Entrapment.—Certain criminal offenses, because they are consensual actions taken between and among willing parties, present police with difficult investigative problems.1004 Thus, in order to deter such criminal behavior, police agents may "encourage" persons to engage in criminal behavior, such as selling narcotics or contraband,1005 or they may may seek to test the integrity of public employees, officers or public officials by offering them bribes.1006 In such cases, an "entrapment" defense is often made, though it is unclear whether the basis for the defense is the due process clause, the supervisory authority of the federal courts to deter wrongful police conduct, or merely statutory construction (interpreting criminal laws to find that the legislature would not have intended to punish conduct induced by police agents).1007

1004 Some of that difficulty may be alleviated through electronic and other surveillance, which is covered by the search and seizure provisions of the Fourth Amendment, or informers may be utilized, which also has constitutional implications.

1005 For instance, in Sorrells v. United States, 287 U.S. 435, 446-49 (1932) and Sherman v. United States, 356 U.S. 369, 380 (1958) government agents solicited defendants to engage in the illegal activity, in United States v. Russell, 411 U.S. 423, 490 (1973) the agents supplied a commonly available ingredient, and in Hampton v. United States, 425 U.S. 484, 488-89 (1976) the agents supplied an essential and difficult to obtain ingredient.

1006 For instance, this strategy was seen in the "Abscam" congressional bribery controversy. The defense of entrapment was rejected as to all the "Abscam" defendants. E.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v. Williams, 705 F.2d 603 (2d Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d Cir.), cert. denied, 457 U.S. 1106 (1982).

1007 For a thorough evaluation of the basis for and the nature of the entrapment defense, see Seidman, The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, 1981 SUP. CT. REV. 111. The Court's first discussion of the issue was based on statutory grounds, see Sorrells v. United States, 287 U.S. 435, 446-49 (1932), and that basis remains the choice of some Justices. Hampton v. United States, 425 U.S. 484, 488-89 (1976) (plurality opinion of Justices Rehnquist and White and Chief Justice Burger). In Sherman v. United States, 356 U.S. 369, 380 (1958) (concurring), however, Justice Frankfurter based his opinion on the supervisory powers of the courts. But, utilization of that power was rejected in United States v. Russell, 411 U.S. 423, 490 (1973), and by the plurality in Hampton, 425 U.S. at 490. The Hampton plurality thought the due process clause would never be applicable, no matter what conduct government agents engaged in, unless they violated some protected right of the defendant, and that inducement and encouragement could never do that. Justices Powell and Blackmun, on the other hand, 411 U.S. at 491, thought that police conduct, even in the case of a predisposed defendant, could be so outrageous as to violate due process. The Russell and Hampton dissenters did not clearly differentiate between the supervisory power and due process but seemed to believe that both were implicated. 411 U.S. at 495 (Justices Brennan, Stewart, and Marshall); Russell, 411 U.S. at 439 (Justices Stewart, Brennan, and Marshall). The Court again failed to clarify the basis for the defense in Mathews v. United States, 485 U.S. 58 (1988) (a defendant in a federal criminal case who denies commission of the crime is entitled to assert an "inconsistent" entrapment defense where the evidence warrants), and in Jacobson v. United States, 503 U.S. 540 (1992) (invalidating a conviction under the Child Protection Act of 1984 because government solicitation induced the defendant to purchase child pornography).

The Court has employed the so-called "subjective approach" in evaluating the defense of entrapment.1008 This subjective approach follows a two-pronged analysis. First, the question is asked whether the offense was induced by a government agent. Second, if the government has induced the defendant to break the law, "the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents."1009 If the defendant can be shown to have been ready and willing to commit the crime whenever the opportunity presented itself, the defense of entrapment is unavailing, no matter the degree of inducement.1010 On the other hand, "[w]hen the Government's quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would never run afoul of the law, the courts should intervene."1011

1008 An "objective approach," while rejected by the Supreme Court, has been advocated by some Justices and recommended for codification by Congress and the state legislatures. See American Law Institute, MODEL PENAL CODE § 2.13 (Official Draft, 1962); NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, A PROPOSED NEW FEDERAL CRIMINAL CODE § 702(2) (Final Draft, 1971). The objective approach disregards the defendant's predisposition and looks to the inducements used by government agents. If the government employed means of persuasion or inducement creating a substantial risk that the person tempted will engage in the conduct, the defense would be available. Sorrells v. United States, 287 U.S. 435, 458-59 (1932) (separate opinion of Justice Roberts); Sherman v. United States, 356 U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v. Russell, 411 U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton v. United States, 425 U.S. 484, 496-97 (1976) (Justice Brennan dissenting).

1009 Jacobson v. United States, 503 U.S. 540, 548-49 (1992). Here the Court held that the government had failed to prove that the defendant was initially predisposed to purchase child pornography, even though he had become so predisposed following solicitation through an undercover "sting" operation. For several years government agents had sent the defendant mailings soliciting his views on pornography and child pornography, and urging him to obtain materials in order to fight censorship and stand up for individual rights.

1010 Sorrells v. United States, 287 U.S. 435, 451-52 (1932); Sherman v. United States, 356 U.S. 369, 376-78 (1958); Masciale v. United States, 356 U.S. 386, 388 (1958); United States v. Russell, 411 U.S. 423, 432-36 (1973); Hampton v. United States, 425 U.S. 484, 488-489 (1976) (plurality opinion), and id. at 491 (Justices Powell and Blackmun concurring).

1011 Jacobson v. United States, 503 U.S. 540, 553-54 (1992) (pre-indictment); Stovall v. Denno, 388 U.S. 293 (1967) (post-arrest).

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