Colorado State A Limited Defense of What Some Will Regard as Entrapment Article Critique Using the CSU Online Library, please locate an article regarding e

Colorado State A Limited Defense of What Some Will Regard as Entrapment Article Critique Using the CSU Online Library, please locate an article regarding entrapment.
Your article should be no more than five years old and should come from a
professional or scholarly journal. After reading the article and briefly
summarizing the purpose for the study, address the following questions:
What the main point of the article?
Who is the intended audience?
Do the arguments offered by the author(s) support the article’s main
point?
What evidence supports the main point?
What is your opinion of the article? Do you agree with the article’s
findings?
What evidence, either from the textbook or additional sources, supports
your opinion?Your paper should be a minimum of three pages in length, not counting the
title page and references. Use APA format for your paper, including all
references and in-text citations. Article attached Legal Theory, 23 (2017), 283–306.
© Cambridge University Press 2017 0361-6843/17
doi:10.1017/S1352325217000271
A LIMITED DEFENSE OF WHAT
SOME WILL REGARD AS
ENTRAPMENT
Richard L. Lippke
Department of Criminal Justice, Indiana University
ABSTRACT
This paper defends pro-active policing measures that offer reasonable assurance that
the authorities will elicit crimes from citizens that would likely have occurred anyway. Such pro-active measures generally should be directed only at citizens who
the authorities can demonstrate to a court have active intentions to commit crimes,
must mimic the kinds of opportunities already available to targeted citizens, must be
abandoned if the citizens to whom they are offered appear to renounce their criminal
intentions, and must be a last resort. They should also be focused on the prevention of
serious harm rather than vice crime. Pressuring targeted citizens to accept the opportunities presented to them should be prohibited. When government officials exceed
the remit of their pro-active policing warrants, the remedy should be the dismissal of
all charges stemming from their overreach.
The debate about forms of what has been termed “pro-active” policing has
gone on for some time. Pro-active policing is actually a rather broad category. It is usually distinguished from “reactive” policing, wherein government authorities move into action after crimes have already occurred and
the perpetrators are sought. Pro-active policing could include police surveillance of an area where crimes have been occurring in the effort to catch
perpetrators “in the act.” I am going to assume that such surveillance is defensible, at least in certain times and at certain places.1 My focus will be on
forms of pro-active policing in which the authorities take steps to elicit criminal offending, perhaps verging over into what scholars and the law term
“entrapment.” In these forms of pro-active policing, the authorities do not
simply “wait and watch” for crimes to occur; they offer persons suspected of
having proclivities to commit crimes opportunities to do so. More than this,
1. Of course, we would want to make sure that such surveillance does not intrude on legitimate expectations of privacy and is not conducted in ways that are discriminatory.
283
284
RICHARD L. LIPPKE
the authorities sometimes coax or pressure persons into committing them.
As the forms of official influence over the commission of crimes by citizens
become more involved or aggressive, concerns about such influence tend
to intensify. Indeed, some scholars, as we shall see, regard any official involvement in the origins of criminal offending as problematic. They would
prefer that the authorities “react” to crime, rather than “create” it.
My aim is to defend limited forms of pro-active policing in which the authorities elicit criminal behavior. I believe that the authorities should be
permitted to extend opportunities to commit crimes to persons in situations
where the authorities can convince a court that those persons have active
intentions to commit the crimes. But in offering such opportunities, the
authorities should be required to observe strict limits. Failure to get court
approval or abide by the relevant conduct strictures should entitle persons
subsequently arrested and charged with crimes to have all charges against
them dropped in pre-trial (or pre-plea) hearings. In other words, my view
is that overly aggressive forms of pro-active policing should not be grounds
for the assertion of a defense at trial by persons who succumb to them; instead, the “victims” of such policing should be able to appeal to the courts
for the discontinuance of prosecutions against them.2 Pro-active policing of
the sort that sometimes veers over into what is commonly regarded as entrapment is a morally fraught government activity, one that should be more
carefully monitored and regulated than it currently is. It should also, I believe, be limited to the prevention of more serious crimes and be something
of a last resort.
