The Entrapment Debate: Are Undercover Investigations Egregious Conduct or Law Enforcement?

By Jennifer Johnson

'Entrapment', like 'morality', is a word that represents a concept very few people fully understand; yet, is employed to convey the most vehement and earnest of opinions. It is also a word we are hearing more and more of these days -- at cocktail parties, on talk radio and, most importantly, in the courtroom.

The issue of entrapment, as a matter of law, is not new; but, like all things judicial, is of malleable interpretation and application, and thus subject to incessant debate. The 1992 Supreme Court ruling in Jacobson v. United States -- that law enforcement "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"-- is far from determinate and nearly impossible to apply literally to the myriad of follies capable of the human animal. This holds true especially in the modern age of rapidly developing intangible and all-encompassing technology, where the possibilities of criminal activity are as limitless as the means available for their creation and implementation. In this evolving environment, it is becoming increasingly difficult to justly interpret the application of entrapment to criminal defense and police procedure; thus, it is imperative that the foundation of its premise be fully grasped -- and not only by those involved in the mechanics of the judicial system; but, also by those whom that system is designed to serve.

Criminal cases involving possible or employed entrapment defenses are popping up throughout the nation and receiving increasing media attention. The fervent publicity surrounding these cases is bringing the entrapment debate out of the realm of legal-ease and into the public repertoire.

One such case involves a Palm Harbor, Florida man, Dane Andrew Bozarth, 29, who was arrested Mach 20 in Tampa on a felony charge of lewd and lascivious conduct with a child. The charge came after Bozarth arranged a meeting with what he thought to be a 15-year-old girl, whom he had met on the Internet two days earlier. Hillsborough County detectives say Bozarth, a computer consultant, was on a business trip in Denver when he met the 'girl' in cyberspace and initiated a sexually explicit conversation with her.

The teen was actually a detective.

Such 'investigative' tactics are becoming increasingly common; in fact, according to an April 1993 FBI Law Enforcement Bulletin, "Law enforcement officers often employ trickery and deception to catch those involved in criminal activity." What might surprise you is that the bulletin was not designed to discourage or reprimand such stratagem, but rather to spell out how law enforcement officers can best conduct inquests so as to avoid "undercover investigations (giving) rise to successful claims of entrapment."

Contrary to popular belief, executed properly, investigative means like those used in the Bozarth case are perfectly acceptable under the current perimeters of the law. The Supreme Court has recognized that when investigating certain criminal behavior, police may lawfully use a wide array of undercover techniques that, although delusive, do not constitute entrapment.

The question is: What does? And why does law enforcement seem to have such extraordinary latitude to conduct lawful investigations that most would deem Machiavellian?

Entrapment is defined, in criminal law, as an affirmative defense (one in which the defendant has the burden of proof) which excuses a criminal defendant from liability for crimes proved to have been induced by certain governmental persuasion or deceit. Within this definition, there are two views of how entrapment claims may be argued in the courts.

The first, prevailing view is 'subjective' and is used in Federal courts and most State jurisdictions. It requires that a defendant demonstrate that, but for the objectionable police conduct, he or she would not have committed a crime. This means that the predisposition of a defendant to commit an offense is balanced against the actions of the police.

The opposing, dissenting, view is 'objective' and permits an entrapment defense that stresses the illicit governmental action without regard to the defendant's criminal predisposition.

Although the mere presentation of opportunity does not constitute entrapment under either test, the popular 'subjective' view is considerably less friendly to the accused in that the prosecution is permitted to introduce evidence of the defendant's character, past criminal convictions and rumored criminal activities in relation to the defendant's predisposition to commit the crime rather than focusing solely on the wrongfulness of government action.

Although some states do recognize the 'objective' presentation, entrapment defenses argued in this country are almost always considered under the 'subjective' view. Accordingly, the principles and cases discussed in this article focus on entrapment as it argued subjectively.

When considering entrapment defenses, courts deliberate four questions -- the acknowledged answers of which serve as guidelines by which it is determined if an entrapment defense is relevant and can serve to exonerate a defendant for crimes committed.

The first question considered is: Did law enforcement need reasonable suspicion before targeting the accused in an undercover investigation?

Surprisingly, the answer is no. Numerous federal courts have held there is no Federal Constitutional requirement for any level of suspicion to initiate undercover operations. The courts have ruled there is no constitutional right to be free of investigation and that the fact of an undercover investigation having been initiated without suspicion does not bar the convictions of those who rise to its bait.

So, a defendant cannot be exonerated of a crime on an entrapment claim even if he or she can prove that police had no reason whatsoever to suspect even the slightest of criminal inclinations. What they must prove is that were induced by police to commit the crime. This leads us to the second of the four questions: What constitutes inducement?

An officer merely approaching a defendant and requesting that they commit a crime does not. To claim inducement, a defendant must prove he or she was unduly persuaded, threatened, coerced, harassed or offered pleas based on sympathy or friendship by police. A defendant must demonstrate that the government conduct created a situation in which an otherwise law-abiding citizen would commit an offense.

