Entrapment occurs when a police officer induces a person to commit a crime that he or she was not likely to commit without persuasion or inducement. It is used as a defense in criminal trials when the circumstances of the crime include police or other investigator activity that would tend to encourage criminal activity on the part of the defendant. Entrapment is not simply offering the chance to commit the crime; it is rather being threatened, harassed, induced, or persuaded by a law enforcement officer until the defendant commits the crime. Entrapment can only be performed by a government figure. When using the entrapment defense, the jury must look at the case in two different ways: subjective and objective. The subjective side of entrapment is focused on the defendant’s state of mind. Objective entrapment looks at the nature of the actions of the government in coercing a person to commit a crime.
Up until the 20th century, judges did not accept that a person could be convinced to commit a crime that they would not have otherwise committed themselves. Entrapment begins to emerge as a plausible defense after the Civil War, as more centralized government began to evolve and become impersonal as well as having more of a presence in the citizen’s life. As a result of the police attempting to have more of a presence in the life of the citizens, and the government caring less about how the people were being treated, there arose a need for a defense that protected a person who was dragged into a crime they never wanted to commit. Following the Civil War, the government began to enact new laws and regulations that drastically changed daily life. For example, 1913 brought the first instance of income tax, and the Mann Act was created, which made it illegal to transport women across state lines for immoral purposes. Those acts and the Espionage Act in 1917 and the Sedition Act of 1918 created a need for a stronger federal police force and paved the way for the Federal Bureau of Investigation and the Secret Service.
The introduction of Prohibition led to the broad expansion not only of the investigative services at the state and federal level, but also to a broad expansion of police powers. As police numbers and areas of responsibility increased, the need for some manner of codification of permissible behaviors on the part of investigators became clear. Some courts decided that because the police were involved in consent with the victim, it did not make it a crime, allowing the actual alleged criminals to go free. But most courts said that there was still a crime being committed, and that the police being involved did not make it consented to by the victims of the crime. As more deceit and decoying were employed in an ever-widening array of criminal activities—particularly as the myriad of new crimes defined as organized crime rose—courts seemed complacent in allowing a broad range of deceitful activities on the part of law enforcement.
The definition of entrapment stayed constant until a little after the turn of the 20th century. Though the struggle would go back and forth during the latter half of the 19th century, the courts were clearly groping toward refining a usable definition of entrapment. The key then, as now, is how “voluntary” the criminal was in committing the crime, and how much of the person’s actions were enticed by the authorities. The problems were multiple: The defense would always claim that law enforcement’s use of decoys, deceit, and enticement constituted consent to the crime, making the authority involved complicit, if not a participant, in the crime itself. Further, it was becoming clearer that the courts would not look with favor on law enforcement openly breaking the law themselves in order to lead to an arrest. A Michigan case demonstrated an important precedent in dealing with two issues: to what degree could law enforcement edge the margins of the law in enticing the act, and, secondly, whether or not there was a difference between “consent” in private settings and “consent” in the public sphere. In Saunders v. People (1878), Saunders, a lawyer, bribed his friend, a police guard, to leave the courtroom doors unlocked. His intentions were to get into the courtroom and alter documents in a case. The police guard immediately told the court about it, and he and another official waited for Saunders to go into the courtroom, and then immediately arrested him once he began to go through the papers.
The court overturned Saunder’s conviction, calling the actions on the part of the guard a “criminal contrivance,” “diabolical,” and “utterly indefensible.” The ruling demonstrated beyond question that the court believed that the role of the officer had been suborned, and that any responsible officer of the court, presented with a similar circumstance, should have refused the request and reported the incident. This changed the way entrapment was interpreted, as Saunders claimed that the guard provided consent, giving him permission to take the property. The court decided, however, that the officer did not have the authority to consent. If a person willingly hands over their own private goods to another, there is consent. But if something belongs to the state, as with the court documents in Saunders, an officer does not have the authority to provide the consent of the state. After the turn of the century, the courts increasingly looked upon these kinds of contrivances with a jaundiced eye.
Another change in the way the defense was played out happened in the late 1890s in Illinois in the case of Love v. People. In this case, a private investigator was hired by a law firm to end a string of robberies that was occurring in the area. The man went into town and befriended a group of young men by buying them expensive cigars and alcohol. Once he was friends with them, he convinced them to rob an office. The entrapment defense was used because the detective essentially made criminals out of innocent boys. The claim was that the detective himself corrupted them. The court pointed out that because the men were poor, they were easy to manipulate and were unable to deal with the persuasion this (apparently) rich man exercised.
Some historians consider Board of Commissioners of Excise v. Backus in 1899 to be the first case in which the entrapment defense was directly considered. In this case, Backus was selling alcohol and the commissioners hired a person to go in and buy alcohol from him in order to convict him of violating prohibition. Once he received his conviction, he had to pay a fine, but refused to. He was then sued by the Board of Commissioners with the defense that because a division of law enforcement was in on the act, they were also participating in illegal activity and, therefore, he did not need to pay the fine. He was using the entrapment defense on the grounds that because the law was in on the crime, it was no longer a crime. It was ruled out on the grounds that God did not accept the snake’s inducing as an excuse for Eve to eat the apple, and if it is not good enough for God, it is not good enough for the court.
By the 1920s, the entrapment defense was molded into a pattern that mostly holds true in the present day. The focus is on whether or not the defendant was a criminal regardless of the coercion of the government or officers. This led the courts and juries to only look at the action of the government officials if it was necessary in proving that the defendant would not have committed the crime otherwise.
The basic requirements for an entrapment to hold up in court seems to turn on three general theses: (1) there is sufficient evidence to believe that the person involved is predisposed to commit a crime, (2) the person would have committed the crime whether or not the entrapment was made, and (3) the entrapment succeeds where other forms of investigation would have failed.
As Cyndi Banks points out in Ethics of Criminal Justice, the second tenet is the most difficult to demonstrate by either side, as it assumes a level of knowledge of the person’s thoughts and inclination not often in evidence—and arguable when it is apparently in evidence.
- Banks, Cyndi. Criminal Justice Ethics: Theory and Practice, 3rd ed. Thousand Oaks, CA: Sage, 2013.
- Lord, Kenneth. “Entrapment and Due Process: Moving Toward a Dual System of Defenses.” Florida State University Law Review (1998) http://www.law.fsu.edu/journals/lawreview/ downloads/253/lord.pdf (Accessed August 2013).
- Roiphe, R. “The Serpent Beguiled Me: A History of the Entrapment Defense.” Seton Hall Law Review (2011). http://erepository.law.shu.edu/cgi/viewcontent.cgi?article=1273&context=shlr (Accessed August 2013).
- Yaffe, Gideon.“‘The Government Beguiled Me:’ The Entrapment Defense and the Problem of Private Entrapment.” Journal of Ethics and Social Philosophy, v.1/1 (2005). http://www.jesp.org/PDF/efca_Yaffe-vol-1-no-1.pdf (Accessed September 2013).
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