Constitutional Limits

Constitutional Limits

The Supreme Court has so far based the entrapment defense on non-constitutional grounds, with some Justices relying on general principles of substantive criminal law and others on the Court's supervisory power over the administration of justice in federal courts.¹ That footing explains why the subjective and objective tests compared earlier can coexist. No constitutional command fixes which test a jurisdiction must use, and although the defense is recognized in the state courts as well, its exact definition varies from one jurisdiction to the next.²

A separate limit does operate at the constitutional level. The Court has acknowledged that law enforcement conduct might become so outrageous that due process principles would bar the government from invoking judicial processes to obtain a conviction at all.³ The two ideas answer different questions. The defense asks whether the government's inducement of this offense excuses it under whichever test the jurisdiction applies, so identical conduct can succeed under one test and fail under another. Due process serves as the backstop for extreme conduct that no test of inducement would capture. The next section takes up the non-constitutional footing of the defense, and the one after it turns to outrageous government conduct.

Not a Constitutional Right

The entrapment defense draws its authority from statutory interpretation, and that source accounts for much of the variation in the defense from one jurisdiction to the next. In Sorrells v. United States and Sherman v. United States, the Supreme Court explained the doctrine by the presumed intention of Congress, and constitutional command played no part in the explanation.⁴ The presumption runs as follows: a legislature that makes conduct criminal is taken to be aiming at people who commit it on their own initiative, so it is presumed not to have meant the statute to ensnare an otherwise innocent person whom abusive government inducement had drawn in.⁵ Legislatures had said nothing about entrapment, so this presumption is a judicial construction that carries a policy judgment, much like the implied exceptions courts read into criminal statutes when the literal terms would produce an unjust result.⁶ In Sorrells the defendant, charged with selling liquor to a government agent in violation of the Prohibition laws, had refused several requests before finally relenting, and the Court held that he should have been allowed to raise the defense.⁷

Because the defense rests on presumed legislative purpose, it is not a constitutional right, and whoever supplies the purpose can reshape it. Congress may therefore depart from the Sorrells-Sherman test if it wishes, and state courts and legislatures may do the same.⁸ The alternative footings that some Justices have preferred lead to the same place. General principles of substantive criminal law are not constitutional text, and the supervisory power is the Court's authority over the administration of justice in the federal courts, so it reaches only those courts.⁹ States may accordingly adopt any test they choose or reject the defense altogether, although all of them currently recognize some form of it.¹⁰ The Model Penal Code shows how much room that leaves. It drops the federal focus on the individual defendant's predisposition and asks whether the government's methods create a substantial risk that the offense will be committed by persons other than those ready to commit it. California took the same position in People v. Barraza.¹¹

The same non-constitutional footing disposes of attempts to turn a state's handling of entrapment into a federal claim. State courts for the most part purport to apply the Sorrells-Sherman test, yet state convictions are sometimes affirmed despite evidence that would amount to entrapment under those decisions.¹² A state prisoner in that position may seek federal habeas corpus, a proceeding in which a federal court decides whether the prisoner's custody violates federal law. Relief on the entrapment point would therefore require that freedom from entrapment be a constitutional right, and the courts have so far answered that question in the negative.¹³ Commentators have proposed constitutional analogies, and one shows the form they take. Under the constitutional doctrine of estoppel, a person cannot be convicted for acting on official advice that the conduct was lawful, as in Cox v. Louisiana, and by extension secret agents are said to be barred from inducing acts the defendant was not predisposed to commit.¹⁴ None of these analogies has persuaded a court to treat freedom from entrapment as a constitutional right.

The conduct is identical in both settings, so the only variable is where the defense comes from. In federal court it comes from the interpretation of federal criminal statutes, and a state's different test is simply a different choice that the Constitution leaves open. Students lose points in two directions here. They treat a state's departure from the federal predisposition test as a constitutional violation, and they also assume that the defense's lack of constitutional status means it can be refused outright, when in fact every state recognizes some form of it.¹⁷

