The power of a government is abused and directed to an end for which it was not constituted when employed
to promote rather than detect crime and to bring about the downfall of those who, left to their own devices,
might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations
without government adding to them and generating crime.
Justice Felix Frankfurter The subject for this unit is entrapment (1), (2). For some reason, through five editions Dressler's UCL still doesn't deal with the defense of entrapment. He continually leaves us law students hanging out to dry on this one. To me, it makes zero sense to ignore entrapment as a defense since it is a defense at the federal level and also in virtually all the states, including Texas in Section 8.06 TPC and Section 2.13 MPC in one form or another. See Bullets II. I notice, however, that it is not a defense that the U.S. Constitution mandates. We have it in federal courts because of the pronouncements of the USSC. We have it in Texas because our legislature put it in the penal code. Apparently, entrapment is a concept that is pretty much unique to the US and was not part of the English common law or for that matter the law of Western Europe. Hey, we Americans are smart. We have learned the hard way not to put too much trust in government officials, including ones with badges and guns. Many politicians are suspect. (Like papa used to say "politics" is a two part word - poly meaning "many" and tics meaning "blood sucking parasites.") Maybe we should also be almost as wary of the people we allow to have physical authority over us as we are of common street hoodlums in dark alleys and high-ranking executives deceptively urging us to buy more stock in their bankrupt company! Anyway, one of the important things about entrapment is that it only applies to agents of the government, i.e., law enforcement agents and their operatives including informants, but not private persons. (More about that below) Some crimes are comprised of nothing but willing participants. In this sense, there may be no identifiable victims who can be expected to come forward report the crime or otherwise "go the the cops." Such crimes include prostitution, gambling, pornography, and drug trafficking (all those vices that some folks really get off to). Some call these "victimless crimes." [Note: The landmark federal case on entrapment, United States v. Russell, 411 U.S. 423 (1973), involved an undercover sting to arrest some meth cookers. Allow me to say that I know some good people who have had their lives ruined by meth. If you don't know about this highly destructive drug, look at the documentary World's Most Dangerous Drug VIDEO . Some drugs are not "victimless."] If we expect law enforcement to apprehend and courts to prosecute wrongdoers in these so-called "victimless crimes," it becomes necessary to use undercover officers (1 - the law enforcement rationale), (2 - drug law enforcement from the crime control perspective) and informants (1 - the law enforcement view) (To the defense, informants are known as "snitches" or "rats.") to become active participants in the planning and commission of the crime. If there were no legal right for the law enforcement agents or operatives to be participants in the offense, the officers might be viewed as complicitors (parties, accomplices, principals) in the crime. Of course, many of us believe that "Every man (or woman) has his (or her) price." If you can find out what that price is and agree to pay it, you can get people to do lots of things that may be defined as criminal. See the federal cases of Lopez v. United States, 373 U.S. 427 (1963) and Osborn v. United States, 385 U.S. 323 (1966) discussing the use of informers.
The early American C/L didn't provide for the defense of entrapment. The defense got its legs in federal court when the USSC in the 1932 case of Sorrells recognized that the government couldn't conceive an offense and procure its commission by one who wouldn't have perpetrated it except for the persuasion and inducement of the government agent.
The entrapment defense seeks to strike a balance between what the law enforcement folks may do by way of investigation and what they cannot do by way of instigation of crime.The reasons for having such a defense are apparently to put a lid on how active the law enforcement community can be in improperly creating crime and to be sure that we are focusing our law enforcement resources on evil-minded crooks rather than using our resources to bend otherwise law-abiding folks into criminals by using overwhelming government pressure. When the government pushes our buttons to induce us to commit crime, entrapment may come into play as a defense. [I personally think everyone has a breaking point beyond which they will commit a crime. The folks in power just have to know what buttons to push - some of the buttons are money, power, sex, fame, greed, hate, fear, ethnicity, and religion.]
One thing I need to remember is that entrapment won't even be an issue unless there is an agent of the government involved in allegedly inducing the defendant to commit the offense. Notice that this would include not only a law enforcement agent, but also anyone acting under instructions from a law enforcement agent. So, as a private person, I can't entrap anyone, and a private person cannot entrap me in a way that the criminal law recognizes as an entrapment defense.
