July 17, 2013
The affirmative defense of entrapment is a judicially-created doctrine, which recognized that Congress and the legislatures of the states did not intend to implement criminal statutory law by tempting innocent people to commit crime. The defense applies when a person who is not predisposed to commit the crime is improperly induced by a government agent to do so. Historically, there has been a “judicial” debate between the objective and subjective theories of entrapment. The subjective theory emphasizes the defendant’s state of mind—concluding that if he or she is predisposed, it matters little how strong the government’s inducement is. The objective theory focuses on the actions of the government in initiating crime and luring the defendant into committing it. Contrast the majority and dissenting opinions in United States v. Sherman, 356 U.S. 369 (1958) for a thorough discussion of each position. The majority position favored the subjective approach, opining that a person predisposed to commit crime should not benefit because of excessive government zeal. That position was reiterated in United States v. Russell, 411 U.S. 423 (1973) and, appears to be the accepted theory in most U.S. jurisdictions.
I say “appears” because, in its last major statement on entrapment, Jacobson v. United States, 503 U.S. 540 (1992), the Court appears to have blurred the distinction between inducement and predisposition. Jacobson was the target of an intense “pornographic sales” campaign by undercover agents, who were insistent and persistent in pursuit of Jacobson. The Court found the inducement to be improper and resolved the objective/subjective dilemma by holding that Jacobson was entrapped because the prosecution had not proved that he was predisposed before he was contacted by government agents. In summary, the Court stuck to the subjective theory but focused on both features of entrapment—the nature and propriety of the inducement and the defendant’s predisposition.
Jacobson has spawned two interesting and different–but related–interpretations, by two different circuit courts of appeal—each of which has generated judicial comment in other circuits and in several states. In United States v. Gendron, 18 F.3rd 955 (1st Cir. 1994), an on-line child pornography case, the First Circuit appears to see Jacobson as setting up a “sliding scale” by finding that, in determining the defendant’s predisposition in response to extraordinary government inducement, the court must determine how he or she would have responded to an “ordinary” inducement. The court found that the inducement was not excessive in that case and that there was evidence of Gendron’s pre-existing predisposition.
In United States v. Hollingsworth, 27 F.3d 1196 (7th Cir. 1994), the court read a “position” component into Jacobson’s “predisposition” requirement. The government’s burden would be to prove that the defendant was not only intent on committing the crime but, by reason of experience, training, or circumstances, was in a “position” to do so. Hollingsworth was a farmer in Arkansas who was induced into augmenting his income through money laundering by an undercover agent. The court found that Hollingsworth knew nothing about money laundering and that he never would have been capable of doing it without the “expert assistance of the government. It also found that the true value of the inducement element is its bearing on predisposition—i.e., the stronger the inducement, the weaker the inference that his or her agreement was the product of predisposition.
In theory, at least, government inducement should be of little import in the subjective-theory jurisdictions—but Jacobson and its subsequent history proved otherwise.