Editing Entrapment (section)

===History===
Entrapment defenses in the United States have evolved mainly through [[case law]].

Courts took a dim view of the defense at first. The [[New York Supreme Court]] said in 1864 that "[It] has never availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian, ethics, it never will".<ref name="Lord468">''Board of Commissioners v. Backus'', 29 How. Pr. 33, 42 (1864) cited in {{cite journal | last = Lord | first = Kenneth | url = http://www.law.fsu.edu/Journals/lawreview/downloads/253/lord.pdf | title = Entrapment and Due Process: Moving Toward A Dual System of Defences | journal = Fl St. U. Law Rev. | volume = 25 | page = 468 | year = 1998 | url-status = dead | archive-url = https://web.archive.org/web/20070621083325/http://www.law.fsu.edu/Journals/lawreview/downloads/253/lord.pdf | archive-date = 2007-06-21 }}</ref><ref group="Note">A fuller quote includes a reference to [[original sin]]. ''Even if inducements to commit crime could be assumed to exist in this case, the allegation of the defendant would be but the repetition of the plea as ancient as the world, and first interposed in Paradise: "The serpent beguiled me and I did eat."  That defense was overruled by the great Lawgiver, and whatever estimate we may form, or whatever judgment pass upon the character or conduct of the tempter, this plea has never since availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian ethics, it never will.</ref>  Forty years later, another judge in that state affirmed that rejection, arguing "[courts] should not hesitate to punish the crime actually committed by the defendant" when rejecting entrapment claimed in a [[grand larceny]] case.<ref name="Lord468 second cite">''People v. Mills'', 70 N.E. 786, 791 (N.Y. 1904), cited at Lord, ''supra.''</ref>

Other states, however, had already begun reversing convictions on entrapment grounds.<ref name="Lord468 third cite">See John D. Lombardo, "Causation and 'Objective' Entrapment: Toward a Culpability-Centred Approach", 43 UCLA L. REV. 209, 219-20 (1995). See, e.g., ''People v. McCord'', 42 N.W. 1106 (Mich. 1889)</ref> Federal courts recognized entrapment as a defense starting with ''[[Woo Wai v. United States]]''.<ref>''Woo Wai v. United States'' {{West|F|223|1|412|9th Cir.|1915|}}</ref><ref name="Chin3">Chin, Gabriel J., "[http://www.law.arizona.edu/faculty/FacultyPubs/Documents/Chin/ALS0612.pdf The Story of ''Jacobson v United States'': Catching Criminals or Creating Crime?] {{Webarchive|url=https://web.archive.org/web/20070621083325/http://www.law.arizona.edu/faculty/FacultyPubs/Documents/Chin/ALS0612.pdf |date=21 June 2007 }}", ''Arizona Legal Studies Discussion Paper N. 06-12'', February 2006, retrieved 10 August 2006, 39. This draft is described as a chapter in the author's forthcoming ''Criminal Law Stories''.</ref> The [[Supreme Court of the United States|U.S. Supreme Court]] declined to consider the question of entrapment in ''[[Casey v. United States]]'',<ref>''[[Casey v. United States]]'' {{ussc|276|413|1928}}</ref> since the facts in the case were too vague to definitively rule on the question; but, four years later, it did. In ''[[Sorrells v. United States]]'',<ref name="Sorrells"/> the [[Supreme Court of the United States|Supreme Court]] unanimously reversed the conviction of a [[North Carolina]] factory worker who gave in to an undercover [[Prohibition]] officer's repeated entreaties to get him some liquor. It identified the controlling question as "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials".<ref name="Sorrells">''[[Sorrells v. United States]]'', 287 U.S. 435, 451.</ref>

In ''[[Sherman v. United States]]'',<ref>''[[Sherman v. United States]]'' {{ussc|356|369|1958}}</ref> the Court considered a similar case in which one recovering [[Addiction|drug addict]] working with agents of the [[Federal Bureau of Narcotics]] (a predecessor agency to today's [[Drug Enforcement Administration]] (DEA)) solicited another to sell him drugs on the premise that his own efforts were failing. Again unanimous, its opinion focused more clearly on the defendant's predisposition to commit the offense and, on that basis, overturned Sherman's conviction as well since, although he had two prior drug convictions, the most recent dated back five years. Furthermore, he was attempting to rehabilitate himself, he had made no profit on the sales, and no drugs were found in his [[apartment]] when it was searched, suggesting the absence of a predisposition to break drug laws. "To determine whether entrapment has been established", it said, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal".<ref name="Sherman">''[[Sherman v. United States]]'', 356 U.S. 369, 375.</ref>