There are two views or approaches to the defense of entrapment. The first is the "subjective test" that focuses on the accused's predisposition or propensity to engage in the wrongdoing. It is based on the idea of drawing a line between the so-called "unwary innocent" and "unwary criminal." This subjective test allows the prosecution to show bad character evidence reflecting on the likelihood that the accused was predisposed to commit the crime, e.g., proof of prior convictions or prior bad acts or misconduct. The second approach is the "objective test" that focuses on the conduct of the law enforcement agent. I need to recheck MPC Sec. 2.13 for the objective "law abiding person" test, i.e., "persons other than those who are ready to commit it." The MPC follows the objective approach, looking principally at what the government did and not at the defendant's predisposition. Instead, the MPC inquiry focuses on what influence the government's conduct (inducement) would have on a law-abiding person, i.e., whether it would have induced a law abiding non-predisposed person to commit the offense
In a sense, entrapment is like an exclusionary rule that excludes evidence because of police misconduct, except entrapment is a complete defense. I may also read the professor's analysis of entrapment in his Guns material on reserve in the library. Someone said it contains an analysis of the federal rule of entrapment, the MPC test, and the TPC Sec. 8.06 entrapment test along with the Texas case styled England v. State, which presently "interprets" the Texas test as a largely subjective one, even though the same exact test was previously interpreted by an earlier court as being an objective test. [That makes me remember the Texas Monthly Article I saw in the November 2004 Issue, where they asserted that the Texas Court of Criminal Appeals is the "worst court in Texas" and that it is "ruled by a bunch of pro-prosecution, right-wing ideologues with one goal in mind: keeping inmates behind bars, no matter what." The Bushrod reaction is - maybe they've got the right idea.] Under the subjective test, police seem to be allowed to use special inducements to lure or target people with a known criminal history. [My question: Is it fair to add a bigger bait to hook the fish that is admittedly the hungriest? It seems like the guy with a prior record is dead meat for the undercover cop's table.] Using the defense of entrapment in a subjective (predisposition) test jurisdiction is risky for the defendant if the defendant has priors or a history of violations or clear motive to commit the offense because the character issue of subjective predisposition will allow the prosecution to introduce evidence to the jury of the prior convictions for similar offenses and prior acts of misconduct by the defendant that indicate a predisposition and evidence of motive to commit the offense; whereas, this evidence wouldn't be admissible as part of the entrapment issue in jurisdictions that follow the objective MPC test. Also, I plan to read the law about when you can claim entrapment and still testify that you didn't do the crime. [TX: no - Hubbard v. State, 770 S.W.2d 31 (Tex. App - Dallas 1989); McEntyre v. State, 717 S.W.2d 140 (Tex. App. - Houston [1st] 1986); Garrett v. State, 625 S.W.2d 809 (Tex. Crim App. 1981); Reed v. State, 421 S.W.2d 116 (Tex. Crim. App. 1967); Federal: yes - Mathews v. United States, 485 U.S. 58 (1988)] This Jacobson case, the one about the Bare Boys magazines (1 - article re Jacobson) and the sequacious 56-year old veteran tuned rural farmer, seems to require under the federal subjective (predisposition) test that the government must establish that the defendant was predisposed to commit the offense and that the defendant's predisposition was not the product of government conduct; also, the Jacobson case makes it clear that even under the federal subjective test the prosecution must show that the defendant was predisposed before the government went to work on him. In other words, if he becomes predisposed only because of government conduct, he is considered as not being predisposed and is entitled to claim entrapment under the federal subjective entrapment test. Other older federal entrapment cases are Sorrells v. United States, 287 U.S. 435 (1932); Sherman v. United States, 356 U.S. 369 (1958); Osborn v. United States, 385 U.S. 323 (1966);and Hampton v. United States, 425 U.S. 484 (1976). The case of Mathews v. United States, 485 U.S. 58 (1988) held that the defense of entrapment is available in federal court to defendants who deny the existence of one or more elements of the crime.whenever there is sufficient evidence from which a reasonable jury could find entrapment.
Obviously it makes sense to set a thief to catch a thief. But, one of the things that bugs me about using informants to catch crooks is that our government (the guys who carry badges and guns, while the rest of us carry umbrellas and lunch pails) may use big crooks to catch little crooks and let the big crooks "walk" for their help. Why use sharks to catch minnows? Somehow that seems wrong.
In Texas, entrapment is a defense. That means the defense has the burden of raising the issue (production), but, once raised, the prosecution must prove beyond a reasonable doubt (the burden of persuasion) that the defendant was not entrapped. The same is true in federal court. Of course, some jurisdictions keep the burden of persuasion on the defense.
The constitutionally based due process "outrageous government conduct" defense, hinted at in Russell, appears not to have gained any widespread acceptance. [Note: Remember that Rehnquist's opinion had said in dictum, "While we may some day be presented with 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, the instant case (i.e., Russell) is distinctly not of that breed."] The idea was that wholly aside from entrapment there would be some situations where the conduct of the government in involving itself in criminal activity would be so egregious and forbidden that due process would bar conviction of the defendant who might be precluded from the entrapment defense because of predisposition. This argument turned out to be a non-starter and was subsequently repudiated by Rehnquist in Hampton It looks like all that defendants have is the non-constitutionally based defense of entrapment. [My question is this: Isn't the policy of preventing "outrageous government conduct" already built into the Section 213 MPC objective test of entrapment? To me, it seems to be.] Looking ahead - It looks like we are getting ready to make another major change of topics. I am reading ahead and notice that the next three readings cover what might be called constitutional due process or constitutional criminal procedure, .i.e., the application of provisions of the Bill of Rights to defendants in the criminal justice process and the implications of delivering certain basic and fundamental procedural rights to accused criminal defendants across the U.S. in both federal and state court proceedings. In the readings that follow those, we discuss the inchoate crimes of solicitation, conspiracy, and attempt and then examine the theory of complicity that allows one person to be held vicariously criminally liable for the crimes of another.