The account I have just sketched is developed in the second section. Taking my cue from a recent article by Jeffrey Howard, I contend that government officials should generally refrain from “subverting the morality” of citizens by inducing them to act in ways that the officials know are wrong and
legally prohibited.3 Howard regards the non-subversion principle as one of
more or less absolute weight, and views all forms of pro-active policing as
contrary to it. I argue that the non-subversion principle has to be weighed
and balanced against other principles, the principle of preventing serious
harm chief among them. Also, I contend that some forms of pro-active policing seek merely to change the timing and location of crimes that we have
good reason to believe would have eventually occurred in the absence of
official enticements to commit them. Whether this is a highly objectionable
form of moral subversion is less clear than Howard seems to believe. The key
will be to design and utilize pro-active policing measures that offer us reasonable assurance that the authorities are merely precipitating crimes that
2. Other scholars have claimed that entrapment should be treated in this way. See Maura F.
J. Whelan, Lead Us Not into (Unwarranted) Temptation: A Proposal to Replace the Entrapment Defense
with a Reasonable Suspicion Requirement, 133 U. Penn. L. Rev. 1193 (1985); 3 Antony Duff,
Lindsay Farmer, Sandra Marshall & Victor Tadros, The Trial on Trial: Towards A
Normative Theory of the Criminal Law (2007), at 242–247.
3. Jeffrey W. Howard, Moral Subversion and Structural Entrapment, 24 J. Pol. Phil. 24 (2016).
A Limited Defense Of What Some Will Regard As Entrapment
285
likely would have occurred anyway. We live in a world in which the authorities sometimes learn of impending criminal conduct that they lack other
viable means of preventing. In such cases, they are reacting to something,
albeit not to crimes already committed.
In the first section, I discuss the standard “subjective” and “objective” accounts of the entrapment defense and indicate what I take to be their main
defects. This is well-worn territory in the scholarly literature. Thus, I limit
my comments to defects that set the stage for my own account. I also explain
why it seems odd to cast police efforts to induce the commission of crimes
as a defense.
In the third section, I address various objections to my account, giving
special attention to the arguments of those who are closer to “absolutists”
about barring the kinds of pro-active policing efforts that I defend. I also
consider some cases that are difficult for my own account, ones that I concede might force us to relax one or more of the conditions we should place
on pro-active policing measures. We ought always to be uneasy about permitting the authorities to act in ways that might produce criminal conduct that
would not have occurred but for the opportunities presented by the authorities. But the prospect of preventing grave harm in cases in which few other
options exist warrants our supporting pro-active policing measures that we
would otherwise abjure. Finally, I address the objection that since harm typically has not occurred and could not have occurred when the authorities
employed pro-active policing measures, it is unclear why the targets of such
measures should be punished for their acts.
I. SUBJECTIVE AND OBJECTIVE ACCOUNTS OF
ENTRAPMENT
The core objection to certain forms of pro-active policing was succinctly
captured by the United States Supreme Court in the case of Sorrells v. United
States.4 In Jonathan Carlson’s words, the Court found that “it is improper to
impose criminal sanctions upon a person who would not have engaged in
criminal conduct absent an effort by the government to induce such conduct.”5 However, the Court split on how to understand the rationale for the
defense of entrapment. Some justices adopted the “subjective” account of
entrapment, according to which those accused of crimes ought to be able
to assert the defense if they can establish that they had no “predisposition”
to commit the crime or crimes with which they have been charged. The subjective account relies on the intuition that the actions of the police induced
the desire and intention to commit the crime and that these would not have
4. See Jonathan C. Carlson, The Act Requirement and the Foundations of the Entrapment Defense,
73 Va. L. Rev. 1011, 1051 (1987). See also Sorrells v. United States, 287 U.S. 435 (1932).
5. Carlson, supra note 4, at 1051. See also Andrew Altman & Steven Lee, Legal Entrapment,
12 Phil. & Pub. Aff. 51, 60 (1983).
286
RICHARD L. LIPPKE
existed in the absence of those actions. Hence, those without predispositions who succumbed to police inducements ought to be acquitted even
though they committed the offense(s) with which they have been charged.
Other justices adhered to the “objective” account of entrapment, which eschews focus on the mental states of the accused and instead zeroes in on the
conduct of state agents. On this account, the accused should be entitled to
assert the defense of entrapment if they can show that the police “crossed
the line” from, say, merely presenting opportunities to commit one or more
crimes, to more actively coaxing or persuading the accused to do so. On the
objective account, regardless of whether or not the accused had predispositions to commit crimes, the overly pushy actions of the police are deemed
to have been the key factor in producing the offending act(s). In the absence of such official conduct, the crimes would not have occurred and so
the accused should be acquitted.
