"The Government Beguiled Me": The Entrapment Defense and the Problem of Private Entrapment

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Introduction

In the United States, a criminal defendant can show himself to be not guilty of the crime of which he is accused by showing that he was "entrapped" by agents of the government. Entrapment is not merely a mitigating factor to be considered in sentencing a defendant who is acknowledged to be guilty of a crime; it is not treated in the law in the way, for instance, a defendant's poverty is often treated, as providing reason to give a guilty defendant a lighter sentence than an equally guilty but rich defendant, who also stole for money. Rather, entrapment constitutes a complete defense: An entrapped defendant is simply not guilty of violating the law under which he is being prosecuted. Those who think that there would be something wrong with a legal system that did not allow the entrapment defense have, in the background of their thoughts, a particular picture of the conditions under which it is appropriate to hold a person legally responsible for his behavior, conditions that are absent when that person has given in to certain temptations supplied by the government. They accept, that is, however implicitly, a theory of legal responsibility under which certain people who, under certain circumstances, give in to a temptation issued by the government are thereby, and on those grounds alone, rightly excused from legal responsibility. This paper describes some of the features of such a theory, a theory from which it follows that the entrapment defense is an essential element in a just legal system.

In the very first case in which a U.S. court considered the entrapment defense, Board of Commissioners v. Backus (29 How. Pr. 33, 42 (1864)), a New York court rejected it on the grounds that God refused to excuse Eve when she opined, "The serpent beguiled me, and I did eat." (1) If the excuse of "beguilement" wasn't good enough for God, why should it be good enough for the court? (2) In offering this justification for its action, the court chose to interpret the defense as claiming, generally, that "beguiled" defendants are not guilty, a claim it took to be false. In fact, however, defendants who offer the defense are claiming not just to have been beguiled, but also to have been beguiled by the government. The court assumed that this aspect of the defense was irrelevant. They assumed, that is, that government beguilement is no more an excuse than serpent. Call this "the problem of private entrapment": A justification of the entrapment defense must explain why it is that, had a defendant who successfully employs the entrapment defense been tempted by a private party, instead of the government, he would not have been excused from legal responsibility. (3) In this first entrapment case, then, the court assumed that there could be no solution to the problem of private entrapment, and so rejected the defendant's argument. (4)

With the goal of describing part of the theory of legal responsibility underlying the entrapment defense, this paper aims to solve the problem of private entrapment. (5) Imagine a pair of defendants who act precisely the same way in response to a temptation offered by another person whom each believed to be a private party, not working for the government. Perhaps both defendants are approached by someone who claims to be able to provide security codes for a facility holding something worth stealing to someone willing to steal it, and imagine that both defendants, neither of whom has done, or contemplated doing, anything like this before, give in to the temptation and are arrested on leaving the facility with the stolen goods in hand. It will be argued that they differ in responsibility if one of them was tempted by a private party while the other, unbeknownst to him, was tempted by an agent of the government acting with the aim of prosecuting the defendant should he give in to the temptation. (6)

The paper is structured as follows. Section 1 defines various concepts useful for thinking about entrapment and situates the problem of private entrapment within the conceptual framework described. Section 2 draws out the details of the first of two broad strategies for justifying the entrapment defense: an approach according to which entrapment undermines a certain class of defendants' (those who are not "predisposed") culpability for the crime. The section argues that those who adopt this approach are committed to a retributivist justification of legal punishment, in contrast to other sorts. This result opens the door to the possibility that the privately entrapped are, and the governmentally entrapped (and unpredisposed) are not, deserving of legal punishment, a claim that will be argued for in section 4. Section 3 turns to the second broad strategy for justifying the defense: the approach according to which the defense is justified because entrapment involves unacceptable action on the part of the government, quite independently of the culpability of the defendant. The Model Penal Code's test for entrapment is used as an example of such an approach. The section argues that any adequate effort to pursue this strategy necessarily encounters the problem of private entrapment; the problem is solved from this approach only at the cost of the adequacy of the justification of the defense supplied. Section 4 identifies a necessary condition for desert of legal punishment and argues that the privately entrapped satisfy that condition, as do the predisposed, while the governmentally entrapped and unpredisposed do not. Thus, the problem of private entrapment is solved. By the end, then, we will have a clearer picture of what one needs to think legal responsibility is, and what sorts of conditions undermine it, if one of the strongest obstacles to the justification of the entrapment defense is to be overcome.

