I also believe the “but for” test is too broad. Take an example of my driving down the highway at the speed limit of 55 mph. An unmarked police car pulls up along me, blows his horn, winks, and guns it. A race, eh? So I race him. I’m guilty of speeding. There was no entrapment. Yet I would not have sped but for the cop enticing me to do it. (Incidentally, that happened to me when I was doing a couple over the speed limit. The cop wanted to write a ticket for speeding, but didn’t want to do it for a few miles over. I know it was a cop because he gave me a warning ticket.)
IIRC some of the congressmen were exonerated in the ABSCAM on the entrapment defense. I didn’t think that was proper. Mere enticement is not entrapment. The definition at the M-W Law Dictionary states “undue enticement” is entrapment. So what’s “undue”? I think that there must be actual fraud on the part of the police or its agent. If limited to that stricter definition, I’m in favor of it.
I don’t know enough about ABSCAM to know if it was or not. I can’t imagine the defense of entrapment wasn’t raised; how did it turn out?
Okay, then how about this:
"Entrapment is 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. According to the generally accepted view, a law enforcemnet official, or an undercover agent acting in cooperation with such an official, perpetuates an entrapment when, for the purpose of obtaining evidence of a crime, he originates the idea of the crime AND then induces another person to engage in conduct constituting such a crime when the other person is not otherwise disposed to do so. Black’s Law Dictionary (emphasis added.)
In other words, there is a difference between an undercover cop posing as a prostitute (enticing men who are predisposed to hiring a prostitute) and an undercover cop who says “Say! You need money to see your kids. Let’s rob a bank!” (Action not previously contemplated by the other person.)
But, as you admit, there are public policy reasons why that idea should not come from the cops themselves. I don’t see it as a lack of mens rea (though it arguably is, since the idea was not your own), but as a public-policy-driven prohibition – sort of like the whole “fruits of the poisonous tree” prohibition in the context of searches and seizures. In any event, as an affirmative defense, it must be proven by the defendant asserting it. I have no problem with that.
To me, the argument you’re making is akin to saying that the fruits of an illegal seizure ought to be admissible – they prove you did it, right? A crime was committed, right? Why shouldn’t you be punished for it? Because there are certain police actions that, for broader public-policy reasons, we do not allow – illegal searches, beating up suspects, entrapment. And if they exist, they will vitiate the crime, not on the grounds that the crime did not occur in the first place, but on the grounds that the police must abstain from proscribed conduct or risk having their investigations thrown out.
BARBITU8:
Regarding your speeding example, I would think that you could make a pretty strong case that you were entrapped, though the cop might argue his actions were enticement, not entrapment. Again, my understanding of “entrapment” is not that it means that a crime did not occur, but that the motive for the crime was provided by the police, not the suspect. This is not the same as saying there was no crime.
I think entrapment is different from fruits of the poisoned tree for two reasons. First, the exclusionary rule is derived from the constitutional protections of the 4th Amendment. Entrapment is not constitutionally prohibited. Second, the public policy rationale behind the exclusionary rule is that, if the cops didn’t search legally in the first place, there is always the possibility (however remote) that the cops planted the evidence, and that the person arrested is actually innocent. In contrast, with entrapment, everyone admits that the crime was committed. The defendant is simply arguing that, but for the cops suggesting it, he wouldn’t have done it. That’s where I have a problem.
To me, this isn’t the almighty power of the state crushing a poor innocent. The poor innocent could have avoided the whole problem by simply saying “no”, and the only way an entrapment would work is if the poor innocent doesn’t realize the almighty power of the state is after him. Opposed to that, the victim of a warrantless search was never given the opportunity to say “no”, and very often was forced to submit to the search by an officer explicitly using the power of the state.
Sua
That’s it, the Black definition. I don’t have the book here at home, so I didn’t look it up. The gist is that the idea originates in the official, not in the entrapee. I had forgotten that. It’s been many years ago. So, I wasn’t entrapped. The idea of speeding (if I had, but I did not increase my speed) would have originated in me, not the cop. He merely induced me to think of doing it and doing it. Strong inducement, perhaps. But the idea originated in me. A fine distinction, but an important one.
I think it makes sense to look at the totality of the government’s actions in the case. The government does not have moral standing to prosecute a crime that they themselves caused to happen. If Rob DeBanque entices his cousin into a life of crime he is also doing his cousin a disservice and does not have standing to complain about it later. Furthemore, the fact that they (the gov) should not be doing this sort of thing (as they would be abusing their citizens, the Ryan’s protests notwithstanding) is a justification for disallowing such a prosecution. (This ignores constitutional aspects of it that you commented on in a later post, and focuses on what is the right policy to take.)
Sometimes it takes alot to turn a person into a criminal. The police are doing all they can to help you out, but you must get out there and do a little for yourself as well.
He might have a hard time proving that he had been entrapped. But if he could show that he had been consistently hounded in the manner described by redtail he would likely be judged to have been entrapped.
