Myth #3: “I was Entrapped!”

So you were hanging out with your buddy Joe, a guy who buys weed off you every now and then. Joe tells you he knows a guy who’s looking to buy more than Joe usually gets, and offers to introduce you. One thing leads to another, and soon you’re making a big sale to this new guy. As soon as everything changes hands, you’re cuffed and arrested. Turns out your buddy Joe was an undercover all along. He set you up! A cop! That’s entrapment, right?

Or maybe you were a out on a call, meeting another poor schlub at his hotel room to trade a little physical pleasure for a little cash. As is your practice, you make sure to confirm he’s not a cop first. He says no, you discuss what he’d like to do and for how much, and now you’re in handcuffs. What the hell? He lied to you! A cop! That’s entrapment, right?

Or maybe you were out protesting the latest outrage du jour, and you and your buddies decide to move the protest to a major thoroughfare at rush hour. The cops don’t stop you until you’re there, and then they arrest you. They let you do it! The cops! That’s entrapment, right?

Nope, nope, and nope.

Entrapment is not what most people think. It’s not when the police conspired with you to commit the crime. It’s not when your decision to go ahead with the crime was based on a police lie. And it’s not when the police didn’t stop you from committing the crime.

The police helping you commit a crime is not entrapment. Entrapment is when the police made you commit the crime, when you wouldn’t have done so otherwise.

Entrapment is when you would not have committed the crime, period, if the police hadn’t made you do it. If you’d never sold drugs in your life, but the undercover begged you for weeks to do the deal to save him from being killed by his supplier… maybe that’s entrapment. If you were not going to that hotel room as a prostitute, but for a purely social encounter, and the cop gave you money you’d never asked for… that’s probably entrapment. And if the cops out-and-out told you and your fellow protesters to go onto that street, and then arrested you for doing what they told you… that’s entrapment.

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Different states deal with this differently. Some look at your actual state of mind, to see whether you personally wouldn’t have committed the crime but for the police action. Others look at the police action, and see whether it would have made a regular law-abiding citizen commit the offense.

Either way, the concern is that your free will was overborne by the police. If the act was not of your free will, but compelled by the government, the government shouldn’t be allowed to punish you for it. Prosecutorial chutzpah is the essence of the defense.

The same principle — that you cannot be guilty for stuff you were forced to do against your will — underlies all kinds of defenses. Self-defense, duress, necessity… even the Miranda rule… all derive from this principle. It’s not that you had no choice, but that your choice was forced by circumstances. In the case of entrapment, it’s when your choice was forced by the government. It’s not fair for the government to prosecute you for doing what the government made you do.

But if you were doing it of your own free will — even if your decision was informed by variables in police control — then it wasn’t entrapment. It may have been sneaky, mean or negligent on their part, but it wasn’t entrapment.

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2 Comments

  1. shg, October 20, 2011:

    This is very instructional. Except the part where you ask the prostitute if she’s a cop and she says “no.” You didn’t mention what the cop was wearing. That matters, right?

  2. Nathan, October 20, 2011:

    Hmm, I think you might be thinking about another doomed defense…

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