Entrapment is not a crime, but rather a defense. It is used to demonstrate that law enforcement agents and a defendant interacted before a crime too place, and that the defendant was encouraged to commit a crime he or she would otherwise not have committed. The law is in place to stop law enforcement agents, police officers, and various other public officials from behaving in an outrageous manner. Entrapment is a defense that can only be brought up against officials, rather than individual members of the public.
Different states have applied entrapment laws in different ways. In the main, however, they use one of two standards to determine whether or not there is a case to be made for entrapment:
1. The objective standard. This means that the defendant puts forward a case for entrapment, and the members of the jury then determine whether the actions of the law enforcement officers could induce a person who is normally law abiding to break the law.
2. The subjective standard. This is much harder to prove and most defense attorneys will avoid it. In subjective standards, members of the jury will determine whether a defendant already had a predisposition to commit a crime. If so, then they become responsible for their actions, whether or not they were induced to follow on this actions by a law enforcement agent or not.
The defense of entrapment is affirmative. This means that the defendant has the ‘burden of proof’. He or she must convince the members of the jury that the actions of the agents involved are synonymous with entrapment.
Entrapment Crimes & Charges
Entrapment itself is not a crime. Hence, no charges will be brought against law enforcement agents for entrapment, although they may face disciplinary action. The action of entrapment means that the agents gave a defendant not just an opportunity to commit a crime, but an irresistible temptation to actually do so. This includes things such as flattery, fraud, harassment, or threats.
There is no legal punishment for someone committing entrapment. Rather, whether or not the defense is accepted will determine the punishment of the defendant. As such:
• If the state follows objective standards and a jury agrees that entrapment took place, then the defendant will be found not guilty.
• If the state follows subjective standards and a jury agrees that entrapment took place, then the burden of proof returns to the prosecution, who must then decide that the guilt remains with the defendant who is predisposed to commit the crime. They must, in other words, show that the defendant willingly committed the crime.
Entrapment Sentencing Guidelines
If there is substantial evidence of entrapment in support of the defense, or if the courts believe that a defendant will rely on an entrapment defense, then the courts have a sua sponte duty to provide instructions on entrapment. This instruction can also be requested by the defense, and it must then be provided if they also offer sufficient evidence.
Entrapment Statute of Limitations
There is no statute of limitations on entrapment, as it is a defense, not a criminal act.
• Mathews v. United States, in which case it was determined that a defendant is allowed to raise multiple defenses, even if these are contradictory. In this particular case, Mathews claimed to be innocent of the crime, but stated that should he have committed the crime, it would have been because of entrapment. This case set a precedent for many other cases in which defendants can raise different avenues of defense. (Justia U.S. Supreme Court – Mathews vs. United States)
• Jacobson v. United States, in which case the defendant claimed to have ordered child pornography because he had received communications and mailings from what now appeared to be government agents for 26 months, asking him to do so. The court in this case felt that the government was not able to demonstrate that Jacobson would have made the same decisions had he not had those communications. Additionally, the court determined that, due to the lengthy period of time during which Jacobson received communications, the operation could not be classed as a ‘sting’. (FindLaw – Jacobson v. United States)
• Sherman v. United States, in which case Sherman, a recovering drug addict, proved that he was entrapped in order to sell drugs. In the operation, law enforcement agents had enlisted a drug addict who repeatedly asked Sherman to provide him with drugs. It was unanimously agreed that the case constituted entrapment. Interestingly, the case was almost an exact repeat of the 1932 case of Sorrells v. United States, which was the first case ever in the history of this country where an entrapment defense was accepted. (Justia U.S. Supreme Court – Sherman v. United States)
• United States v. Russell, which is a significant case because it was the first in which entrapment was proven, but the conviction was upheld regardless. Russell argued that he was only able to manufacture illegal methamphetamine because an undercover agent provided him with the missing ingredient. While this was proven to be true, the jury determined that Russell still had the predisposition to manufacture methamphetamine should he not have received assistance from the undercover law enforcement agent. While the conviction was upheld, it was by a very narrow margin. (Justia U.S. Supreme Court – United States v. Russell)
• Hampton v. United States, which is another case in which entrapment was proven, but the conviction was upheld. Hampton was convicted of selling heroin, even though he was able to demonstrate that all the drugs he sold were supplied to him by a DEA agent. His conviction was upheld, by a very narrow margin. This case is significant because it was the last time that there had been a conflict between subjective and objective standards, as all did agree that there was ‘outrageous government conduct’ in the case, even though Hampton was believed to be predisposed. (Justicia U.S. Supreme Court – Hampton v. United States)
Entrapment Quick Links & References
Entrapment Laws by State
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming