Law Enforcement by Deceit; Jennifer Johnson

THEFREEMAN IDEAS ON LIBERTY Law Enforcement by Deceit?: Entrapment and Due Process by Jennifer Johnson Jl ccording to an April 1993 FBI Law En ftforcement Bulletin, "Law enforcement officers often employ trickery and deception to catch those involved in criminal activity." What might surprise you is that the Bulletin just quoted was not designed to discourage or reprimand such trickery, but rather to spell out how law enforcement officers can best conduct it so as to avoid "undercover inves tigations [giving] rise to successful [defense] claims of entrapment." Contrary to popular belief, executed prop erly, many dubious investigative tactics are perfectly acceptable under the current param eters of the law. 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" -establishes only loose and vague constraints on police procedure. The Supreme Court has held that when investigating certain criminal behavior, police may lawfully use a wide array of un dercover techniques that, although deceptive, do not legally constitute entrapment.

Ms. Johnson is a freelance journalist living in Tampa, Florida. She writes a monthly column dealing with personal sovereignty issues for Impact Press, a regional magazine distributed in the southeastern United States. Her work also appears regularlyin The Hernando Today. The question is: What does? And why does law enforcement seem to have such extraor dinary latitude to conduct lawful investiga tions 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. In considering entrapment defenses, courts have deliberated four questions. Their answers to these questions determine in a particular case whether an entrapment defense is relevant and can exonerate the defendant.

The first question is: Does 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 constitu tional 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 entrapment grounds merely because he or she can prove that police had no reason whatsoever to suspect even the slightest of criminal inclinations. What he must prove is that he was induced by police to commit the 739 740 THE FREEMAN • NOVEMBER 1996 crime. This leads us to the second question: What constitutes inducement?

An officer merely approaching a defendant and requesting that he commit a crime does not. To claim inducement, a defendant must prove he was unduly persuaded, threatened, coerced, harassed, or offered pleas based on sympathy or friendship bypolice. A defendant must demonstrate that the government con duct 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 hap pened 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 par ticipate. Defining Predisposition Even with the finding of obvious induce ment, Skarkie wasn't off the hook. Courts usually require that a defendant go further and prove 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 state ments. Predisposition is not solely based on whether a defendant has previously engaged in criminal activity. Predisposition may be established merely by showing the defen dant's desire to make a profit, eagerness to participate in criminal activity, or quick re sponse to the government's inducement offer. Thus, even in circumstances where there was no reasonable suspicion to initiate an inves tigation where the defendant has proven illicit tactics of government inducement, and where there is no record or suspicion of criminal activityin the defendant's past, an entrapment defense may still fail if the defendant engaged in the induced activity for profit, monetary or otherwise, or 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 system 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 com mit a crime bars application of the entrap ment defense, "Fundamental fairness will not permit a defendant to be convicted of a crime in which police conduct is deemed 'outra geous.'" In very rare and limited circum stances, this defense exonerates a defendant from criminal liability for crimes committed even when predisposition has been estab lished. This doctrine is the subject of the fourth question: What is the viability of the "outra geous government conduct defense"? Prose cutors and law enforcement officers continu ally 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." LAW ENFORCEMENT BY DECEIT? 741 What exactly does that mean? There are those, both within, and outside of, the legal profession, who would argue that the govern ment was "overly involved" with both Young and Skarkie. But their arguments in our present courts would be to no avail. The outrageous government conduct defense has proved successful only in cases involving the most extraordinarydegree of government in volvement or coercion. If, before you read this article, you were told of a place where law enforcement officers could legally initiate an undercover investi gation 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. The entrapment debate is a heated and complex one. Its consequence reaches far beyond the issue of justice being served to defendants actually charged as the result of undercover investigations. Until entrapment is defined clearly and fairly, all of us face a threat to our right of due process. D ~~& Free Banking in Britain Theory,Experienceand Debate1800-1845 LAWRENCE H. WHITE In this secondeditionof hisclassic ProfessorWhiteexamines the theoryand practiceof privatelyissuedcurrency,which in the age of 'smartcard'cash bal ances has taken on a new relevance. The text of the book has been signifi cantly revisedand expandedsincethe first editionappearedin 1984, and in cludesa detailedreply by the authorto his critics in a wholly new chapter. The book costs $14.95 (inc P&P) and may be ordered from the lEA by creditcard or by check.

lEA, 2 Lord North Street, London SW1P 3LB, England. Tel: +44 (0)171 799 3745, Fax: +44 (0)171 799 2137, E-Mail: iea@iea.org.uk, Web: http://www.iea.org.uk The lEA is a Registered Charity No: 235351 THEFREEMAN IDEAS ON LIBERTY Why Not Slavery? by Bertel M. Sparks U pon first impression, it might appear a bit ridiculous even to ask the question, Why not slavery? At least if anyone anywhere in the Western world should seriously suggest the legalization of slavery, it is doubtful if he would get much of a hearing. Rather than creating any kind of stir, he would probably succeed in nothing more than making himself look like some sort of nut. I assure you that I have no intention of offering any such sug gestion. At the same time, I do propose to talk about slavery. In doing so I hope to talk about slavery in its ordinary and usual sense without attempting to give the term any indirect, obtuse, or unique meaning. And as I under stand the term, it means a system or institu tion that permits some person or persons to hold some other person or persons in bondage to such an extent that the work and labor of the person being held is subject to the control of the person doing the holding. Under that system the person being held has no right to abandon the master or to reject the work or labor that is being demanded of him.