Well, nobody really dealt with my hypothetical citizen’s arrest argument. Why aren’t the cops being arrested by citizens for this stuff? Just because nobody ever makes citizens’ arrests - it’s just not commonly done and no one know how to do it. It shouldn’t be necessary for citizens to arrest cops, because cops shouldn’t be committing crimes.
Should they? Correct me if I’m wrong, but offering someone a bribe is a crime. Same with offering sex for cash. The deal doesn’t always have to close. Do you think a legal exception should be made if you’re trying to catch someone? Why shouldn’t I be allowed to arrest some undercover FBI agent for offering me a bribe? Sure, it wouldn’t work, I’d get a Smith & Wesson 1076 in my face and other assorted ugliness, but that’s not the point.
I’m not dealing with the examples of leaving the engine on an expensive car running. It’s not illegal to do that. Furthermore, plenty of people not predisposed to GTA are going to pass the car, see it running, and think, Hey, that guys in a hurry and/or very trusting. It’s not entrapment in my eyes. I’m talking about the examples where the idea of the crime was invented by the state. Do you really want the state to work that way - for state officers to have the legal right to catch suspected contract killers by hiring them? “I’m a law enforcement officer. I protect the innocent by hiring out-of-work thugs to kill old ladies.” Hmm.
SuaSponte wrote:
I don’t think it would. (Actually, I don’t think it does. I think “but for” is the accepted judicial standard.) Undercover police work can succeed merely by soaking up underworld plots. A cop can run with a gang, hear about some impending crime, and organize an arrest all without ever encouraging that crime. It’s not like it’s that hard to get people predisposed to crime to talk about crimes they’re going to commit - criminals will occasionally brag to uniformed officers about crimes. I don’t have any statistics for you, but I doubt that many cases broken by undercover police work are challenged on entrapment grounds.
The reason why entrapment is bad- why does society want to imprson folks with weak morals? We don’t- we want to stop/ imprison CRIMINALS.
Yes- somebody spotting a drunk with a roll of cash sticking out of his pocket SHOULD NOT TAKE the money. BUT- arresting and convicting someone, who has a clean record, but was tempted “just this once”- serves no purpose, and is a waste of our taxes. besides- a criminal conviction can often drive a non-criminal to a life of crime. So great- not only have we wasted a bunch of our taxes enticeing a man to become a criminal- but now we have another criminal. How does THAT help?
These "internet entrapments’ will not stand up- once someone decides to fight them. But they threaten you with a small but reasonable chance of 22 consecutive life sentences, plus hundreds of thousands of $ in legal fees if you fight- or a "suspended sentence’ if you plead. So- everyone pleads.
I said:
I am troubled by the idea of LEOs randomly testing the population in this manner.
You said:
Why?
I said:
Here’s a scenario. … 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?
You said:
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.
All I can say is we disagree as to what we expect/desire of our LEOs. To me, “serve and protect”, or however I specifically wish to define what I expect of LEOs, does not include testing my and my fellows’ morality, exposing my latent weaknesses. It is hard enough to lead “a good life” as it is without my tax dollars going to place temptation in my path.
I suspect such “sting” operations as are described in this thread may reflect “lazy” policing. Easier to manufacture crimes than to investigate and solve naturally occurring ones. Also, to what extent do such “stings” go after minor players, instead of addressing root causes?
Another question, though -
Given that all police departments have a finite set of resources, where would you have them prioritize their spending?
Pre-Crime possabilities include:
Prevention by patroling and being an obvious police presence
Prevention by conducting informational programs towards seniors, children, home owners other specific groups
Prevention (it is supposed) by conducting sting operations designed to lure folks who have a predisposition to commiting crimes
Post Crime possabilities include:
Crime investigations, including report writing etc.
Execution of arrest warrants
Response to civilian complaints
I’ve seen the results of the type of sting that redtail spoke of, it’s a pretty common tactic. And the local drug squad gets to talk at the end of the year about having ‘gotten 100 drug dealers off the streets’, without mentioning that the ‘dealers’ involved were involved in low level buys, and only after repeated badgering by an Informant.
I would wonder if other crimes go unsolved due to the Police attention to such sting operations.
OK, now y’all are starting to convince me. If you can distinguish the government’s moral position between when they set up a sting that ensnares an innocent and when they set up a sting that ensnares someone who has committed similar crimes, I think I’ll concede.
The problem that remains for me is that in both cases, the government causes the particular crime to happen.
Thanks. I was wondering if someone would bring this up. Why should it be that if our trusted LEO’s do it, it’s valid police work, but if you or I do it it’s “Conspiracy to Commit…”?
No-one will catch me claiming to be a lawyer, but I do have a fairly accurate ethical compass, and entrapment is off the “acceptable” scale. Heisenberg’s Uncertainty Principle states in essence, (gross oversimplification ahead!)that the act of testing something alters it, i.e., you can never have a perfect test.
So how do we know that this person, who has not been proven to have the gumption to create their own opportunities for crime, would have ever become a criminal on without the police providing the opportunity?