For example, in United States v. Young, the Internal Revenue Service (IRS) placed an undercover female informant at an IRS site to investigate drug activity. The informant became friendly with the male defendant, who hoped the relationship would develop into a romantic one.

During the next four months, the defendant and the informant had contact at work as well as frequent telephone conversations in which they discussed their mutual marijuana habit and the availability of the drug. Five of these conversations were initiated by the informant.

Sometime later, the informant indicated that she had marijuana available for sale and the defendant agreed to find a buyer. The sale was arranged and the defendant arrested and prosecuted.

Clearly inducement, right? Wrong. The court found that the level of contact between the informant and the defendant was not such as to be harassing or coercive. Nor was the friendship such that the defendant would feel compelled to respond affirmatively to the informant's offer for some sort of personal, lawful gain.

A converse example is that of United States v. Skarkie, in which a government informant, who was a distant relative of the defendant's estranged husband, moved in with her and asked her to put him in touch with people who could sell him drugs. Initially, she declined; but, the informant continued to pressure, and ultimately threatened, her. He impaled one of her chickens on a stick and left it outside her back door and later stated that, "What happened to the chicken can happen to people as well."

Skarkie subsequently took the informant to meet a source, who later brought approximately three pounds of methamphetamine to her home. Skarkie and her source were then arrested and tried.

In this case, the U.S. Court of Appeals for the Ninth Circuit found that the Government did induce the defendant to break the law because the informant initiated the idea of a drug sale, repeatedly pressured Skarkie to agree to his plan and threatened her when she indicated that she was reluctant to participate.

Even with the finding of obvious inducement, Skakie wasn't off the hook. Courts that recognize the 'subjective' entrapment view require that a defendant go further and disprove that he or she was not predisposed to commit the crime. If this can't be done, even in proven circumstances of coercion and threats, the entrapment defense fails. Thus arises the third question: What constitutes evidence of predisposition?

Although they require predisposition to be proven (or disproved) above and beyond inducement, most courts consider the two elements of entrapment to be closely related and often the same evidence will establish both. There is a primary distinction, though, between the two: Inducement focuses on the government's conduct, while predisposition focuses on the defendant's actions and statements.

Predisposition is not solely based on a defendant's previous criminal engagements or inclinations. Even in the absence of such evidence, predisposition may be established by showing the defendant's desire to make a profit, an eagerness to participate in criminal activity or a quick response to the government's inducement offer. Meaning, even in circumstances where there was no reasonable suspicion to initiate an investigation, the defendant has proven illicit tactics of government inducement and there is no record or suspicion of criminal activity in the defendant's past, an entrapment defense may still fail if the defendant engaged in the induced activity for profit, monetary or otherwise, or he or she did not demonstrate marked reluctance.

The word 'draconian' comes to mind. It apparently also came to the minds of those on the Supreme Court in 1973, who initiated a doctrine in hopes of establishing a sort of 'checks and balances' to apply to arguments of entrapment.

This doctrine is called 'the outrageous government conduct defense'. It determines that, although proof of predisposition to commit a crime bars application of the entrapment defense, "Fundamental fairness will not permit a defendant to be convicted of a crime in which police conduct is deemed 'outrageous'." In very rare and limited circumstances, this defense exonerates a defendant from criminal liability for crimes committed even when predisposition has been established.

This doctrine is the subject of the fourth question: What is the viability of the 'outrageous government conduct defense'? Prosecutors and law enforcement officers continually question the legitimacy of the defense, while defense advocates say its scope is much too limited.

By the courts, it is presently regarded as "theoretically viable where the government is overly involved in the creation of a crime." What exactly does that mean? There are those, both within, and outside of, the legal profession, who would argue that such was the case in both Young and Skarkie; but their arguments, as you have learned and in our present courts, would be to no avail. The outrageous government conduct defense has proved successful only in cases involving the most extraordinary degree of government involvement or coercion.


If, before you read this article, you were told of a place where law enforcement officers could legally initiate an undercover investigation with you as the target, go so far as to present you with both the opportunity and the faculties to commit a crime, and then arrest you and convict you of that crime, it's the last place you'd want to go.

Now you know you're already there -- U.S. federal law permits this to happen.

But why?

'Outrageous government conduct' is prohibited by the Due Process Clause of the fifth amendment to the U.S. Constitution.

The Supreme Court has ruled that, "[W]e may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction..."

These facts seem to clearly support the notion the above scenario is unlawful -- but it's not.

Thus, the entrapment debate is a heated and complex one -- its consequence reaching far beyond the issue of justice being served to defendants charged as the result of surreptitious investigations.

The arguments surrounding it, both for and against, revolve primarily around the question of the clarity of the present laws. Is this but an unfortunate symptom of well-intended ignorance?

Many think so, believing that entrapment is as well defined as any matter of law; and, that the whole debate can be distilled to one question: What should be regarded as 'outrageous'?

The answer to this question is elusive and cannot be found in any law book. Nor will it be answered here. Nonetheless, it must be pursued -- and it is the duty of each and every American to do so. Because, until this questions is answered determinably and in fairness, one of our most basic rights -- that of due process -- will be, and remain, threatened.