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.
Entrapment Laws
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.
Entrapment Punishment
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.
Entrapment Cases
• 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
Entrapment occurs when law enforcement officers or agents induce a person to commit a crime that they would otherwise have been unlikely to commit. The specifics and defenses for entrapment vary by state:
Under Code of Alabama Section 13A-3-31:
- Entrapment is recognized as a defense when an officer induces the commission of a crime using persuasion or other means likely to cause normally law-abiding persons to commit the crime.
Under Alaska Stat. Section 11.81.320:
- Entrapment is a valid defense when the defendant proves that their actions were induced by a public servant, who used persuasion or fraudulent means.
Under Arizona Revised Statutes Section 13-206:
- Entrapment defense applies when the defendant shows that law enforcement agents used undue persuasion, deceitful representation, or inducement to provoke the crime.
Under Arkansas Code Section 5-2-208:
- Entrapment occurs when an officer or their agent induces the commission of an offense using methods that would cause an otherwise innocent person to commit it.
Under California Penal Code Section 646.6:
- The defense of entrapment is available when the defendant can demonstrate that law enforcement officers engaged in conduct likely to induce a normally law-abiding person to commit the offense.
Under Colorado Revised Statutes Section 18-1-709:
- Entrapment is defined as inducing a person to commit an offense in order to prosecute them, where they were not predisposed to commit any such offense.
Under Connecticut General Statutes Section 53a-15:
- Entrapment can be claimed when an officer induces a person to commit an offense by employing methods of persuasion or inducement which create a substantial risk that the offense will be committed by a person other than one who is ready to commit it.
Under Delaware Code Title 11, Section 432:
- A defense of entrapment is provided when it is proven that the criminal design originated with law enforcement officers.
Under Florida Statutes Section 777.201:
- Entrapment occurs when an officer or government agent induces or encourages the commission of a crime, using methods of persuasion or inducement that would cause a normally law-abiding person to commit it.
Under Georgia Code Section 16-3-25:
- Entrapment exists when an officer or a government agent resorts to undue persuasion, deceitful representation, or other enticement to induce the commission of a crime.
Under Hawaii Revised Statutes Section 702-237:
- It is an affirmative defense that the defendant engaged in the prohibited conduct because they were induced or encouraged to do so by a law enforcement officer, or an agent thereof, seeking to obtain evidence for prosecution.
Under Idaho Code Section 18-201:
- Entrapment occurs when the intent to commit the offense originates with law enforcement officers, and they induce a person to commit a crime which they would not have otherwise committed.
Under Illinois Compiled Statutes 720 ILCS 5/7-12:
- Entrapment is a defense when the defendant was induced by a public officer or employee to commit a crime they would not have otherwise committed.
Under Indiana Code Section 35-41-3-9:
- Entrapment is recognized as a defense when the person proves that their conduct was induced by a government agent using persuasive and deceitful tactics.
Under Iowa Code Section 704.10:
- A defense of entrapment is provided for actions induced by a public officer, or a person cooperating with them, which a person with reasonable firmness would not resist.
Under Kansas Statutes Section 21-3210:
- Entrapment exists if the criminal idea is implanted in the mind of an innocent person by law enforcement officers.
Under Kentucky Revised Statutes Section 506.010:
- Entrapment occurs if the defendant proves that the conduct of a law enforcement agent was likely to cause an otherwise law-abiding person to commit a crime.
Under Louisiana Revised Statutes Section 15:455:
- Entrapment defense can be claimed if the defendant proves that they were not predisposed to commit the crime before the encouragement by law enforcement.
Under Maine Revised Statutes Title 17-A, Section 103:
- Entrapment is when a law enforcement officer or a person acting in cooperation with them induces another person to engage in conduct, which they were not previously disposed to commit.
Under Maryland Code, Criminal Law Section 10-306:
- The defense of entrapment is permitted when it is shown that the criminal design originated in the mind of law enforcement officers.
Under Massachusetts General Laws Chapter 274, Section 2:
- Entrapment is considered when the accused was induced to commit acts which they would not have otherwise committed.
Under Michigan Compiled Laws Section 768.21c:
- Entrapment is recognized when the conduct of the police amounts to the creation of a crime that would otherwise not have been contemplated by an innocent person.
Under Minnesota Statutes Section 609.09:
- It is a defense that the individual was entrapped by law enforcement officers or their agents.