1. Sharpening the Problem of Private Entrapment

In all the cases, and hypothetical cases, that concern us, the defendant gave in to a temptation to commit a crime, a temptation provided by another party. This class of cases is not as large as one might think, for there is a difference between taking bait, or merely availing oneself of an opportunity, and giving in to temptation. Say, for instance, that the police leave a door unlocked and lie in wait to see if anyone tries, opportunistically, to steal what is behind it. Someone who takes the bait cannot avail himself of the entrapment defense merely on the grounds that he would not have been able to take the goods had the government not left the door unlocked. In this case, the government does not offer the crime to the defendant under the description banned by the law. The government never says to him "Why don't you steal that stuff?" for the purpose of causing him to do so. An opportunity does not count as a temptation to perform a particular type of action, in the sense in which the term "temptation" will be used here, unless it presents the action under the description that defines the relevant type of action. If you tempt someone to steal something then you must present to him the opportunity to steal as such. The problem of private entrapment arises, then, for all and only those cases in which we are ready to excuse a defendant for giving in to a temptation, in the sense meant here, when it is supplied by the government, but not when it is supplied by a private party. (7)

The notion of temptation just defined provides a first step, although only a first step, toward distinguishing bogus entrapment defenses from legitimate. A defendant's entrapment defense is to be rejected if the government never represented the act it made available to the defendant under the description banned by the law. However, not every defendant who acts in response to a genuine, government-supplied temptation should have an entrapment defense available. Additional work needs to be done to distinguish among defendants who acted in response to a government-supplied temptation. How you choose to draw the line among these defendants will indicate what you take to be the fundamental basis of the entrapment defense; it will indicate, that is, what you take to be the crucial feature of a case that makes a not-guilty verdict appropriate. Two broad approaches can be taken in drawing this line.

To understand the two approaches for distinguishing among defendants who employ the entrapment defense, and the two associated justifications of it, it helps to have in hand a conception of two parallel aspects of legal responsibility. Both legally responsible and morally responsible actions are brought about in the familiar way that qualifies them minimally to be held to legal or moral standards, respectively. At the least, this means that the actions for which the agent is being held responsible were not subject to certain pressures, such as coercive pressures, that seem to undermine their capacity to reflect the facts about the agent that we take ourselves to be most concerned with in assessing legal or moral responsibility. It is possible, in fact likely, that we have different concerns in judging someone legally, as opposed to morally responsible, and this difference might manifest itself in a difference in what does and does not count as action that is appropriately held to legal and moral standards, respectively. But still, both legal and moral responsibility assessments are sensitive to the particular way in which the act being assessed came to be performed.

However, in the moral case, the question of whether or not it is appropriate to punish or in some other way censure someone who has acted wrongly does not depend on the behavior of those who are to judge him and administer his punishment. That is, a person has genuinely done wrong and is genuinely morally responsible for his behavior even if he is surrounded solely by such morally unsavory characters that there is nobody pure enough to be in position to heap him with moral outrage, and even if his transgressions have come to light only as a result of morally objectionable spying and squealing. To say that no one is free enough from sin to cast the first stone at the sinner is not to say that he is not a sinner. However, legal responsibility, at least in criminal cases, is different from moral in this respect. We do not hold a person legally responsible if the government has behaved inappropriately toward him in some part of the process that would, given perfect governmental conduct, lead to his punishment. We have laws that tell us when arrest, prosecution, conviction and punishment do and do not proceed legally, and in some cases we do not take defendants to be legally responsible when these procedures are not followed correctly. That is, for the purposes of legal responsibility, and not usually for moral, the conduct of those doing the assessing and the punishing matters. Broadly, then, we can say that a person is legally responsible for his conduct only if (1) he is what I will call "legally culpable" for it--he has acted in a way banned by the law through a process that qualifies him to be held to the law's standards with regard to that conduct (8); and (2) his treatment by the government with respect to the action has been legally impeccable; it has lived up to the standards of government conduct that the law requires. Substantive criminal defenses are aimed at undermining the prosecution's claim of the defendant's legal culpability; procedural defenses, by contrast, are intended to show that the agent is not legally responsible, even if legally culpable, because the government has not treated him as it ought.

