By Scott Brantley, Criminal Justice Program Co-Chair, Associate Professor
The word entrapment has been in the news lately. Here in Cleveland (home of Chancellor University), five (5) individuals were recently arrested and charged in federal court with conspiring to detonate a bomb(s) to destroy a bridge which handles a large amount of traffic and commuters each day. One lawyer has openly professed his belief that his client was entrapped by the government to commit this offense. Let’s discuss this defense and look at what the legal definition of entrapment is.
If a person is ready and willing to break the law and the Government agents (police) merely provide an opportunity for the crime, there is no entrapment. It is not entrapment for an undercover agent to offer to engage in an illegal activity with the person. A person is not a victim of entrapment if he was ready, willing and able to commit the crime charged, if an opportunity presented itself, as long as law enforcement did no more than offer an opportunity. You often see this defense in prostitution cases where the defendant (the “john”) alleges that he was tricked, trapped or induced into the criminal activity by the undercover police officer posing as a prostitute. That is why officers are schooled in what to say and what not to say when approached.
A successful entrapment is a complete defense to a criminal charge because "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992). It is a defense that is rarely successful. To present a valid entrapment defense the defense attorney must prove two elements: (1) that the government induced the crime, and (2) that the defendant lacked the predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). What exactly are inducement and predisposition?
Inducement is the first threshold issue in the entrapment defense. The government's use of artifice, stratagem, pretense, or deceit does not establish inducement. A D.C. Circuit opinion in 1984 stated that inducement is shown only if the government's behavior was such that "a law-abiding citizen's will to obey the law could have been overborne". A Fifth Circuit case, United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989) held that inducement is shown if the government created "a substantial risk that an offense would be committed by a person other than one ready to commit it". As you can see inducement is not that easy to prove.
Secondly, even if inducement has been shown, a finding of predisposition is fatal to an entrapment defense. The predisposition inquiry focuses upon whether the defendant "was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime." Also, predisposition may exist even in the absence of prior criminal involvement: "the ready commission of the criminal act," such as where a defendant promptly accepts an undercover agent's offer of an opportunity to buy or sell drugs, may itself establish predisposition. Jacobson, 503 U.S. at 550.
Now, knowing what you do about the entrapment defense, do you think (from what you have read or heard) that it will be successful in the Cleveland case mentioned above? In conclusion, the entrapment defense is one that is often alleged or claimed but one that is difficult to actually prove.