All Commentary
Friday, November 1, 1996

Law Enforcement by Deceit?: Entrapment and Due Process

Many Dubious Investigative Tactics Are Perfectly Acceptable Under Current Laws

Ms. Johnson is a freelance journalist living in Tampa, Florida. She writes a monthly column dealing with personal sovereignty issues for Impact Press, a regional magazine distributed in the southeastern United States. Her work also appears regularly in The Hernando Today.

According to an April 1993 FBI Law Enforcement Bulletin, “Law enforcement officers often employ trickery and deception to catch those involved in criminal activity.” What might surprise you is that the Bulletin just quoted was not designed to discourage or reprimand such trickery, but rather to spell out how law enforcement officers can best conduct it so as to avoid undercover investigations [giving] rise to successful [defense] claims of entrapment.

Contrary to popular belief, executed properly, many dubious investigative tactics are perfectly acceptable under the current parameters of the law. The 1992 Supreme Court ruling in Jacobson v. United States—that law enforcement may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute—establishes only loose and vague constraints on police procedure. The Supreme Court has held that when investigating certain criminal behavior, police may lawfully use a wide array of undercover techniques that, although deceptive, do not legally constitute entrapment.

The question is: What does? And why does law enforcement seem to have such extraordinary latitude to conduct lawful investigations that most would deem Machiavellian?

Entrapment is defined, in criminal law, as an affirmative defense (one in which the defendant has the burden of proof) which excuses a criminal defendant from liability for crimes proved to have been induced by certain governmental persuasion or deceit. In considering entrapment defenses, courts have deliberated four questions. Their answers to these questions determine in a particular case whether an entrapment defense is relevant and can exonerate the defendant.

The first question is: Does law enforcement need reasonable suspicion before targeting the accused in an undercover investigation?

Surprisingly, the answer is no. Numerous federal courts have held there is no Federal Constitutional requirement for any level of suspicion to initiate undercover operations. The courts have ruled there is no constitutional right to be free of investigation and that the fact of an undercover investigation having been initiated without suspicion does not bar the convictions of those who rise to its bait.

So, a defendant cannot be exonerated of a crime on entrapment grounds merely because he or she can prove that police had no reason whatsoever to suspect even the slightest of criminal inclinations. What he must prove is that he was induced by police to commit the crime. This leads us to the second question: What constitutes inducement?

An officer merely approaching a defendant and requesting that he commit a crime does not. To claim inducement, a defendant must prove he was unduly persuaded, threatened, coerced, harassed, or offered pleas based on sympathy or friendship by police. A defendant must demonstrate that the government conduct created a situation in which an otherwise law-abiding citizen would commit an offense.

For example, in United States v. Young, the Internal Revenue Service (IRS) placed an undercover female informant at an IRS site to investigate drug activity. The informant became friendly with the male defendant, who hoped the relationship would develop into a romantic one. During the next four months, the defendant and the informant had contact at work as well as frequent telephone conversations in which they discussed their mutual marijuana habit and the availability of the drug. Five of these conversations were initiated by the informant.

Sometime later, the informant indicated that she had marijuana available for sale and the defendant agreed to find a buyer. The sale was arranged and the defendant arrested and prosecuted.

Clearly, inducement, right? Wrong. The court found that the level of contact between the informant and the defendant was not such as to be harassing or coercive. Nor was the friendship such that the defendant would feel compelled to respond affirmatively to the informant’s offer for some sort of personal, lawful gain.

A converse example is that of United States v. Skarkie, in which a government informant, who was a distant relative of the defendant’s estranged husband, moved in with her and asked her to put him in touch with people who could sell him drugs. Initially, she declined; but, the informant continued to pressure, and ultimately threatened her. He impaled one of her chickens on a stick and left it outside her back door and later stated that, What happened to the chicken can happen to people as well.

Skarkie subsequently took the informant to meet a source, who later brought approximately three pounds of methamphetamine to her home. Skarkie and her source were then arrested and tried.

In this case, the U.S. Court of Appeals for the Ninth Circuit found that the government did induce the defendant to break the law because the informant initiated the idea of a drug sale, repeatedly pressured Skarkie to agree to his plan, and threatened her when she indicated that she was reluctant to participate.

Defining Predisposition

Even with the finding of obvious inducement, Skarkie wasn’t off the hook. Courts usually require that a defendant go further and prove that he or she was not predisposed to commit the crime. If this can’t be done, even in proven circumstances of coercion and threats, the entrapment defense fails. Thus arises the third question: What constitutes evidence of predisposition?

Although they require predisposition to be proven (or disproved) above and beyond inducement, most courts consider the two elements of entrapment to be closely related and often the same evidence will establish both. There is a primary distinction, though, between the two: Inducement focuses on the government’s conduct, while predisposition focuses on the defendant’s actions and statements.

Predisposition is not solely based on whether a defendant has previously engaged in criminal activity. Predisposition may be established merely by showing the defendant’s desire to make a profit, eagerness to participate in criminal activity, or quick response to the government’s inducement offer. Thus, even in circumstances where there was no reasonable suspicion to initiate an investigation where the defendant has proven illicit tactics of government inducement, and where there is no record or suspicion of criminal activity in the defendant’s past, an entrapment defense may still fail if the defendant engaged in the induced activity for profit, monetary or otherwise, or did not demonstrate marked reluctance.

The word draconian comes to mind. It apparently also came to the minds of those on the Supreme Court in 1973, who initiated a doctrine in hopes of establishing a system of checks and balances to apply to arguments of entrapment.

This doctrine is called the outrageous government conduct defense. It determines that, although proof of predisposition to commit a crime bars application of the entrapment defense, “Fundamental fairness will not permit a defendant to be convicted of a crime in which police conduct is deemed `outrageous.’” In very rare and limited circumstances, this defense exonerates a defendant from criminal liability for crimes committed even when predisposition has been established.

This doctrine is the subject of the fourth question: What is the viability of the outrageous government conduct defense? Prosecutors and law enforcement officers continually question the legitimacy of the defense, while defense advocates say its scope is much too limited.

By the courts, it is presently regarded as theoretically viable where the government is overly involved in the creation of a crime. What exactly does that mean? There are those, both within, and outside of, the legal profession, who would argue that the government was overly involved with both Young and Skarkie. But their arguments in our present courts would be to no avail. The outrageous government conduct defense has proved successful only in cases involving the most extraordinary degree of government involvement or coercion.

If, before you read this article, you were told of a place where law enforcement officers could legally initiate an undercover investigation with you as the target, go so far as to present you with both the opportunity and the faculties to commit a crime, and then arrest you and convict you of that crime, it’s the last place you’d want to go.

Now you know you’re already there—U.S. federal law permits this to happen.

The entrapment debate is a heated and complex one. Its consequence reaches far beyond the issue of justice being served to defendants actually charged as the result of undercover investigations. Until entrapment is defined clearly and fairly, all of us face a threat to our right of due process.