If I may hijack with another funny sting story - the New York police set up a similar fence a few years ago. They put up a nudie poster near the cash register; the main camera was in her belly button. They got remarkably clear shots of men looking directly into the camera. 
(I can’t provide an online site, but the story was told to my Criminal Law class by Alan Dershowitz).
Yes, that’s very clear. What’s not clear is what y our disagreement is based on.
So should cops not drive around on the freeway with a radar gun, testing people for speeding? Just how are they supposed to serve and protect, if they are not allowed to determine who poses a danger?
So what if the guy who left his keys in the ignition isn’t cop, and is just some guy in a hury? Is he “abusing” you by placing temptation in your path? Whatever happened to personal responsibility?
Well, yes, and easier to drive cars to crime scenes than to walk. Should the cops take the hardest path available? When computer programmers want to find out if something is wrong with their program, do they just sit back and wait for “naturally occuring” errors, and then try to figure out what went wrong? No, they intentionally try to crash the program to figure out where the problem is. Similarly, if cops think that people are in danger, they shouldn’t just sit back and wait for the danger to appear. They should create conditions favorable to the danger, so that it will appear in a situation where the cops have control.
IzzyR:
There have been many situations presented. To which do you refer? And, as I pointed out earlier, people without any desire to commit crimes. If someone commits a crime, obviously they have the desire to do so.
Danielinthewolvesden
If someone commits a crime, he’s a criminal. Pure and simple.
Obviously at the time that they committed the crime they had the desire to do so. The entrapment scenario is where prior to being contacted by law enforcement they did not have this desire, and the desire was encouraged by the law enforcement people. (This is, to repeat, distinct from the case where the desire was present without law enforcement and only the opportunity was missing.)
In general, what IzzyR has said.
Sua, I’d say that if the police set up the con & invite him to join in, that’s entrapment.
On the other hand, parading a series of obvious suckers (e.g., forgetful little old ladies, airhead new-age neo-hippies, greedy but naive teenagers with access to dad’s moola, whatever) by him until he bites? Perfectly legit. Wire the ‘sucker’ to the hilt or whatever is needed to get evidence.
In between and iffy (depending on how they did it), I can see a possibility that the cops might create a situation (complete with sucker ripe for the picking) that required their assistance to make happen, and get the conman to invite them into a con he set up. I might go so far as to say that a cop could bring the situation to the conman’s attention. Where it crosses the line IMO is when the cop suggests a con, plans a con, sets up a con - if the cops originate the con & the conman is invited in, then it’s wrong.
I don’t know enough about Abscam to comment on it, and one could argue that as the main motive in redtail’s example was to stop the harrassment rather than to deal drugs, and the cops therefore created the desire. But according to your definition, none of the other situations presented in this thread are entrapment.
Come to think of it, redtail gave two examples. I was referring to the first.
This depends on whether you focus on crimes or criminals in your analysis. If the idea is to catch a criminal before he commits an “uncontrolled” crime, then you use a sting. But if your sting catches people who wouldn’t have committed any crime but for the sting (because they are not predisposed to commit the crime, although they can be pestered into it), then you have not actually reduced the number of “uncontrolled” crimes committed - you have only picked up an extra sucker to put in jail.
If I remember correctly the main case on this topic that we discussed in Criminal Law, a man who had gotten “legal” porn by mail order in the past was then sent increasingly lurid advertisements for kiddie porn over the course of years until he finally bought some. The court found that he had no interest in such material until the FBI had bombarded him with sexual images of children for some time, and therefore that the desire to commit the crime had been manufactured by the sting, rather than being a predisposition.
I think are in agreement here. It’s a little fuzzy, but hell, so is life. (Omigod, the OPer changed his mind?! Don’t tell anyone!)
redtail I read your last post. If you can explain your rationale, we might be able to come to agreement, too.
Sua
I have been thinking about this question for a bit and here is what I am thinking.
I think the defense is valid. Even though the person did choose (with inducements) to commit a crime it is still a valid defense.
When the state provides the ‘straw that breaks the camels back’ it does not have the right to blame the camel. If a person is 90% inclined to commit a crime he is still not a criminal. The state has no legitimate reason to provide the remaining 10%. To allow the state to do so and then place all blame on the person is not ‘right’. (maybe legal but not IMO right)
There is a movie called A Simple Plan. If you didn’t see it you didn’t miss much but it is about a group of friends who find a tremendous ammount of cash and then suddenly stop being friends and start killing each other.
There is one very well written scene when Bill Paxton asks his wife Bridgette Fonda what she would do if she found several million dollars in a hypothetical way. She replies ‘Turn it over the the police’. He then dumps several million dollars on the kitchen table and then she forgets all about the police.
It is very easy to sit back and say ‘I would never commit a crime no matter what kind of inducement an undercover police officer offered me’. However when the inducement is real and just within your grasp. When there is a real live sexy woman who is offering to have sex with you for 100 dollars and you ‘know’ you won’t be caught by your wife or girlfriend (or maybe you don’t have one), when someone shows you a way to skim money in a way that would make you a quick 1000 dollars and you know you are short on money for the rent next week, when these situations are real to you and the reward is real then you can test your moral fiber and only then.
If the state has reason to suspect an individual is crime prone why doesn’t the state offer positive things like job training or education. The state should try to improve the lives of all citizens.
Anyway that’s what I have been thinking.
The case was JACOBSON v. UNITED STATES, 503 U.S. 540 (1992). Basically, in early 1984, Jacobson ordered through the mail copies of the magazines “Bare Boys I” and “Bare Boys II” which showed nude teen and pre-teen boys. They were not engaged in sexual activity, and they were not illegal at the time. Later that year, the Child Protection Act of 1984 was passed making “the receipt through the mails of sexually explicit depictions of children” illegal.
