Entrapment

Entrapment in law occurs when an enforcement officer or other government agent suggests, encourages, or aids in the production of a crime that otherwise would not have been committed. The defense is recognized in federal law and also in most states. Alaska statute § 11.81.450, for instance, allows an affirmative defense if, to obtain evidence of the commission of an offense, a public law enforcement official, or a person working in cooperation with the official, induces the defendant to commit the offense by persuasion or inducement that would be effective to persuade an average person, other than one who is ready and willing, to commit the offense.

The U.S. Supreme Court in 1932 upheld the entrapment defense in Sorrells v. the United States, 287 U.S. 485. A federal agent had approached the defendant in his rural North Carolina home and claimed that he was a furniture dealer from Charlotte and had served in the same army unit as David Sorrells. The agent persistently sought to have the defendant sell him liquor, a violation of the National Prohibition statute. Sorrells maintained at first that he did not drink whiskey, but after several visits and persistent requests, he provided the agent with half a gallon of whiskey and was arrested and sentenced to 18 months in prison. The Supreme Court decision stressed that the aim of the government should not be to create crime in order to punish it but rather to prevent crime, and it called for a retrial in which the jury could evaluate Sorrells's claim to having been entrapped.

To overcome an entrapment defense, the state must convince the judge or jury that the individual had a predisposition to commit the criminal act and that the inducement offered was not sufficient in itself to produce that result. This criterion is known as the “subjective test” of entrapment. Some commentators regard this standard as unfair because it places persons with a previous criminal record at a disadvantage because their earlier illegal behavior can be used to demonstrate a predisposition to offend. There also is some philosophical uneasiness about the courts' acknowledgment of the entrapment defense as criminal law rests on free will doctrines that maintain that, except for gross inadequacies such as mental deficiency, all persons, whatever the circumstance, are to be held responsible if they choose to violate the law. If entrapment is a legitimate excuse, it can be argued that growing up in poverty in a crime-ridden neighborhood also ought to be seen as an excusatory circumstance on the ground that it propelled a person into criminal behavior that would not have occurred had that person lived an affluent existence in a crime-free suburb.

The “objective test,” advocated by several judges in the Sorrells case, focuses on the decency and [Page 303]persuasive power of the tactics used by law enforcement personnel to determine whether an entrapment defense will prevail. Its aim is not to excuse defendants but to monitor police behavior so that it adheres to acceptable standards of morality.

Procedures such as radar equipment to detect speeding motorists and two-way mirrors in supermarkets to discover shoplifters are not regarded as entrapment. Police, at times, will use decoys in sites with high crime rates or where a pattern of specific offenses has emerged. The decoys may assume roles such as derelicts, shoppers, or drunks. For example, in a case in which patients complained that a dentist had sexually molested them while they were under an anesthetic, an undercover policewoman posed as a patient, was anesthetized, and was kept under surveillance by a hidden camera, which captured evidence of the dentist's criminal act.

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