Under Mississippi Code Section 97-1-5:
- Entrapment occurs when the accused was persuaded by police or their agents to commit a crime they had no previous intent to commit.
Under Missouri Revised Statutes Section 562.066:
- A defense of entrapment is available if the crime was induced by an officer or agent seeking to obtain evidence for prosecution.
Under Montana Code Annotated Section 45-2-203:
- Entrapment occurs when the creation of the criminal design originates with law enforcement, who then incites someone to commit that crime.
Under Nebraska Revised Statutes Section 28-1416:
- Entrapment is a defense when the criminal intent originates with law enforcement officials.
Under Nevada Revised Statutes Section 207.220:
- Entrapment is proven if the defendant demonstrates that they were not predisposed to commit the crime before law enforcement officers urged them to commit it.
Under New Hampshire Revised Statutes Section 626:5:
- Entrapment may be invoked when an individual commits a crime but was induced to do so by a public official.
Under New Jersey Statutes Section 2C:2-12:
- Entrapment exists where a person engaged in conduct because they were induced by a public servant whom they sought to obtain evidence against them.
Under New Mexico Statutes Section 30-2-3:
- A person is entrapped if they commit a criminal act induced by a law enforcement officer or someone acting under the officer’s direction.
Under New York Penal Law Section 40.05:
- Entrapment is a defense if the defendant admits to committing the act but claims it was induced by law enforcement to trap them into committing a crime they were not predisposed to commit.
Under North Carolina General Statutes Section 15A-1023:
- It is a defense to prosecution that the defendant was entrapped by a government official into committing the offense.
Under North Dakota Century Code Section 12.1-05-11:
- Entrapment occurs when an individual commits an offense due to the persuasion or deceit of law enforcement.
Under Ohio Revised Code Section 2901.12:
- It is an affirmative defense that the accused was induced to commit the offense by police or their agents, using methods not justifiable for law enforcement purposes.
Under Oklahoma Statutes Title 21, Section 1533:
- Entrapment is recognized as a defense when the defendant proves that the actions of law enforcement were such that a person of normal and reasonable firmness would not withstand.
Under Oregon Revised Statutes Section 161.290:
- Entrapment exists if the defendant’s criminal actions were induced by an officer or someone acting for them.
Under Pennsylvania Consolidated Statutes Title 18, Section 313:
- Entrapment occurs when the accused was induced by law enforcement or someone acting on their behalf to commit a crime they would not otherwise have committed.
Under Rhode Island General Laws Section 11-31-6:
- A defense of entrapment can be used when the criminal intent originates with the officials of the government.
Under South Carolina Code Section 16-1-120:
- Entrapment is considered when a person is induced by a public official to commit a crime that they would not otherwise have committed.
Under South Dakota Codified Laws Section 22-5-12:
- Entrapment can be claimed as a defense when the individual was induced by law enforcement to commit the crime, without prior intent to commit it.
Under Tennessee Code Annotated Section 39-11-505:
- Entrapment is applicable if the inducement by law enforcement would have caused a normally law-abiding person to commit the offense.
Under Texas Penal Code Section 8.06:
- Entrapment occurs when the accused engaged in conduct due to conduct by law enforcement officers or under their direction, which would constitute entrapment to a person of ordinary firmness.
Under Utah Code Section 76-2-303:
- Entrapment is a defense if the person was induced by a public servant, or someone acting for the public servant, to engage in unlawful conduct under circumstances which would entrap a reasonable person.
Under Vermont Statutes Title 13, Section 2151:
- The defense of entrapment is available when the person was induced by a law enforcement officer to commit the crime.
Under Virginia Code Section 19.2-269.4:
- Entrapment can be claimed when the crime was the result of undue persuasion by law enforcement, such that a normally law-abiding person would have been induced to commit it.
Under Revised Code of Washington Section 9A.16.070:
- Entrapment is a valid defense if the actions of law enforcement would have caused a reasonable person to commit the offense.
Under West Virginia Code Section 61-11-8:
- It is a defense that the person was entrapped by a law enforcement officer into committing the offense.
Under Wisconsin Statutes Section 939.46:
- Entrapment occurs when the intention to commit the crime comes from the persuasions of law enforcement, not from any predisposition of the accused.
Under Wyoming Statutes Section 6-2-303:
- Entrapment is defined as the conception and planning of an offense by an officer, and their procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.