Entrapment ... Good, bad, indifferent?

Great Debates
1

As I understand it, entrapment occurs when the police induce someone to commit a crime they otherwise wouldn’t be predisposed to commit.

(As a good starting place for this debate, if anyone has a better/more accurate definition, please post ASAP. I’m working on general knowledge here.)

Personally, I don’t have a problem with entrapment. The police are doing something wrong if you weren’t “predisposed” to commit the crime?! Well, the effective defense against entrapment is – don’t do it.

Undercover Policeman: Hey dude, wanna help finance a drug shipment?
Non-predisposed individual: No, but thanks for asking!
I agree that it’s a waste of police resources to go after people who otherwise wouldn’t commit a crime, but these “victims” still did something bad by going along.

And how the hell do you tell whether someone’s “predisposed” or not?! Only go after convicted criminals? Or should the cops just use a good old racial profile?

Discuss.

Sua

2

Feh. We’ve got enough criminals out there, without having the police manufacture more. Stupid activity.

3

No argument here, Qadgop. But my question isn’t whether it’s stupid, but whether it should be a defense for the “entrapped” individual.
And I can think of situations where an non-predisposed person isn’t the target of the sting. That person gets arrested along with a bunch of “predisposed” people who also fell for the sting. I don’t think the non-predisposed person should beat the rap.

Sua

4

You make a good point, SuaSponte. A morally-sound individual will not be affected by police agent provocateurs (or agents provocateur?), so if you fell for the scheme, you’ve obviously done something bad.

I think the “entrapment defense” is analogous to the “unlawful search defense” (the exclusionary rule). It’s not so much that the confused did nothing wrong. It’s much more, that the police shouldn’t be doing anything wrong. A conviction should not, so the theory goes, arise from an illegal act by police officers.

Here’s a parable of the unlawful search defense:
You’re driving your brown '42 Suburban down the road at 56mph. A cop has heard that brown Suburbans are always driven by Tibetans, and he hates Tibetans. So he pulls you over for speeding, and asks to see in your glove compartment. You tell him, “Sorry officer, I won’t open my glove compartment.” So he reaches past you and opens it, finding a whole bunch of crack. He arrests you. Should you be convicted?

The officer had no right to search your car. All he knew you had done was violate the speed limit by 1 mph. The courts throw out the case, since all the evidence he has you on was illegally obtained. Did you do something wrong? Sure, but the state had to trample all over your rights to find out. The courts hate that, and they have chosen to quash prosecutions resulting from it.

One advantage I think the judicial interdict gives us is, it keeps cops on the straight and narrow. Here’s another parable:
An undercover cop from the municipal police department is trying to catch hookers. He poses as a john. His idea is to get on tape an offer of illegal sex - then arrest the hooker.
The sheriff’s department has overlapping jurisdiction. They too are trying to get prostitution convictions - from the other side. They dress up a deputy in stereotypical hooker clothes and get her to walk the streets.
You know where this is going. Without the entrapment rule, you could hypothetically have a situation where the cops try to arrest each other. If both cops are following the letter of the law, nothing of the sort should happen - because suggestions of illegal activity should not come from law enforcement.

Why is this an advantage? Because the cops are there to protect us. Deputy Jones dresses up in ridiculously short skirts to protect all the innocent women who happen to dress like a stereotypical prostitute for reasons of personal choice. If she happens to ask Officer Smith how much he’s willing to pay for sex, she’s no longer protecting innocent women. If she weren’t a Deputy, Officer Smith would take her downtown in matching bracelets.

Don’t get me wrong, I’m not saying that the “cops arresting each other” scenario is the practical reason for the entrapment defense; there is no reason why the sheriff and the police chief couldn’t just coordinate their undercover efforts. I’m saying it’s an important symbolic reason. If the cop does something that would be illegal if he or she weren’t a cop, it is hardly logical for the civilian to get in trouble for it.

(If the entrapment defense has been misused in individual cases, well that is bad, but I don’t know much about individual cases.)

5

Replace “confused” with “accused”.

6

Deputy Smith, miniskirted, stand on Main street under the street light, behavior associated with hooking, as a decoy. Citizen SuaSponte (just to pick at random) is walking along Main street, heading to buy cookies for his youth prayer meeting. Deputy Smith engages him in conversation, and, with wiles and allurements, tempts him into making an offer of a cash consideration for a sexual favor. Blam, bang, bust. Entrapment.

