The entrapment defense is not constitutionally safeguarded and raises no constitutional issue unless a guilty defendant claims that law enforcement conduct violates the fundamental fairness mandated by due process of law; if such a constitutional defense were to be recognized by the Supreme Court the effect would, like an exclusionary rule, be aimed at deterring unlawful police conduct.
Entrapment is a means of securing evidence to convict by luring a person into the commission of a crime of which he is suspected. Ordinarily the duty of an officer of the law is to deter crime and apprehend those who commit it, not to incite or instigate it. Certain offenses of a clandestine or consensual character, however, are difficult to expose and punish except by some degree of covert government participation. Official deceit is not necessarily illegal or unconstitutional. Undercover police work is particularly effective in uncovering crimes that involve gambling, drugs, prostitution, and official corruption. Nevertheless the government should not fight crime with crime.
When an undercover officer has gained the confidence of a radical organization and encouraged its members to engage in terrorist activities and provided them with the weapons and explosives to do so, he has become an agent provocateur who has conceived and procured the commission of a crime that would not have occurred but for him. If an officer posing as an imposter approaches a law-abiding person with no criminal record and induces him to smuggle contraband, the officer has passed the law's tolerance and the smuggler's guilty conduct may be legally excusable. When entrapment goes too far, it creates a legal defense which, like insanity or killing to save one's own life, merits a verdict of not guilty. The question in any case is whether the evidence shows that entrapment is a sufficient defense by a person who has in fact committed the crime charged against him. The mere fact that a government agent provides a favorable opportunity to one willing and ready to break the law is not entrapment for the purpose of making good a defense; if, however, the defendant had no previous intent to commit the offense and did so only because the police induced him, the verdict should be an acquittal.
Entrapment comes before the Supreme Court as a nonconstitutional defense in cases involving federal crimes. The Justices have always divided into two wings: one focuses on the criminal intent or predisposition of the defendant to commit the crime; the other focuses on the conduct of law enforcement officers. The view that has always prevailed, from the first case, Sorrells v. United States (1932), to Hampton v. United States (1976), is that it is no entrapment for the police merely to instigate the crime; they must also instigate its commission by luring an innocent person with no previous disposition to commit it. The criminal design, as Chief Justice charles evans hughes said in 1932, must originate with the authorities who implant the predisposition in the mind of an otherwise innocent person and incite him to commit it so that they may prosecute. Thus, in United States v. Russell (1973), the Court sustained the conviction of the manufacturer of an illegal drug, who claimed that the government had violated due process when an undercover agent supplied him with an essential chemical ingredient. But the ingredient was harmless, its possession was not illegal, and, above all, the defendant was already engaged in the criminal enterprise. In Hampton, however, a government informant supplied an illegal drug and arranged its sale by the defendant to undercover agents. Although the government deliberately set him up, the Court stressed that his previous propensity to commit the crime negated his entrapment defense. He was, in a phrase of Chief Justice earl warren, "an unwary criminal" rather than an "unwary innocent."
Justice william h. rehnquist wrote the entrapment opinions of the burger court, from which Justices potter stewart, william j. brennan, and thurgood marshall dissented. The dissenters insisted that the majority's focus on the criminal's predisposition is "subjective," and they preferred an "objective" test: whether, despite predisposition, police conduct instigated the offense. The objectivity of that view, however, can be deceptive, and it ignores criminal intent. Doubtless, though, the trend of decision has made the entrapment defense nearly useless if a jury does not accept it. If the "outrageousness" of police conduct should pass the threshold of judicial tolerance in some future case, the Court may find a due process basis for the entrapment defense.
Leonard W. Levy
Dunham, Dan S. 1977 Hampton v. United States: Last Rites for the "Objective" Theory of Entrapment? Columbia Human Rights Law Review 9:223–262.
O'C onner, Peter J. 1978 Entrapment versus Due Process: A Solution to the Problem of the Criminal Conviction Obtained by Law Enforcement Misconduct. Fordham Urban Law Journal 7:32–53.
Rossum, Ralph A. 1978 The Entrapment Defense and the Teaching of Political Responsibility. American Journal of Criminal Law 6:287–306.