Can entrapment ever be considered acceptable

Sting operations are used all over the world to catch car thieves, prostitutes, drug dealers, pedophiles and other criminals and even adults who buy alcohol or cigarettes for minors. This practice has been instrumental in law enforcement's efforts to keep crime off the streets, and although they aren't always successful, sting operations generally serve a useful purpose, the purpose being to keep criminals off the streets.

Undercover operations of law enforcement have become an increasingly popular means of thwarting criminals and criminal organizations in the very early stages of illegal activity. ‘Stings’ provide a person, otherwise innocent to that point, with the opportunity to commit crime. Police undercover operations sometimes lead to inducement of crimes where the person being induced may not have been seeking criminal activity but can such inducements ever be justified?

Defendants who are being tried for accepting a temptation proposed by the police sometimes employ the entrapment defense. Acquittal of some of them is thought to be justified either on the grounds that culpability was undermined by the temptation (the “subjective” approach) or on the grounds that the government acted objectionably in issuing the temptation (the ‘objective’ approach).

The entrapment defense fails if it can be shown that the defendant was ‘predisposed’ to commit the crime. Thus, according to this approach, the fact that the police provided the temptation to commit the crime does not automatically ameliorate the defendant’s culpability, even if the temptation was, by ordinary measures, extremely powerful, and even if the government acted improperly in supplying it; predisposed defendants cannot, even in these cases, avail themselves of the entrapment defense. Most courts on the other hand have accepted the converse of this claim, as well; they have held, that is, that, assuming the defendant performed the act for which he is being tried as a result of a temptation provided by the police, the entrapment defense succeeds if it can be shown that the defendant was not predisposed.

Any consideration of the ‘defence’ of entrapment must of course address the non-exhaustive list of factors mentioned by the Supreme Court of Canada in the leading case of R. v. Mack. Defence counsel argued that three of those factors have particular relevance where the accused is a young person:

(1) Whether an average person, with both strengths and weaknesses, in the position of the accused, would be induced into the commission of a crime;
(2) Whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
(3) Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction.

I think that the role of the police in situations like the three above would apply to adults also.

Entrapment consists of two elements: 1. State action that induced the defendant to commit the crime; and 2. A lack of predisposition on the part of the defendant to commit the crime.

Many cities have sting operations involving the leaving of an unattended car on the street for car thieves to steal. Once the car thief enters the car and drives it away, it is stopped by the police who then apprehend the car thief.

Does the car thief have a defence? Not really. He is a car thief just doing what is natural for him to do---steal cars.

There have been instances when a television program (Dateline) has conducted sting operations with the cooperation of the police to nab pedophiles. The pedophile is in Internet contact with what he believes is a young teenager when in fact; he is really in contact with a police officer. A meeting is arranged and the pedophile shows up at the ‘teenager’s’ home and meets a young woman (a cop) whom he thinks is about 13 years of age. She leaves the room and then the TV interviewer enters the room and discloses that the pedophile is in on TV and is the subject of a sting to nab pedophiles. When the pedophile leaves the house, he is nabbed by the police who are waiting just outside the door.

Does he have a defence of entrapment? Not really. The reason is obvious. He was the person who originally proposed the meeting with the ‘young girl’ whom he believed was an under-aged girl which is clear evidence that he had a propensity to have sex with under-aged girls.

If the police had called up a citizen at random in an attempt to get him to have sex with an under-aged girl and the man they enticed to commit that crime, was sexually aroused as a direct result of the enticement and subsequently met the young cop whom he thought was a thirteen-year-old girl, he might very well have a defence. That is because the man didn’t have a propensity to have sex with an under-aged girl but was seduced by the police to commit the crime.

If the law enforcement officers, or their agents, use certain improper tactics, such operations also provide the person with the defense of entrapment. Because entrapment is a defense, the defendant is required to produce sufficient evidence to argue entrapment at trial. Once he has done so, the prosecutor then has the burden of proof beyond a reasonable doubt that the defendant was not entrapped. In other words, the defendant would have committed the crime anyway.

In acquitting an entrapped defendant, is the court saying that the police officer’s act was undermined in some way notwithstanding the fact that the defendant committed the criminal act, because some part of the police officer’s act that would otherwise invariably lead to the defendant’s conviction and punishment, had been tainted in some objectionable way?