In short, their mandate is for Law Enforcement, not Moral Testing.
Whaaaaat? Are you joking? Are you saying that first-time offenders should never be charged, tried and punished if convicted?
I don’t give a damn what tempted you- if you did it, you need to take responsibility for it. Every criminal had a first time.
Don’t sound like Frank Gifford- oh help me, I was wrongly entrapped! Oh bullshit Frank- that psuedo-hooker-stewardess didn’t hogtie you and carry you off to that hotel room. Her motivation (I’m going to bust/embarrass Frank & Kathy Lee) is irrelevant. The relevant issue is that Frank wanted to get a little, and took the necessary steps to get some.
I’m not sure what you’re looking for, but I’ll give you an example of what I think is a valid sting operation. Maybe that will help?
The PD here opened a fencing operation. Don’t remember exactly what the cover was (pawn shop or something similar IIRC), but they were buying stolen property. To the best of my knowledge, they didn’t advertise looking for stolen wares, they didn’t recruit thieves, they didn’t ask people to steal for them. They just opened the store, sat back and waited. I’m sure they had some way of passing the word that this was a new fence and I’ll freely admit that I don’t know exactly what that method was, but as far as I ever heard, they just let people know they were available and let thieves come to them.
Of course, they had cameras & mics running, etc., and everyone who had come in & sold stolen merchandise was arrested one fine day. The most entertaining part was the name of the establishment; of course I can’t remember it exactly (Central Oklahoma something or other) but the initials spelled COPS.
The difference is that they were not RECRUITING people to become criminals. Yes, perhaps some of the people charged only decided to steal because there was a fence handy, but the cops did not have an active role in that decision making process. Please contrast this with the previous story, where the cops had an agent actively attempting to cause someone to commit a crime.
That is the difference (IMO) between a legit sting operation and entrapment.
I don’t know the relevance, but Heisenberg’s Uncertaint Principle actually states that the act of observing affects the results. Doesn’t have to be testing.
I’m convinced, as I stated before and Black states, that if the idea originates in the person committing the crime then it is not entrapment, no matter how tempting the inducement, from a legal standpoint. From a moral view, a different result is possible. The police who leave the door opening and the engine running may induce some one to steal the car, but the idea was initiated by the person, and entrapment is not a defense. Morally, it is reprehensible. Perhaps courts don’t actually decide that way. As I recall in the Abscam trials, entrapment was successfully employed altho the idea was initiated by the defendants.
Redtail
Okies, we’re on board so far. But what about the situation where the police have gobs of circumstantial evidence against, say, a serial con man, but they can’t get enough for a conviction. So they try contact the con man and invite him to join in a con the police pretend to set up. Here, the police are, in effect, creating the crime, but the target is (at least presumably) a criminal. Is this moral?
You seem to be focusing throughout this thread on the type of person being ensnared, as if what constitutes entrapment is what catches an innocent person and what’s proper law enforcement is catching career criminals. I think this is completely irrelevant. What matters is this particular crime. As a practical matter, it is more likely that a “criminal” will go for a particular criminal scheme than would an innocent person, and this is what makes the law against entrapment a practical one. But if in a given situation a criminal decides that he does not want to commit a particular crime (even if unconnected with moral scruples) but is persuaded to do it by the government, he is entrapped just as much as an innocent person in similar circumstances.
So the difference is not between what type of person is caught in the trap. It is with regards to the extent to which the crime was caused by the police.
I think we have a disagreement as to what “predisposed” means, and I think you have the right one. The definition you posted from the M-W dictionary of law includes as a requirement that the person entrapped is “not inclined to commit the crime.” I understand this to mean that the individual is not inclined to commit the type of crime in question (and I have been using “innocent” as sloppy shorthand), while you, if I understand you correctly, interpret it to mean not inclined to commit the particular crime. Your interpretation is rational, and probably legally correct.
But something from your last post troubles me. You say that a career criminal is much more likely to go for a particular criminal scheme, so they are not being unduly persuaded by the govmint to commit a crime. But the government is still causing the particular crime to happen by setting up the sting. In an earlier post, you stated that “the government doesn’t have the moral standing to prosecute a crime it caused to happen.” So, another scenario:
Undercover policeman: Dude, wanna finance a huge drug shipment for me?
Hardened Drug Dealer: How much you need, I’m in!!
The police don’t have to convince the drug dealer to sign up, but they still give him the opportunity, and therefore cause the particular crime to happen. This would not be entrapment in any jurisdiction, to my knowledge. But is it moral?
I could understand where you might consider it immoral. But I also see room for justification from a moral standpoint. In the entrapment case the “evil” itself was created by the police, by inducing a desire to commit the crime. Until the police intervened, this person was intending to abide by the law, at least in this particular instance. In the non-entrapment case, the “evil” is already present, in the form of a person looking (or at least willing) to commit a crime. The only thing that the person lacks is opportunity. The presentation of an opportunity can be viewed as merely allowing the person’s natural criminal impulses to express themself.