Outrageous Government Conduct

Because entrapment rests on presumed legislative intent rather than on the Constitution, any constitutional limit on investigative methods has to come from another source, and the one the Supreme Court has pointed to is the Due Process Clause. The doctrine that grew from that suggestion is a narrow backstop, and it is best built from the two decisions that gave it shape. In United States v. Russell an undercover agent supplied the defendant and his associates with 100 grams of propanone, an essential but hard-to-obtain ingredient in making methamphetamine, and the defendants produced two batches and gave the agent half as agreed.¹⁹ The defendant conceded that a jury could find him predisposed, so he did not rest on entrapment and argued instead that the agent's role was so substantial that prosecuting him offended due process.²⁰ The Court found it unnecessary to decide whether an agent's supplying an indispensable, otherwise unobtainable means would bar prosecution, because the record showed that propanone was by no means impossible to get elsewhere.²¹ It did acknowledge that it might some day face "a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction."²²

That acknowledgment answers a different question from the one entrapment asks. Entrapment asks whether the government's inducement excuses this offense under whichever test the jurisdiction applies. An outrageous government conduct claim looks at what the government itself did and asks whether the conduct crosses a constitutional line, so its focus falls on the agents and not on whether the defendant was predisposed.²³ That difference explains why the Russell defendant could concede predisposition and still raise the claim. It does not mean the claim is easy to win, as the next decision shows.

In Hampton v. United States the petitioner sold heroin to government agents and asked for an instruction that he must be acquitted if a government informant had earlier supplied him with that heroin.²⁴ Three Justices said the difference from Russell was one of degree and not of kind, even though the government here had supplied the illegal substance that was the very subject of the charge, and they concluded that such conduct toward a predisposed defendant does not violate due process.²⁵ Two concurring Justices agreed that Russell controlled but refused to say that no circumstances, once predisposition was proved, could support a due process bar, and that reservation is why the door stays open.²⁶ The three dissenters would have barred conviction as a matter of law whenever the charge is the sale of contraband provided by a government agent, on the theory that the government was buying contraband from itself through an intermediary and then jailing the intermediary.²⁷ The holding that survives is that due process does not bar conviction for the sale of narcotics supplied to the defendant by a government agent.²⁸ The same is true when one agent supplies the drug and arranges for another agent to buy it back, and when the government supplies a hard-to-obtain ingredient to a defendant already making an illegal drug in exchange for part of the product.²⁹

The reluctance to find a violation has a practical explanation. Consensual crimes such as drug sales are committed privately between willing participants, so ordinary detection methods work poorly, and agents therefore simulate a real opportunity, make repeated requests, build personal relationships with targets, and sometimes help obtain contraband or plan the details.³⁰ A rule that treated every act of supply as a due process violation would condemn those routine methods, and the remedy would be the most drastic one available, because a defendant who is guilty and predisposed would go free on the ground that the investigation was unfair. Courts accordingly reserve the remedy for conduct that makes the government the author of the criminal enterprise itself.

Each fact does separate work. The first separates a government that responds to crime from one that creates it. The second separates the investigation of a suspect from the targeting of a person the government had no reason to doubt. The third asks whether the enterprise could have existed without the government, so that the crime is in substance the government's own product. In Russell the propanone was obtainable elsewhere, which defeats the third fact, and the Hampton plurality rested on the defendant's predisposition.

The outrageous-conduct claim has also failed against a defendant of high station and large inducement. In United States v. Williams, a prosecution arising from the Abscam bribery investigation, a United States Senator argued that the agents had exceeded an outer limit of fairness imposed by the Due Process Clause. The Second Circuit rejected the claim, because despite the enormity of the inducement it did not consider the offer unconstitutional when made to a person with a Senator's experience and sophistication.³² The same idea appears at sentencing. Sentencing entrapment occurs when an agent convinces a defendant to engage in conduct carrying a higher penalty than the conduct the defendant was predisposed to commit, and the related claim of sentence manipulation depends only on what the government did. Some courts have held particularly outrageous government conduct aimed at increasing a sentence to violate due process.³³

Students most often go wrong by offering outrageous conduct as a fallback for a failed entrapment claim. A defendant who loses on the ordinary test, typically because the government proves predisposition, does not gain a second route simply by relabeling the same facts. The claim needs its own facts, namely a government-originated plan, no reasonable suspicion, and the supply of something indispensable and unavailable elsewhere. Supplying material for the crime is not enough on its own, because under federal law even an agent's supply of contraband does not by itself establish entrapment.