Undercover operations should not be designed or implemented to induce innocent citizens to commit crimes. Entrapment occurs when the operation traps the ‘unwary innocent citizen’ as opposed to the ‘unwary criminal.’ Courts have the unenviable task of determining, after the fact, whether or not a person had a criminal predisposition before committing the crime. Law enforcement officers must avoid any form of inducement or they will be subject to the claim by the defence of entrapment.

Some people believe that entrapped defendants are simply not legally culpable for what they have done; others believe, by contrast, that entrapped defendants may be culpable, but are not legally responsible because the police officers have acted improperly toward them. The former approach is the dominant approach and it has been employed by the majority in each of the six American Supreme Court cases concerning entrapment.

In Jacobson v. United States, the U.S. Supreme Court stated, "in their zeal to enforce the law...Government agents 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."

In the Jacobson case, Justice White of the United States Supreme Court, stated, "Where the Government has induced an individual to break the law and the defense of entrapment is at issue...the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents."

The Defendant, Jacobson, had ordered and received from a bookstore two Bare Boys magazines containing photographs of nude preteen and teenage boys. Subsequently, the Child Protection Act of 1984 made illegal the receipt through the mails of sexually explicit depiction of children. After finding Jacobson's name on the bookstore mailing list, the Government sent mail to him to explore his willingness to break the law. Some mailings claimed a desire to promote sexual freedom through lobbying efforts. Some mailings discussed concerns regarding censorship.

After 26 months of Government mailings it finally solicited Jacobson to order child pornography. He was arrested after a controlled delivery of the magazine ordered, but a search of his house revealed no materials other than those sent by the Government.

The Court, in agreeing with Jacobson that he had been entrapped, stated that the Government failed, as a matter of law, to show any predisposition on the part of Jacobson to commit the crime charged. The fact that no material other than that mailed by the Government, and the two Bare Boys magazines purchased when it was not illegal to do so, was found in Jacobson's home was significant to prove that he had been improperly induced to commit a crime.

The Court concluded, "When the Government's quest for conviction leads to the apprehension of an otherwise law abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene." And intervene the court did.

In United States v. Burkley, a court ruled that “inducement by the government can take the form of "persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, pleas based on need, sympathy, or friendship, and any other government conduct which would create the risk of causing an otherwise un-predisposed person to commit the crime charged."

For example, the Maine Supreme Judicial Court found entrapment where a police officer commanded an intoxicated defendant to move his automobile and then charged the defendant with operating under the influence of alcohol. The Court found the officer's command was a form of inducement as he was acting under color of apparent authority.

The most common form of inducement is badgering or repeated encouragement by law enforcement of the suspect to violate the law. The actions of informants working for or at the direction of law enforcement are also subject to the entrapment defense. The law enforcement agency cannot circumvent the defense of entrapment by claiming ignorance of the informant's conduct.

Sting operations must be carried out very precisely by police officers in order to avoid claims of entrapment by defendants. In order for this defense to work, the defendant must prove that he or she would not have committed the crime if it hadn't been for law enforcement's involvement. Since most police officers are very careful to follow the rules, these defenses rarely hold up in court.

For example, sting operations are frequently used to catch prostitutes on city streets. A police officer in plain clothes approaches a prostitute and implies through his motions and demur that he is seeking favors from the woman of the street. Then, like the fly in the spider’s web, she makes an offer and is entrapped. To catch Johns (customers of prostitutes) a female officer poses as a prostitute. In order for the operation to work, however, the officer cannot solicit prostitution from anyone, in any way. Otherwise, this would qualify as entrapment. Instead, they wait for someone else to solicit, at which point they can be arrested.

Let's say you're walking down the street at night, and a scantily-clad woman approaches you. She's an undercover police officer posing as a prostitute, but you don't know this, so you strike up a conversation. She gets irritated that you haven't made a move, so she says, "Hey, I'll have sex with you for fifty bucks." In this case, even if you reply with, "Your place or mine?", you could probably have a valid case for entrapment. The reason is that she was persistent in her offer.

Police involve themselves in high speed chases, traveling beyond posted speed limits. Police pose as prostitutes and communicate for that purpose in order to gather evidence. Police buy, possess, and transport illegal drugs on a daily basis during undercover operations. In a perfect world this would not be necessary but, patently, illegal drug commerce is neither successfully investigated, nor resisted, by uniformed police peering through hotel room transoms and keyholes or waiting patiently at police headquarters to receive the confessions of penitent drug traffickers.