Prosecutors won the next two times entrapment came before the Court, in ''[[United States v. Russell]]''<ref>''[[United States v. Russell]]'' {{ussc|411|423|1973}}</ref> and ''[[Hampton v. United States]]'',<ref name=":0">''[[Hampton v. United States]]'' {{ussc|425|484|1976}}</ref> albeit by narrow margins. In the former, the Court upheld the conviction of a [[Washington (state)|Washington]] man for manufacturing [[methamphetamine]] even though an undercover agent had supplied some of the ingredients, and also pondered an [[outrageous government conduct]] defense, though it did not enable it. ''Hampton'' let stand, by a similar margin, the conviction of a Missouri man who had, upon seeing [[track mark]]s on the arms of a DEA informant, expressed interest in obtaining [[heroin]] to sell. The DEA informant arranged a meeting between the Missouri man and undercover DEA agents in which the Missouri man sold a small quantity of heroin to agents and indicated that he could obtain larger quantities. After a second sale to the undercover agents, he was arrested. The defendant alleged that the informant supplied the drugs and that he had been led to believe, by the informant, that he was not selling heroin but a counterfeit with which he intended to defraud the buyers. Regardless, the Court found he was sufficiently predisposed to sell heroin so as to be criminally liable.<ref name=":0" />

The argument employed in the majority opinion on ''Hampton'' became known as the "subjective" test of entrapment, since it focused on the defendant's state of mind.  However, in all cases, concurring opinions had advocated an "objective" test, focusing instead on whether the conduct of the police or other investigators would catch only those "ready and willing to commit crime".<ref name="Sorrells2">''Sorrells'', ''Id.'', 287 U.S. at 384 ([[Felix Frankfurter|Frankfurter]], J., concurring.</ref>  Under the objective approach the defendant's personality (i.e., his predisposition to commit the crime) would be immaterial, and the potential for the police conduct to induce a law-abiding person considered in the abstract would be the test.  This, supporters argued, avoided the dubious issue of an unexpressed legislative intent on which the ''Sorrells'' court had relied and instead grounded the entrapment defence, like the [[exclusionary rule]], in the court's supervisory role over law enforcement.  And like the exclusionary rule, they would have had judges, not juries, decide whether a defendant had been entrapped as a matter of law.<ref name="Chin6">Chin, p. 6, citing Marcus, Paul, ''The Entrapment Defence''.</ref>

Since the subjective test focusing on predisposition had, unlike the exclusionary rule, not been applied to the states, they were free to follow it as they saw fit. The state courts or legislatures of 37 states have chosen the subjective test, while the others use the objective test.<ref name="Paton">{{cite journal| last = Paton | first = Scott C. | title = 'The Government Made Me Do It': A Proposed Approach to Entrapment Under Jacobson v. United States | journal = Cornell L. R. | volume = 79 | issue = 45 | pages = 995, 1002 | year = 1994}}</ref> Some have allowed both the judge and the jury to rule on whether the defendant was entrapped.<ref name="Chin6" />

In the Supreme Court's last major ruling on entrapment, ''[[Jacobson v. United States]]'',<ref>''[[Jacobson v. United States]]'' {{ussc|503|540|1992}}</ref> which overturned the conviction of a [[Nebraska]] man for receiving [[child pornography]] via the mail, the subjective vs. objective debate was completely absent. Both the majority and dissenting opinions focused solely on whether the prosecution had established that the defendant had a predisposition for purchasing such material (which had only recently been outlawed at the time of his arrest). Since no other material was found in his home save what he had purchased from the undercover postal inspectors, Justice [[Byron White]] believed the operation had implanted the idea in his mind through mailings decrying politicians for assaulting civil liberties by passing laws such as the one the inspectors hoped he would break. Justice [[Sandra Day O'Connor]] disagreed in her dissent, arguing that the record did indeed establish that Jacobson was interested in continuing the purchases.