Deputy Smith, etc., and Citizen John, lurking with the intent to purchase his rocksoff, engages Dept. Smith in conversation and etc. Not entrapment. Citizen John went to Main Street to buy some, in the first place.

7

I’m opposed to entrapment, but I think that’s largely because I’m opposed to arresting people for consensual crimes.

8

I don’t see any real justification for entrapment of any sort. To do so, you have to claim that the police exist not only to enforce all actual infractions of any laws by anyone, but to enforce against any willingness to commit any infractions. Who’d be left outside of jail if that were carried to its logical extreme? If not carried to an extreme, then is there any reasonable place to stop along the way?

No, I agree that police exist primarily to protect society against actual danger. There are enough actual crimes committed to more than take up their entire attention without creating new ones.

9

SuaSponte

Perhaps you could clarify the definition a bit. My impression has always been that the following scenario is not entrapment:

Undercover Policeman: Hey dude, wanna help finance a drug shipment?
Individual: Come to think of it, it sounds like a good idea.

This individual was not otherwise intending to get involved in the drug business, but is “predisposed” by virtue of the fact that he readily agreed. My impression is that entrapment goes more like this.

Undercover Policeman: Hey dude, wanna help finance a drug shipment?
Individual: No, not really.
UP: Why not? It’s a great idea.
I: This or that reason etc. etc.
UP: Yeah, but etc. etc.
I: OK, I guess it’s a good idea after all.

In this case, the individual is not “predisposed” to the crime, but was persuaded by the cop, which constitutes entrapment. As such he cannot be convicted. This makes alot of sense to me. If I am wrong about the definition, I would agree with you.

10

I know next to nothing about criminal law (other than what I learn from TV!)

Black’s defines entrapment as:
“The act of officers or agents of the government in inducing a person to commit a crime not contemplated by him, for the purpose of instituting a criminal prosecution against him.”
Doesn’t add much to the discussion.

I remember being troubled with some instances of “entrapment” when I took crim law in school. My vague recollection is that my objection came when all the “target” provided was his “predisposition” - or moral weakness if you will. I seem to recall cases where prosecutions were upheld where the cops provided both the idea and the opportunity to lawbreaking.

Many of us “fantasize” about illegal and possibly immoral activity. But we would never think of taking concrete steps to act on those thoughts. And perhaps we are fortunate that we do not regularly encounter tests of our will - the bag of cash that fell off the armored truck for example. I am troubled by the idea of LEOs randomly testing the population in this manner.

Perhaps if the specific target was chosen because of his past behavior. That could be documented beforehand and subsequently introduced when the defense of entrapment is raised. Say, the cops learn from a reliable source that someone is selling drugs. I don’t believe it is entrapment for an undercover cop to purchase from him.

I think one distinction I would favor is that the cops should be “approached” by the target, either directly, or through the obtaining of information as suggested above. It seems to me that there is a world of difference between a cop dressed like a hooker being approached by a john, and the same cop/hooker aggressively propositioning passersby.

Here’s a scenario. I’m sure we could come up with a million of them. Should the cops leave an expensive car on a busy street unlocked with the engine running, just on the chance that someone will hop in and take it leading to a car theft arrest?

11

From the Merriam-Webster’s Dictionary of Law, courtesy of FindLaw (emphasis added)

I think this tends to support my earlier statements.

(As I look at the preview, I see that the link doesn’t work properly. But if you use the lookup function, it will give you the same results).

12

The distinction as it was best explained to me rests on this question: Is the LEO fostering the desire to commit the crime or merely the opportunity? This is a fuzzy line, to be sure, but that’s why we pay all them fancy law-yers.

My opinion in the former case is that any government LEO has a responsibility to uphold the law that is bigger than a john or a single drug deal. If there is the slightest chance that the crime may not have been committed without the LEO’s involvement, that is too much for me. Because at that level, the LEO is enabling crime. Tell me that seven genuine criminals get busted for every nimrod entrapped, and I’ll tell you, politely, excrement. In a system that still describes itself as rehabilitative, a LEO encouraging a pattern criminal to commit another crime or a recordless citizen to commit their first should be criminal itself.