It is difficult to tell whether the entrapment defense is intended to be a substantive or a procedural defense. In acquitting an entrapped defendant, is the court saying that the defendant's agency was undermined in some way such that a statement of the form "He performed an act of type C" is true, but not true in the way that it would need to be to apply the law against acts of that type to his case? Or, rather, is the court saying that some part of the governmental process that would lead to his punishment has been tainted in some objectionable way? Is a court that grants an entrapment defense finding that the defendant did not act badly, by legal standards, or that the government did something it ought not to have done, by legal standards?

In the law, two distinctively different approaches can be found to the question of whether a particular defendant, who performed the acts for which he is being tried as a result of a temptation supplied by the government, was entrapped and is, therefore, not guilty of the crime of which he is accused. There can be found, that is, two different ways of drawing the crucial line between defendants who give in to government-supplied temptation. These two approaches conform precisely to the two aspects just described of legal responsibility under the criminal law. Some have thought that entrapped defendants are simply not legally culpable for what they have done; others have thought, by contrast, that entrapped defendants may be culpable, but are not legally responsible because the government has acted improperly toward them. The former approach is the dominant approach and it has been employed by the majority in each of the six Supreme Court cases concerning entrapment. (9) By contrast, the minority, in all six cases, advocated the alternative approach. Courts that take entrapment to eliminate culpability ordinarily employ what is sometimes called the "Subjective Test" of entrapment, while courts that take entrapment to excuse because of governmental misconduct employ what is known as the "Objective Test." (10) More about these tests shortly.

Whichever test you advocate, you identify a feature that you claim to be present in all and only those cases of governmentally tempted defendants whose entrapment defenses should be honored--either lack of culpability or governmental misconduct. However, that feature cannot also be present in parallel cases of private temptation, in which the defense is not to be granted, without thereby undermining the justification for allowing the entrapment defense when the government is involved. The principle that sorts governmentally tempted defendants--some of their entrapment defenses are to be allowed, some denied--must still allow for lumping of the privately tempted, none of whom should be granted an entrapment defense. This is another way of putting the problem of private entrapment. The test for determining if a governmentally tempted defendant is rightly granted an entrapment defense implies a justification for allowing the defense at all ("such people aren't culpable," or "we don't want our government to act that way"); this justification will be adequate only if it doesn't also imply that it would be justified to allow the defense to the privately entrapped.

Notice that there is great initial plausibility to the following two claims. First: The advocate of the Objective Test gets a solution to the problem of private entrapment for free. After all, if entrapment defenses that are to be honored all involve some kind of government misconduct, then it is no surprise that the privately tempted are denied the defense; by definition, they are not the victims of government misconduct. And, second: The advocate of the Subjective Test cannot hope to solve the problem of private entrapment. After all, if unpredisposed defendants are really not culpable when they accept temptations, it shouldn't matter who is issuing them, and so it seems that they would not be legally responsible if tempted by a private party; this seems especially true given that usually governmentally tempted defendants have no idea that it is the government that is tempting them, but believe themselves, instead, to be tempted by private parties. However, despite their plausibility I will argue that both of these claims are false. The argument for this is spread over the remainder of this paper.

2. The Subjective Test and Retribution

According to the Subjective Test, 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 government 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 (although they may have some other defense available to them). Most courts 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 government, the entrapment defense succeeds if it can be shown that the defendant was not predisposed.

