Entrapment in law occurs when an enforcement officer or other government agent suggests, encourages, or aids in the production of a crime that otherwise would not have been committed. The defense is recognized in federal law and also in most states. Alaska statute §11.81.450, for instance, allows an affirmative defense if, to obtain evidence of the commission of an offense, a public law enforcement official, or a person working in cooperation with the official, induces the defendant to commit the offense by persuasion or inducement that would be effective to persuade an average person, other than one who is ready and willing, to commit the offense.
The U.S. Supreme Court in 1932 upheld the entrapment defense in Sorrells v. the United States, 287 U.S. 485. A federal agent had approached the defendant in his rural North Carolina home and claimed that he was a furniture dealer from Charlotte and had served in the same army unit as David Sorrells. The agent persistently sought to have the defendant sell him liquor, a violation of the National Prohibition statute. Sorrells maintained at first that he did not drink whiskey, but after several visits and persistent requests, he provided the agent with half a gallon of whiskey and was arrested and sentenced to 18 months in prison. The Supreme Court decision stressed that the aim of the government should not be to create crime in order to punish it but rather to prevent crime, and it called for a retrial in which the jury could evaluate Sorrells’s claim to having been entrapped.
To overcome an entrapment defense, the state must convince the judge or jury that the individual had a predisposition to commit the criminal act and that the inducement offered was not sufficient in itself to produce that result. This criterion is known as the “subjective test” of entrapment. Some commentators regard this standard as unfair because it places persons with a previous criminal record at a disadvantage because their earlier illegal behavior can be used to demonstrate a predisposition to offend. There also is some philosophical uneasiness about the courts’ acknowledgment of the entrapment defense as criminal law rests on free will doctrines that maintain that, except for gross inadequacies such as mental deficiency, all persons, whatever the circumstance, are to be held responsible if they choose to violate the law. If entrapment is a legitimate excuse, it can be argued that growing up in poverty in a crime-ridden neighborhood also ought to be seen as an excusatory circumstance on the ground that it propelled a person into criminal behavior that would not have occurred had that person lived an affluent existence in a crime-free suburb.
The “objective test,” advocated by several judges in the Sorrells case, focuses on the decency and persuasive power of the tactics used by law enforcement personnel to determine whether an entrapment defense will prevail. Its aim is not to excuse defendants but to monitor police behavior so that it adheres to acceptable standards of morality.
Procedures such as radar equipment to detect speeding motorists and two-way mirrors in supermarkets to discover shoplifters are not regarded as entrapment. Police, at times, will use decoys in sites with high crime rates or where a pattern of specific offenses has emerged. The decoys may assume roles such as derelicts, shoppers, or drunks. For example, in a case in which patients complained that a dentist had sexually molested them while they were under an anesthetic, an undercover policewoman posed as a patient, was anesthetized, and was kept under surveillance by a hidden camera, which captured evidence of the dentist’s criminal act.
Tactics that arguably represent illegal entrapment typically are employed against persons engaged in activities defined as “crimes without victims,” particularly narcotics violations where there are no complaining witnesses and the police have to resort to proactive enforcement efforts. Similarly, female detectives, posing as prostitutes, engage in dragnets to apprehend johns who patronize prostitutes. Those accused can prevail with an entrapment defense only if they can convince a judge or jury that the law enforcement officer acted so aggressively and seductively that, but for this, the arrested person would not have solicited her services.
For social scientists, entrapment raises complex issues of causation and responsibility. If the temptation seems virtually irresistible, such as a wallet deliberately left by police detectives in a telephone booth in a ghetto neighborhood, should the youth who keeps the contents of the wallet be allowed to claim entrapment?
Entrapment figured in two prominent cases in recent decades. The Abscam sting operation targeted primarily lawmakers believed to be susceptible to bribery. Federal Bureau of Investigation (FBI) agents posed as representatives of a make-believe wealthy Arab sheikh, offering considerable sums to members of Congress for the sheikh’s alleged desire to obtain asylum in the United States, to invest in U.S. enterprises, and to launder money. The ruse resulted in the conviction of a U.S. senator, six members of the House of Representatives, and three other officeholders. Only Florida Congressman Richard Kelly succeeded with an entrapment defense, and this was only temporarily, because an appellate court reversed the original decision and Kelly went to prison.
John DeLorean was accused in 1982 of putting up $1.8 million to buy 100 kilos of cocaine that, if resold, would have netted him $24 million, enough to bail out his failing automobile manufacturing company. DeLorean was caught in an FBI sting operation that had a former drug smuggler-turned-informant offer him the opportunity to finance the drug import transaction. The judge dismissed the case on the ground of entrapment, with DeLorean not needing to call a single witness on his behalf.
- Caplan, Gerald. 1983. ABSCAM Ethics: Moral Issues and Deception in Law Enforcement. Cambridge, MA: Bollinger.
- Fallon, Ivan and James Srodes. 1985. Dream Maker: The Rise and Fall of John Z. DeLorean. New York: Putnam.
- Holmes, Bill. 1998. Entrapment: The BATF in Action. El Dorado, AR: Desert Publications.
- Marcus, Paul. 2002. Entrapment Defense. 3rd ed. Newark, NJ: LexisNexis.
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