13

Thanks, Izzy, that helps frame the debate much better.
First off, let’s get rid of situations where the person is induced via fraud. I think we can agree that that is improper, and there may be intent issues, as well.
But undue persuasion? C’mon. Did this work when you were busted by your parents growing up? “I didn’t want to play with the firecrackers, Mommy, but Timmy said it would be all right.” Nice try, kid. I’ll see you in two weeks when you’re not grounded any more.
And that’s my whole problem right there. I agree there may be issues with victimless crimes and the like, and I certainly agree it’s a waste of resources (and likely morally wrong) to go after non-criminals.
Let me give you (an admittedly silly) hypothesis. Robert DeBanque is a notorious armed robber. Due to his skillful planning, he never leaves enough evidence behind to get arrested, even though the cops know he did it. To get this dangerous man off the streets, the cops set up a sting - they pretend to be planning a major heist, and set up a meeting with DeBanque. DeBanque’s cousin, a complete innocent, is in town, and DeBanque brings him along to the meeting.
It turns out DeBanque is busy on the day the robbery is planned, and says no. The undercover cop, not knowing who the cousin is, but assuming he’s part of DeBanque’s gang, turns to the cousin and invites him to join in the robbery. The cousin is very reluctant, but finally agrees. The police complete the sting, and arrest the cousin.
Should the cousin get off? In this scenario, the police weren’t randomly going after innocents - they knew who they wanted. They ended up ensnaring an otherwise innocent man, but they didn’t know that.
The whole defense seems to me to be based on “humans are weak, and we shouldn’t punish people for not having the willpower to say no to temptation.” Fine, people are weak, but that doesn’t stop us from punishing them. The alcoholic who drives drunk, the kleptomaniac who gets busted shoplifting - they get prosecuted. Why not the cousin?

Sua

14

Sua,

What difference does it make if this guy was the original target? The government unintentionally abused the guy by enticing him into a crime that he was not predisposed to commit. It is not right for that same government to turn around and put him in jail for this very same crime. (The alcoholic who drives drunk and your other examples are not prodded into their action by the government).

15

OK, Sua, I’ll give you a real-life example.

Someone I knew used to smoke pot. As do many tokers around here, he would buy &/or sell pot in coordination with others (i.e., several friends chip in to buy because it’s cheaper in quantity, which generally means that one or two people are buying a fairly large amount because dealers won’t sell to you if you bring ten people along). He was never a ‘dealer’ or ‘pusher’ in the classic selling-on-the-street sense.

Let’s call my friend Buster, since I ain’t gonna give you his real name.

Buster quit smoking pot entirely. As a result, he also quit purchasing pot for himself or his friends. He had been smoke-free for almost a year.

An old acquaintance started coming by, asking Buster to find her some smoke. He told her repeatedly that he no longer smoked and had no clue where to find any. She continued to call &/or come by two or three times a week for a couple of months. He continued to tell her that he couldn’t help her. Unfortunately, he’s one of those people that just doesn’t know how to really tell someone off when they’ve crossed the line to obnoxious.

Eventually, old acquaintance started saying she could find pot for Buster. Buster told her he wasn’t interested, as he no longer smoked. This went 'round & 'round for several weeks, because she just wouldn’t give up. She kept finding better & better deals. Again unfortunately, he’s also one of those people who can be way too trusting for his own good - he just didn’t smell the decaying rodent. After all, this was someone he knew, someone he’d consider a friend - not a close friend, but still a friend y’know.

Then she approached him with a great deal. I can’t remember what story she gave him and I don’t remember the exact price (and it wouldn’t matter today, since this was at least a half-dozen years ago), but it was an astoundingly good price on a quarter-pound. There was some elaborate explanation as to why this was available. Buster could sell four ounces easily to good friends, who would love the chance to get pot dirt-cheap. In fact, this pot was so cheap that he could please his friends AND make a little cash for himself. Sad about Buster’s dysfunctional olfactory sense, eh?