Is the police officer committing a crime or is an accomplice by instigating a crime? The Canadian Criminal Code presently prescribes justification for policeman and others in a number of respects where they are proceeding to enforce the law, as, for example, by arresting offenders. This is designed as an aid to enforcement, and presumes that the enforcing officers are not themselves participating in the criminal activity that they are seeking to curb. That is where the term mens rea applies. This means criminal intent. Whatever the intent of the officer is, he doesn’t have the criminal intent to sell stolen goods for the purpose of making money such as thieves do. As servants of the people, the police are given the discretion as are all police officers, to seek out criminality by whatever means seem suited to the task. However, no authority in any jurisdiction is cited for the proposition that this discretion extends to adopting methods which entrap innocence citizens who don’t have the propensity to commit a crime, into committing a crime.

This raises another interesting question. Would you have a defence of entrapment if a plain-clothed police officer approached you on the street and tried to sell you stolen goods and he kept lowering the price to entice you to buy the so-called stolen goods and you finally gave him the money and he gave you the so-called stolen goods?

Your defence counsel could argue that at the time the undercover officer contacted you, he did not have a reasonable suspicion that you were involved in any form of criminal activity. He could also raise the defence that you didn’t form the criminal intent to buy stolen goods because you didn’t know that they were stolen.

The basic rule articulated in the Mack decision is that the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular activity.

Of course, you could also argue that just because the cop told you that the goods were stolen, doesn’t mean that they were stolen and because the goods weren’t actually stolen but were instead used as a prop, you couldn’t be convicted of buying stolen goods.

But suppose you were a well-known fence who bought stolen goods and the police propositioned you to buy the goods in the trunk of your car and they too were not actually stolen.

You could be convicted of conspiring to commit a crime, to wit; buy stolen goods. But for there to be a conspiracy, there has to be a co-conspirator. Is the police officer a conspirator when he offers to sell so-called stolen goods to a fence?

While it is a crime, to sell stolen goods, it would never to come to fruition because although the police officer offers to sell the so-called stolen goods, he had no mens rea to be a conspirator with you as a fence for stolen goods.

As to the fact that the goods you bought weren’t actually stolen, keep in mind that drug traffickers have been convicted of conspiracy to buy illicit drugs even though the stuff they bought wasn’t illicit drugs.

The leading case in Canada on the subject of entrapment as a basis for a stay of prosecution is Mack. Mr. Justice Lamer stated in the court’s decision the basic principle as follows:

"It is the belief that the administration of justice must be kept free from disrepute that compels recognition of the doctrine of entrapment. In the context of the Charter, this court has stated that disrepute may arise from judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies."

In Collins v. The Queen, the Supreme Court of Canada stated that the same principle applies with respect to the common law doctrine of abuse of process. The court said that conduct which is unacceptable is, in essence, that which violates our notions of ‘fair play’ and ‘decency’ and which shows blatant disregard for the qualities of humanness which all of us share.

One other principle which bears noting is that the court will only intervene to remedy an abuse of process in the clearest of cases. The court stated in R. v. Power, this "amounts to conduct which shocks the conscience of the community, and is so detrimental to the proper administration of justice that it warrants judicial intervention."

The case I wrote about that took place in the State of Maine is a good example of conduct that would shock the conscious of the community and warranted judicial intervention.

Legal responsibility, at least in criminal cases, is different from moral responsibility. We do not hold a person legally responsible if the police have behaved inappropriately toward him in some part of the process that would, as a result of improper police conduct, lead to his punishment. We have court decisions that tell us when arrest, prosecution, conviction and punishment is appropriate and when they are not and if not, we should not proceed legally any further against the accused or defendant. In many cases, the courts have ruled that the defendants are not legally responsible for the crimes that they were accused of when the police procedures were not followed correctly.

We must not fetter the hands of the police in fighting crime because in doing so, we as a society suffer at the hands of the criminals. However, we must take care that we don’t, as honest and caring members of society, permit the police to entrap honest citizens into succumbing to temptations that we as humans are capable of doing, resulting in such citizens committing crimes they normally would not commit.