Numerous objections to these two accounts can be found in the entrapment literature, but let me focus on the ones that prefigure my limited defense of pro-active policing.6 Start with the subjective account. First, there is
the rather amorphous nature of a “predisposition” to offend. Does one have
such a predisposition if one has thought once or twice, or maybe a number
of times, about committing some type of crime but never proceeded to actually do so? Or does one have to have at least formed an intention to commit
the crimes one has thought about? Thoughts or fantasies about crimes are
probably quite common, but they still might distinguish persons who have
had them from those who never have. Formed intentions will be rarer, but
some individuals who have them might never have taken any steps to act on
their intentions. It seems unclear, in that case, whether they have “predispositions to offend.” Further, would having acted on such intentions once or
twice, long in the past, show that one has, now, a predisposition to offend?
Courts in the United States tend to answer this in the affirmative, as it is notoriously difficult for those with criminal histories to assert successfully the
subjective version of the entrapment defense.7 Yet what if one has not had
any active intention to commit an offense of the kind in question for years?
Does one still have a “predisposition” to offend? Again, the answer to that
question seems far from clear.8
6. For discussion, see Carlson, supra note 4, at 1023–1051; Whelan, supra note 2, at 1203–
1216; Howard, supra note 3, at 25–28; Gerald Dworkin, The Serpent Beguiled Me and I Did Eat:
Entrapment and the Creation of Crime, 4 Law & Phil. 17 (1985); Paul H. Robinson, Criminal Law
Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199 (1982); B. Grant Stitt & Gene G. James,
Entrapment and the Entrapment Defense: Dilemmas for a Democratic Society, 3 Law & Phil. 111 (1984);
Bennett L. Gershman, Abscam, the Judiciary, and the Ethics of Entrapment, 91 Yale L.J. 1565 (1982).
7. Gershman, supra note 6, at 1580; Carlson, supra note 4, at 1039; Whelan, supra note 2, at
1207.
8. For strong skepticism about the usefulness of the notion of a “predisposition” to offend
in the entrapment debate, see Ronald J. Allen, Melissa Luttrell & Anne Kreeger, Clarifying Entrapment, 89 J. Crim. L. & Criminology 407, 413 (1999).
A Limited Defense Of What Some Will Regard As Entrapment
287
This leads to a second objection to the subjective account. Surely it ought
to matter what the authorities do by way of inducing persons to offend, as
the objective account insists.9 There is a continuum of official inducements
from merely presenting citizens with opportunities to offend, to coaxing
them to do so, entreating them to do so, berating them if they refuse to do
so, and, in the extreme, threatening them if they continue refusing. It seems
incongruous to say that a person with a criminal history long in the past is
not entitled to the entrapment defense because she has a predisposition to
offend, no matter how much pressure was exerted on her by the authorities
to offend again.
Conversely, suppose that a person has never had any intention to offend
in any way, or has never entertained any thoughts or fantasies about doing
so, but jumps at doing so when offered an opportunity by the authorities.
An undercover agent offers someone narcotics or illicit sex and the targeted
individual thinks, “Well, why not?” and, by accepting the offer, commits a
crime. Granted, it will be exceedingly difficult for the target to prove, in
a court of law, that he had no predisposition to offend, but it is not farfetched to believe that there might be individuals who spontaneously snatch
at opportunities to commit crimes. Perhaps the person was simply never before presented with the relevant option and had not much thought about
committing the crime in question. Why should such a person be entitled
to the entrapment defense? Usually, we expect citizens to show “reasonable
firmness” in the face of temptations and to therefore resist their criminal
impulses.10 Yet on the subjective account of the entrapment defense, the
impulsive offender might be entitled to the defense because he had no “predisposition” to offend. That seems odd.