Amazingly enough, when Buster went to make the deal, he was surrounded by cops with guns pointed at him. He was arrested for dealing. The ‘old friend’ had been arrested previously, and the cops had shaken her down for names. The cops would let her off of her charges if she found someone they could bust on a higher charge. So they helped her set him up. (This is standard practice around here, BTW. If you get busted [even for misdemeanor simple possession], they will threaten you from here to eternity in an effort to get more names. They don’t care who it is, if that person is actually a dealer, nothing. If nothing else, you give them a name and help set up that person, just as described here. If anyone else made these sorts of offers and threats, it would be called blackmail. The cops call it ‘police work’. :rolleyes: )

I don’t know why she picked Buster. Maybe she knew him well enough to realize how naive he can be. Maybe she didn’t know him well enough to feel bad about screwing him over. Maybe she was pissed off at him for something. Who cares?

The fact is that without the police setup, he would never have been involved. He resisted the temptation for several months, but eventually fell prey to the ‘too good to be true’ syndrome. To this day, he’s really pissed at himself for being so stupid, blind and trusting.

Oh, and of course, since Buster didn’t have several thousands of dollars for a lawyer, he didn’t have much chance of getting off on grounds of entrapment. IIRC, he got a pretty light sentence due to no priors of any sort, but he’s now a convicted felon.

So, what do YOU think? Is this sort of behavior acceptable to you? Is there ANY line you would draw, or do cops just get to do whatever they want as long as they make arrests?

16

Suppose I ask you to join me in a bank robbery. You decline, but I keep pestering you until you agree. We get caught. Do you think “Well, Ryan talked me into it” is going to get you out of the charge? Why should things suddenly be different if I’m actually a cop?

Why?

Definitely! If I were in charge of the police, that’s what I’d do. If this is entrapment, then I’m all for entrapment. I’d also leave bicycles unlocked, wallets unattended, house doors unlocked, and so on. I think that if every time someone sees what looks like an easy theft, they worry that it might be a sting operation, the world would be a much better place.

stolichnaya

How does one foster the desire? Are you saying that if the cop hadn’t offered the guy drugs or whatever, the guy wouldn’t have had the desire to buy drugs?

No, they’re inhibiting by making it more dangerous. What if the police know that a group is planning on robbing a bank. It is immoral for them to ambush them at the bank, instead of arresting them on conspiracy charges?

17

Because the alocholic and the kleptomaniac were not induced to commit the crime by the cops.

I was taught in law school to use the “but for” test to determine whether entrapment exists. If the person would not have committed the crime but for the actions of the police – in supplying him with the means, the motive, the opportunity, or what have you – then the person has been entrapped. There is a belief – appropriate, IMO – that it is not proper for the police to induce the citizenry into committing crimes. They are not to “make their own work” by turning citizens into criminals in order to later arrest them. Their mandate to prevent crime is not consistent with themselves being instrumental in creating crime. That, so far as I know, is the action anti-entrapment laws seek to prevent, and I think it’s a good idea.

18

This is kinda fun, Izzy. You and I have completely switched pro- and anti- police action sides from the racial profiling thread. :smiley:
I guess the question is, why is the fact that the government was the prodder make a difference? If the innocent cousin from my example was enticed into a robbery by Rob DeBanque, he wouldn’t get off.

Redtail23, the irony is that the entrapment defense wouldn’t be available to your friend. As a former pot user and buyer, he would likely be considered “predisposed”, not withstanding the fact that he had quit.
It’s hard for me as I don’t think drugs should be illegal, but putting that aside, he did voluntarily commit the crime.

Sua

19

redtail23: You posted right before I did, so although it looks like I was responding to your post, I wasn’t. I believe that if the police perform, or provide an incentive for someone else to perform, a crime which is separate from the target crime, that should not be allowed. If the woman’s conduct went over the line to harrassment, then that would be a crime which is separate from the target crime of dealing.

How is that abuse?

20

What about ABSCAM? (For you tykes, the FBI set up a bribery sting against several Congressmen in the late 70’s). Was this entrapment?
And I disagree with you that the police are “turning citizens into criminals.” If, after persuasion, you agree to do the crime, you turned yourself into a criminal.
I find your “but for” test overbroad. That would essentially eliminate undercover police work.

I think entrapment is bad public policy. It’s a waste of resources that should be used against active criminals. That being said, I still can’t grok how “the bad policeman convinced me to do it” means that would didn’t have the mens rea to commit the crime. Every criminal gets the idea to commit a crime from somewhere.

Sua