212 Highlights to The Entrapment Controversy

[Gunnar Larson]

Author: Roger C. Park
Title: The Entrapment Controversy
Source: Minnesota Law Review
Citation: 60 Minn. L. Rev. 163 (1976).

212 Highlights by Brody Larson:
https://drive.google.com/file/d/1rhPWgd_OniZVLeJIlieDBx5VNC2chenn/view?usp=drivesdk


 MINNESOTA LAW REVIEW
I. INTRODUCTION
Consensual crimes are unusually difficult to detect, since
the forbidden acts take place in private and none of the
participants is likely to complain. To expose such crimes, police
have had to resort to the use of informers and undercover offi-
cers. Often, these agents will solicit the commission of a criminal
act for purposes of prosecution. For example, agents offer to
purchase drugs from suspected narcotics dealers in order to
gather evidence of guilt.
Some solicitations are innocuous. An agent who merely asks
for a drink in a speakeasy creates no danger of corrupting the in-
nocent. However, because persons engaged in criminal enter-
prises are wary of strangers, police usually must do more than
simply approach a target and request the commission of a crime.
They must work through an informer trusted by the target, or
have an undercover officer cultivate the target's trust. More-
over, it may be necessary to make multiple requests before
the target agrees to commit the crime solicited.
When agents do more than make a single arms-length re-
quest, they create a danger of inducing crimes by persons not al-
ready engaged in criminal enterprise. For example, an agent
who has formed a close relationship with a drug user may,
by appealing to friendship, be able to persuade him to sell
drugs even though he has never previously done so. The
danger increases if the agent also offers windfall profits, plays
on the target's sympathy (as by pretending withdrawal symp-
toms), or provides assistance that facilitates the crime (as by giv-
ing the target drugs to sell to another agent).
Because of concern about the dangers created by police solic-
itation of crime, almost every American jurisdiction has made
the defense of entrapment available to criminal defendants. The
defense has won acceptance in the federal courts and in every
state except Tennessee.' However, agreement that a defense by this name
should be recognized has not been accompanied by con-
sensus about what its elements should be.
Two opposing versions of the entrapment defense have re-
ceived substantial authoritative support. The first, usually la-
beled the "subjective" 2 approach, focuses upon the culpability of
the particular defendant, asking whether he was predisposed to
commit crimes of the nature charged. If he was ready and will-
ing to commit the offense at any favorable opportunity, then the
entrapment defense will fail even if a police agent used an un-
duly persuasive inducement.3
The other version of the defense, which I will call the
"hypothetical-person" approach,4 focuses upon the inducements used
by police agents. If an agent used inducements likely to cause
a nondisposed person to commit the crime charged, then the fact
that the particular defendant was ready and willing to commit
it will not defeat the entrapment defense.5 Proponents of this
approach hope to deter police misconduct, and to keep the crimi-
nal justice system from being soiled by unworthy action.0
Supreme Court Justices have been the oracles of both theo-
ries of entrapment. In two leading cases decided in 1932 and 1958
-Sorrells v. United States7 and Sherman v. United Statess -the
Court endorsed the subjective defense. However, articulate mi-
norities, led by Justices Roberts and Frankfurter respectively,
urged a version that would focus solely on the issue of whether
police conduct had fallen below proper standards. 9 In the 1973
case of United States v. Russell,'0 a sharply divided Court de-
clined to depart from the doctrine established in Sorrells and
Sherman; four dissenters reiterated the views expressed by the
earlier minorities."
In 1962, the American Law Institute endorsed the minority
view by placing a hypothetical-person definition of entrapment
in its Model Penal Code.' 2 However, despite support by an overwhelming
majority of commentators, 3 the hypothetical-
person defense did not achieve authoritative acceptance in any
jurisdiction until Alaska adopted it by judicial decision in
1969.14 Since then, two other state supreme courts have followed suit,15
and at least four other states have adopted it by
statute. 6 These cases and statutes have invariably formulated
the defense in language similar to that contained in the ALI's Model Penal
Code or the new federal code proposed by the
Brown Commission.17

This Article will evaluate the federal defense and the hypo-
thetical-person defense. Although these versions of the defense
do not exhaust the universe of possible alternatives, 8 they do
seem to be the ones most likely to receive authoritative support.
Therefore, it seems worthwhile to ask which of these two ortho-
dox formulations is more desirable.
My thesis is that the federal defense, with some modifica-
tions, is preferable to the hypothetical-person defense. I will be-
gin with a description of the two defenses, with emphasis upon
how they deal with predisposition and agent misconduct. On the
basis of this description, I will argue that the hypothetical-person
defense creates a greater risk of unjust treatment of individual
defendants than does the federal defense, and that the possibility
of beneficial effects upon conduct of police agents is not strong
enough to justify taking this risk.
I will also respond to various criticisms of the federal test.
Commentators have repeatedly argued that it is based on a ficti-
tious view of legislative intent; that it is confusing and obscure;
that its emphasis upon the "innocence" of the defendant is incon-
sistent with the rule that entrapment by a private person is no
excuse; and that it allows the introduction of unreliable and
prejudicial evidence. Most of these criticisms have not been an-
swered. Academic commentary has lopsidedly favored the hypo-
thetical-person approach, 19 and judicial opinions supporting the federal
test have avoided many of the issues raised by scholars. 20
Finally, I will discuss how the burden of proof should be allo-
cated, and whether the defense should be the province of the
judge or of the jury. I have placed this discussion toward the
end of the Article because resolution of these procedural is-
sues depends largely upon one's views about the substantive is-
sues.
At the close of the Article I have placed a summary of its
principal themes and conclusions.
II. DESCRIPTION OF CURRENT DOCTRINE
The federal defense and the hypothetical-person defense dif-
fer both in substantive definition of entrapment and in ancillary
rules about the admissibility of evidence. This section describes
those differences. Subsequent sections will evaluate the com-
parative merits of the two defenses.
A. SuBsTAxTrm DocTmNE
1. The Hypothetical-Person Defense
Under the hypothetical-person defense, the issue of whether
an agent2 ' used an improper inducement is dispositive. If an
agent caused the commission of an offense with an improper in
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