A recent New York Times article highlights 1,000 cases in which entrapment may see new life in courtrooms and legislatures throughout the United States. Entrapment laws go back to the 1930’s when the U.S. Supreme Court first put constitutional rights in play to restrain what the Justices called “outrageous government conduct.” Entrapment is when someone neither inclined nor seeking to commit a crime, is presented the opportunity by a government agent and is induced or persuaded into the enterprise with no prior inclination.
Now that you have the bones of the law on entrapment let’s look in on what your Government is doing. Here are the facts…you decide if it’s entrapment or not:
Three hardened criminal types, all with extensive criminal histories involving guns, narcotics and violence, are sitting around in their crib, talking dirty and doing the bad boy thang. An FBI agent posing as a drug courier goes to them with a proposal….. He tells this den of evil-doers that his main supplier has a big load of cocaine coming in, gives them the location. He promises it is at least a half million dollars in street value cocaine. He tells them there may be some guns, but not enough that these three can’t handle. The FBI agent tells them its easy pickings and he’ll help. Our gang starts to get their arsenal together, buys some plastic garbage bags and stays: the bags are for the cocaine and the stays are to tie the hands of the drug lord’s retinue. Then, with dreams of easy money dancing in their heads and never having left their rooms, a SWAT team breaks into their lair and arrests them on charges of conspiracy to distribute more than five kilograms of cocaine, armed trafficking and conspiracy. Those charges get them into ten-year minimum incarceration guidelines ranges and maximum life in prison for armed trafficking. What’s your decision here? Are the cases solid, can you convict, or will some judge throw the case out as entrapment?
Let’s go to the formula…
Were they inclined to commit the armed trafficking crime, or just waiting around for an opportunity to continue their bad boy ways? Were they seeking or looking for the opportunity or did a government agent bring it to them? Were there inducements made by the FBI agent to entice them to commit the crime? Does the government action offend the community’s sense of fair play and fair dealing? Does this rise to outrageous governmental conduct or is it solid law enforcement? If the three were not career criminals but three bored college students would it make any difference to you? Should it?
A Los Angeles judge dismissed two defendants in the above fact scenario and held one for trial. A Second Judge in Los Angeles dismissed similar charges. Then the government took the dismissals to a court of appeal and argued that the guns were real, the defendant’s criminal histories were real and the high stakes cocaine and money allurements were merely there to get their attention, not create a new crime. The agents who approached our little gang knew nothing about them other than they were men with extensive criminal histories living in poor neighborhoods. Is this something that “steers too close to tyranny” (as the court that dismissed the case wrote) or acceptable law enforcement methods of clearing neighborhoods of bad actors? Everyone gets to vote, but the only vote that counts is the guy in the black robe.