Third, the subjective account appears to leave no room for citizens having occurrent or active intentions to commit crimes but renouncing (or
abandoning) them before attempts to commit them get under way or too
far under way. Why do I say this? Well, imagine that a citizen has an active
intention to commit an offense of a certain kind and is approached by an
undercover officer who, initially at least, merely presents the citizen with an
opportunity to commit it. Suppose that the citizen is tempted to criminally
act but at the last moment, thinks the better of it and declines the opportunity. Undaunted, the undercover agent persists and gradually ratchets up
the pressure, though stops short of threatening the citizen. Eventually the
citizen succumbs and commits the offense. The subjective account of entrapment would presumably deny the citizen the defense. After all, she had
more than a vague predisposition to offend; she had an active intention to
do so. Yet there seems something troubling about the undercover agent’s
refusal to acknowledge and respect the citizen’s repeated declinations of
opportunities to offend. We should want those tempted to commit crimes
9. Whelan, supra note 2, at 1212; Carlson, supra note 4, at 1039.
10. Whelan, supra note 2, at 1208.
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RICHARD L. LIPPKE
to renounce their intentions, even if it is at the last moment.11 The subjective account’s indifference to how government agents act excuses them
from having to honor the apparent abandonment of criminal intentions by
citizens, and that is troubling.
Turning to the objective account, the first objection is that it pays too little attention to the intentions of the citizens who are targeted by pro-active
policing. Surely we do not want government agents to go on “fishing expeditions,” offering citizens who they have no or little reason to believe are
intent on committing crimes the opportunity to do so. The government
should not be a random “virtue tester,” because this treats citizens as if they
are prima facie suspect when it comes to exercising responsibility under
the criminal law.12 Virtue testing seems in conflict with the presumption of
innocence, or at least with a non-presumption of guilt on the part of the
government in relation to its citizens.13 If such a dispiriting orientation by
the government in relation to citizens is to be avoided, then pro-active policing measures ought to be responsive to evidence that some citizens are, in
fact, actively inclined to commit or seeking to commit crimes. We might
understand a “probable cause” requirement (or, perhaps weaker, a “reasonable suspicion” requirement) as the residue of the commitment to reactive
policing.14 By this I mean that if the government has to first demonstrate
that it has plausible evidence that a citizen has an active intention to commit a criminal offense, it is reacting to something independent of it and not
just “creating crime.” Granted, it is not, at that point, reacting to completed
crimes, only to their precursors as it were. But the government is reacting to
something worrisome and that seems different from drumming up crimes
by offering opportunities to commit them to citizens who it has no reason
to suspect are bent on offending.
Second, though the objective account seems right in asking us to focus
on the differences among the actions that government agents might take
to induce offending, it goes too far in conceptualizing actions that cross
that line as constituting grounds for a full-fledged excuse. Suppose that undercover agents go beyond presenting their targets with opportunities to
offend. In the face of reluctance by the targets to take up the proffered
opportunities, the undercover agents coax, actively seek to persuade, or belittle their targets until their targets finally give in and accede to the undercover agents’ inducements. Most supporters of the objective account would
11. There is considerable debate about when the “last moment” exists, or in other words,
when an attempt to commit a crime has sufficiently gotten under way such that renunciation is
no longer possible or, at most, such that it might serve as a mitigating factor in punishment. For
helpful discussion of these issues, see Larry Alexander & Kimberly Kessler Ferzan (with
Stephen Morse), Crime and Culpability: A Theory of Criminal Law (2009), at ch. 6.
12. Dworkin, supra note 6, at 33; Carlson, supra note 4, at 1047.
13. For discussion of the presumption of innocence, and the difference between it and the
non-presumption of guilt, see Richard L. Lippke, Taming the Presumption of Innocence
(2016).
14. Whelan, supra note 2, at 1216; Dworkin, supra note 6, at 33.
A Limited Defense Of What Some Will Regard As Entrapment
289
argue that such government persistence and pressure crosses the line, such
that citizens who commit crimes in the face of it ought to be able to assert
successful entrapment defenses at their trials. But why should a little government pressure constitute a full-fledged excuse for offending?15 Usually,
we make it rather hard for persons accused of crimes to succeed with excuse
defenses. Consider the defense of duress in this regard.16 Persons accused
of crimes have to show that they were, or someone close to them was, under a threat of death or grave bodily injury in order to successfully make
out a defense of duress. Accused persons who asserted that they ought to
not be convicted because someone coaxed them, actively persuaded them,
insisted that they commit crimes, or belittled them for declining to do so
would be effectively laughed out of the courtroom. Citizens are expected
by the criminal law to have a little backbone—to resist others importuning
them to commit crimes, even when that importuning is persistent or persuasive. Only when active and serious threats are employed to…
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