December 19, 2014
Two weeks ago, we marked the 81st anniversary of the ratification of the Twenty-first Amendment, which brought an end to Prohibition. Before it ended, however, the era of Prohibition was responsible for the creation of one of criminal law’s most notable defenses: entrapment.
The theory had actually been in existence before Prohibition, but it wasn’t recognized by the Supreme Court until December 19, 1932, with the decision of Sorrells v. United States.
Besides simply being decided during Prohibition, Sorrells’ facts directly involved Prohibition laws and violation of those laws:
Mr. Martin, a government Prohibition agent, lived in Haywood County, North Carolina, posing as “a tourist.” Martin went to the home of Mr. Sorrells with “three residents of the county who knew the defendant well.” None of these men knew that Martin was a government agent.
After discovering that Sorrells was a World War I veteran, Martin told Sorrells that he was also a veteran of the same division (which was true). The men conversed at Sorrells home for approximately an hour and a half, during which time Martin asked Sorrells “three or four or probably five times to get him, the agent, some liquor.” Sorrells refused each of these requests, save the final one, saying that he “did not fool with whisky”. After the final request, Sorrells said “he would go and see if he could get a half gallon of liquor.” He then left the house, and returned with it “between twenty and thirty minutes” later. Martin paid Sorrells $5 for it, and then arrested him for violation of the National Prohibition Act.
Accounts differ as to whether Sorrells had a reputation as a rum runner prior to Martin’s targeting of him. The government introduced three witnesses at trial who all claimed that Sorrells had that general reputation. But the three men who accompanied Martin to Sorrells’ home all stated that they had never known Sorrells to be in the liquor business.
Sorrells was convicted by the trial court, which rejected his entrapment defense. The court of appeals affirmed, and the Supreme Court agreed to review the case.
The high court reversed, finding that “the act for which defendant was prosecuted was instigated by the prohibition agent,” who “lured [Sorrells], otherwise innocent, to its commission by repeated and persistent solicitation in which he succeeded by taking advantage of the sentiment aroused by reminiscences of their experiences as companions in arms in the World War.”
The rest of the opinion was an exploration of the issues raised by the Court’s recognition of the entrapment defense, and why its recognition was well justified. The majority opinion, written by Chief Justice Charles Evans Hughes found that the validity of the defense hinged on whether the defendant had a predisposition to commit the crime, which is predominantly the standard that the Court continues to use today.
However, Justice Owen Roberts’ concurrence advocated for a standard that analyzed the conduct of the law enforcement agents allegedly responsible for the entrapment – an alternate theory which has proponents even today.
But if not for the actions of that prohibition enforcement agent, we may not have entrapment recognition by the Supreme Court – or it may have come much later and taken a different form than we know it today. Thus, it seems that we have Prohibition to thank for the entrapment defense.