Postal Inspectors found Jacobson’s name on a mailing list and claiming to be the “American Hedonist Society” sent him a membership application and a “sexual attitude questionnaire.” He filled them out and returned them, claiming interest in pre-teen sex but opposed to pedophilia (no, I don’t see the difference either).
In 1986 they ssent him another questionnaire, this time as Midlands Data Research. He responded saying he was interested in teenage sexuality.
Then the Postal Service claimed to be “Heartland Institute for a New Tomorrow” (HINT), and said they were “an organization founded to protect and promote sexual freedom and freedom of choice. We believe that arbitrarily imposed legislative sanctions restricting your sexual freedom should be rescinded through the legislative process.”
Jacobson responded to their survey saying he liked pre-teen homosexual activity and wrote that “Not only sexual expression but freedom of the press is under attack.”
Next, a postal inspector wrote to Jacobson using the name Carl Long and discussing porn. Jacobson said he liked seeing late teens/early twenties boys. He never mentioned anything younger.
By this point, it was 1987, the Postal Service had not checked to see if Jacobson was receiving child porn in the mail and had no evidence that he had.
Enter US Customs, who got his name from the Postal Service. Customs claimed to be a Canadian company “Produit Outaouais” and sent him a brochure of young boys having sex. He made an order, but it was never filled.
The Postal Service then became “Far Eastern Trading Company Ltd.” wrote a scathing letter to Jacobson against censorship and claimed to have a safe method of delivering porn. He made an order, it was filled, and he was arrested.
The government searched his house and found only the Bare Boys magazines and the magazines they had sent him.
The Supreme Court ruled that this was entrapment. They ruled that while he obviously had a pre-disposition towards teenage boys, he didn’t have a pre-disposition to committing any crimes. Getting the Bare Boys magazines in the mail was not illegal when he did it, and possession of that kind of material was not illegal in his state until 1988. “Hence, the fact that petitioner legally ordered and received the Bare Boys magazines does little to further the Government’s burden of proving that petitioner was predisposed to commit a criminal act”
They further said that since the mailings made such strong statements against censorship and for freedom of expression, they put pressure on him to “exert his rights.”
So, the majority opinion states
The dissent argues that
So the question boils down to whether the surveys and questionairres induced him into criminal activity.
Sorry this was so long and detailed, but it covers all the main points well and I figured it was easier to break it down here rather than everyone wading through the whole case themselves just to get the main points.
pinqy
Hmmm. I seem to recall from my high school civics class that simply planning to commit a crime, even if the crime itself doesn’t go down, is in itself a crime- it’s called conspiracy.
So if the cops plan a “crime”, and entice others to engage in that crime, aren’t the cops involved in a conspiracy?
Somebody oughtta do something.
Liked an early draft of the script,
disliked what the movie ended up becomming.
Three objections: just because it occasionaly catches undisposed people, that doesn’t mean it doesn’t it doesn’t catch any repeat offenders. Secondly, suppose you investigate an uncontrolled crime, and catch the guy that did it. Will putting him in jail reduce the number of crimes committed? The crime has already been committed; it’s not going to be undone. You may say “well, he’s probably going to do another crime”. But that argument has just as much validity in the sting situation. Or you might say “but putting him in jail is a deterrent”. Which brings me to my third point. Suppose you start with 100 uncontrolled crimes, of which you get 10 convictions. Now you orchestrate 50 controlled crimes, of which you get 40 convictions. You’ve gone from a conviction rate of 10% to a conviction rate of 33%. The criminals don’t know which are controlled opportunities and which are not. Isn’t a conviction that’s three times as high as before going to deter criminals?
Thea Logica
Not if you don’t intend to commit the crime.
Is the entrapment defense a statuatory defense, or is it a judicial one? That is, is there a law regarding it, or has the USSC decided that it’s a constitutional right?
I am not an american lawyer but I can tell you what the Canadian perspective is.
Entrapment is what is known as a procedural defence rather than a exculpatory defence like a claim of self defence or other justification. While the defence existed at common law under the common law power of the Court to control its own process, the defence now has constitutional status under our section 7 guarantees of fundamental principals of justice which I assume are much like your rights of due process.
Unlike an exculpatory defence, entrapment does not result in an innocent verdict. Rather the abuse of process is adjudged to be serious enough to refuse to enter a conviction for the offence.
There are a few overlapping concerns that in canadian culture would be said to “shock the conscience of the comunity”. First is the illegal conduct of the officers which must be justified by existing evidence of proclivity against the accused. Second is the random morality test aspect of entrapment which is, as a previous poster pointed out, analogous to an unlawful search. Third is the concern that the criminal behavior was induced only through the actions of officials and the accused might otherwise not have been motivated to engage in criminal behavior.
There is a similar defence to an officially induced error of law which engages only the third of these concerns.
I don’t understand this difference. There’s no such thing as an “innocent” verdict in the US, just “not guilty”. Does Canadian law have an actual “innocent” verdict, or the Scottish “not proven”?
That was sloppy of me. I should have said it doesn’t result in a verdict at all although even that is somewhat misleading. Consideration of an entrapment defence generally occurs only after a finding of guilt. A succesful entrapment argument doesn’t convert this into a not guilty verdict, it results in the verdict not being entered and the case ends with a judicial stay. In a jury trial, for instance, the defence is raised only after a guilty verdict has been reached and is a question for the Judge alone.
While that may seem a trivial difference there is one more important aspect to a non-exculpatory defence. The defendant has the burden to demonstrate on a preponderance of probabilities that the defence should apply. By contrast one need only raise a reasonable doubt with respect to an exculpatory defence.
I believe this same standard of proof also applies in the united states though it is a question for the jury and would result in an acquital.
Thanks, Ned, that clears it up.