One might understand appeals to predisposition as efforts to capture an intuitive distinction, the distinction between those who would have committed a crime like that in question in the ordinary course of things had the government not entered the scene, and those who would not have. Thus, we can formalize the Subjective Test as follows. Here, S is a defendant who performed an act of type C, a type of action banned by a particular criminal statute, and who did so as a result of a temptation supplied by the government:

   The Subjective Test of Entrapment: S's entrapment defense succeeds
   if and only if If the government had not performed any of the
   actions that culminated in S's acceptance of the temptation it
   provided, it is not the case that S would have performed an act of
   type C on some other relevant occasion.

In most cases, this counterfactual "other occasion" will count as "relevant" if it might be encountered in the ordinary course of things even without special machinations on the part of the government. So, for instance in United States v. Woo Wai (223 F. 412 (1915 U. S. App.)), the defendant was given an opportunity by actual INS agents, whom he knew to be INS agents and who led him to believe they were corrupt, to smuggle illegal Chinese immigrants into the country. He evinced great reluctance to do so on the grounds that he would be caught. The agents assured him that he would not be caught and convinced him of this by noting that he would have the assistance of INS agents interested in concealing the crime. Since it is unlikely that Woo Wai would have, in the ordinary course of things, encountered corrupt government agents in position to aid in both the smuggling of immigrants and the concealing of the crime, and since there was ample evidence that he would only have committed a crime of the sort in question if it seemed extremely unlikely to him that he would be caught, it was ruled that there was not evidence sufficient to support the claim that he had the predisposition to commit the crime. (11)

However, a possible occasion can be considered relevant even if there is good reason to think it very unlikely to occur without help from the government, if there is also evidence that the defendant was seeking it. For instance, in Russell v. The United States (411 U. S. 423 (1973)), an agent of the DEA supplied Russell with a substance that was very difficult to procure and that could be used to manufacture methamphetamine. Russell went on to use the substance for this purpose and sold the drug to the DEA agent, at which point he was arrested. The majority of the court held that the rarity of the substance was not relevant to the question of Russell's predisposition, since there was evidence that he was actively seeking to procure it and, in fact, had succeeded in procuring it in the past. In effect, the majority ruled that the occasion that would have prompted him to perform the crime--receipt of the rare substance--was relevant despite the fact that he was unlikely to have encountered it in the ordinary course of things. It is not hard to see the justification for this practice: A predisposition to attempt a crime is not less salient to responsibility than a predisposition to perform one. Perhaps neither is salient; but if the latter is salient, then so is the former. In cases like Russell, there is good reason to think that the defendant would have found an occasion to attempt the crime, for there is good reason to think that he would have found an occasion to make an effort to procure the rare substance, even if there isn't good evidence to suggest that he would have succeeded in that effort. (12)

Further, and relatedly, a possible occasion can be considered irrelevant, even if it's quite likely that the defendant would have encountered it in the ordinary course of things, for there might also be evidence that he was actively trying to avoid encountering it. In Hampton v. United States (425 U.S. 484 (1976)), for instance, the defendant, who had a past record of illegally procuring and distributing heroin, was attending a drug rehabilitation program in an effort to rid himself of his addiction. There he met an undercover government informant who, after repeated efforts, succeeded in cajoling him to acquire the drug so that the two could use together. The majority of the court ruled that Hampton was not predisposed, despite having had a track record of just such behavior in the past. Animating the decision was the thought that although the defendant might very well have fallen off the wagon in the ordinary course of things, the circumstances that would prompt him to do so were not "relevant" occasions for assessing his predisposition since he was actively seeking to avoid such occasions. The thought here is similar to that involved in Russell: Someone who is seeking to avoid the circumstances that will trigger illegal behavior on his part is best understood to lack a predisposition to attempt a crime, and so to lack the predispositions of a fully culpable defendant.

We can think of the Subjective Test for entrapment, then, as offering an account of predisposition. According to the test, a defendant is predisposed just in case, when we subtract consideration of the government's actions, we find that the agent …