliance on an official pronouncement. It does not ask whether the official knew the pronouncement was wrong or was gathering evidence, so an official's honest error can support it.

The two doctrines therefore sort a particular fact pattern differently. An honest official's mistaken legal advice falls outside § 2.13(1)(a) because the representation was not knowingly false, yet it may support estoppel if the target's reliance on an authoritative official statement was reasonable.¹¹ The estoppel idea has also been offered as an analogy for treating freedom from entrapment as a due process right, but courts have so far declined to recognize such a right, a question taken up at the end of this chapter.¹²

Persuasion Creating Substantial Risk

The second form of inducement in § 2.13(1) moves from deception to temptation. Paragraph (b) makes a qualifying government actor an entrapper by “employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.”¹⁵ Three phrases carry the meaning. The words methods of persuasion or inducement direct attention to what the agent actually did to bring the offense about. The words substantial risk make the measure one of likelihood, so the question is how probable it was that those methods would produce the offense, and certainty that they would is not required. The words persons other than those who are ready to commit it name the comparison group, which consists of people who were not already prepared to offend, and that group is what the court must picture when it asks how risky the methods were.

The reason the test is built around the unready begins with the kind of crime that undercover work targets. Drug sales, prostitution, and gambling are committed between willing participants, so no victim complains, and the police often catch offenders only by providing the opportunity.¹⁶ An officer who plays that part must seem like a willing participant, which means encouragement as such cannot be condemned without ending the investigations.¹⁷ What the rule can condemn is encouragement that changes who commits crime. A method that attracts only people already prepared to offend finds crime that was going to happen anyway, while a method that would also pull in people who would otherwise resist manufactures crime that would not exist but for the officer.¹⁸ Measuring methods against the unready also gives officers a standard they can follow in advance, since an agent knows which methods are planned and can ask what they would do to an ordinary unwilling person, but cannot know beforehand how ready a particular target is.

The permitted side of the line is easiest to see with an ordinary offer to buy. A dissenting opinion in People v. Moran, a California Supreme Court decision, reasoned that law-abiding citizens would not ordinarily be seduced into narcotics trafficking by an officer's offer to purchase, whereas the same offer is quite likely to produce a sale when made to someone prepared to sell.¹⁹ Because the offer draws in only the ready, it creates no substantial risk for anyone else, and the opinion concluded that such an offer “without more” would not be entrapment.²⁰ That opinion states the reasoning of the objective test and was not the court's holding. The qualifier matters because it marks the plain offer as a baseline that added methods can push across the line, and the next paragraph describes what those additions look like.

The additions that draw suspicion are those that give a person a reason to offend unconnected to being ready for the crime. Appeals to sympathy or friendship, offers of inordinate gain, and persistent offers that overcome hesitancy are the tactics courts regard as suspect.²¹ Frequent entreaties after initial refusals, continuing appeals to sympathy, and promises of excessive profit are likewise the stratagems that might induce law-abiding people to commit a crime.²² Each one works on someone other than the ready. Sympathy and friendship supply a motive rooted in pity or loyalty, an outsized payoff makes the temptation larger than the ordinary market would ever present, and repeated pleading wears down a refusal that would otherwise have held. A person ready to offend needs none of these, so their presence suggests the agent was reaching for people who were not.

Suspect does not mean forbidden. Courts applying the objective test have been reluctant to lay down absolutes, and each case is judged on its own facts, including the manner in which the particular criminal business is usually carried on.²³ That last factor keeps the analysis realistic, because people engaged in crime are generally suspicious of strangers, so agents typically do more than approach a target once, and multiple requests or the building of a personal relationship may be needed to overcome that suspicion.²⁴ A second or third approach in a wary market may therefore be no more than the way that business is ordinarily done, while the same persistence aimed at a person in a setting where nobody expects such overtures would amount to heavy pressure. Students lose this point when they treat any single tactic as automatic entrapment, because the text asks about risk to the unready, and a tactic creates that risk only in light of the setting and the target.

Sherman v. United States supplies the model of the prohibited side. The informant there met the defendant while both were seeking treatment for addiction, feigned an addiction of his own, and repeatedly pleaded with the defendant to help him get drugs to relieve his suffering.²⁵ The defendant at first refused, then gave in, and while sharing the drugs with the informant he returned to his own addiction.²⁶ The methods combined friendship, sympathy, and persistence, and they were aimed at a person who was trying to stay away from drugs. That pressure creates a substantial risk that a person who was not ready to sell would yield, because the pleas drew on compassion and a shared struggle, which are motives a person with no wish to deal can still have. One wrinkle is that the Court decided Sherman under the federal predisposition test, finding the government's proof of readiness inadequate because it rested on a nine-year-old sale conviction and a five-year-old possession conviction.²⁷ The next section takes up that difference, and for present purposes the case matters for its inducement facts, which fit the Code's second form closely.

Because paragraph (b) measures risk to persons other than the ready, the defendant's own history of readiness is not the yardstick under the Code. A defendant who relies on this form therefore has to point to methods powerful enough that they might induce an ordinary law-abiding person to commit the crime, and the prosecution's natural reply is that the agent used no persuasion and only followed up on the defendant's own inclination.²⁸ The next section sets this focus on the government's methods beside the federal courts' focus on the defendant's predisposition.