The legal claim of entrapment sounds like a way to spare the innocent from overzealous lawmen, but the history of the defense reveals it’s more about the criminal than the crime
In October 2010, four Muslim men were convicted in a Manhattan federal court on a host of terrorism-related charges, including conspiring and attempting to use weapons of mass destruction. At the instigation of Shahid Hussain, an FBI informant paid $100,000 to pose as a Pakistani militant, the “Newburgh Four” left dummy explosives outside two Bronx synagogues and plotted to use surface-to-air missiles against military aircraft landing at a base near New York City. U.S. Attorney Preet Bharara, emphasizing the apparent willingness of the conspirators to follow through with the attacks, lauded the verdict: “We are safer today because of these convictions.”Subscribe to TNI magazine for $2 and get TNI Vol. 14: Time today.
But maybe we aren’t. James Cromitie, Hussain’s main recruit, initially seemed wary of participating in the FBI’s scheme. For months, Cromitie dodged Hussain, pretending to leave town for long periods, screening Hussain’s phone calls, and avoiding the mosque where the pair first met. Only after losing his job at Wal-Mart did Cromitie succumb to the promised bait: nearly $250,000 in cash, a BMW, a barbershop, and a two-week vacation in Puerto Rico. At Hussain’s urging, Cromitie then recruited three co-terrorists, including a schizophrenic Haitian immigrant and another friend with whom Cromitie occasionally smoked weed and played video games. The crew proved to be maladroit conspirators. As Judge Colleen McMahon explained at sentencing:
Only the government could have made a terrorist out of Mr. Cromitie, a man whose buffoonery was positively Shakespearean in its scope . . . . I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it and brought it to fruition.
Nevertheless, the defendants’ claims of “entrapment” were unavailing. Each of the Newburgh Four is now serving a 25 year sentence in federal prison.
The Newburgh Four aren’t alone. Since the terrorist attacks of September 11, 2001, the FBI has quietly built a network of over 15,000 confidential informants, including 3,000 operatives dedicating to help “prevent, disrupt, and defeat terrorist operations before they occur.” The FBI’s counterterrorism efforts now cost $3.3 billion annually and have generated over 500 successful terrorism-related prosecutions. Among the dozens of sensational plots foiled in recent years, however, all but a few were FBI-hatched sting operations. Like the Newburgh Four, defendants in these cases regularly cry entrapment. To date, however, the entrapment defense has not succeeded in a single post-9/11 terrorism prosecution.
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The entrapment defense rarely succeeds, both in terrorism cases and more quotidian (usually drug-related) prosecutions, largely because “entrapment” means something very different in a courtroom than it does in ordinary usage. For nearly a century, the federal courts have allowed a criminal defendant to dodge criminal liability by showing that the government induced her to commit an unlawful act. Once the accused makes such a showing, however, the government still has the opportunity to prove that she was predisposed to commit the crime, even before government agents entered the picture. If a jury accepts the government’s characterization, other factors—the nature or size of the “bait,” the complexity of the government artifice, or the independent wherewithal of the defendant to commit the crime—basically don’t matter: the defendant is still guilty. This means that when entrapment is at issue, the personality, reputation, criminal history, and political or religious beliefs of the accused become the centerpiece of the trial. Post-9/11 juries have had little trouble concluding that the disaffected Muslims (and occasional anarchists) ensnared by the FBI have been sufficiently “predisposed” to engage in terrorism.
It’s hard to overstate what an odd approach this is. Most of Anglo-American criminal law, as David Garland has argued, is built upon the idea what distinguishes the criminal from the non-criminal is simply “a contingent event: one has chosen, on a particular occasion, in a criminal fashion while the other has not.” Defendants are assumed to be rational actors with free will, responsible for volitional acts of wrongdoing, who must then face sanctions that correspond to the moral gravity of the offense. This perspective helps explain why character evidence and evidence of “prior bad acts” are generally off-limits during criminal trials. The central inquiry simply is whether the criminal defendant engaged in a prohibited act with a sufficiently culpable mental state.
The entrapment doctrine, however, with its focus on the nature of the criminal rather than the nature of the crime, turns the classical approach to criminal culpability on its head. In the 80 years since the Supreme Court first recognized the defense, jurists and academics have consistently criticized this approach. “Predisposition,” they have argued, is a “confusing,” “incoherent,” and perhaps even “meaningless” concept. None of these scholarly treatments, however, has provided a satisfactory genealogy for the doctrine. To make any sense of entrapment, or understand why it has proven to constitute such a weak check on FBI overreach, we have to go back to the intellectual context in which it arose. And that, in turn, brings us to the strange career (and afterlife) of the Italian School of positivist criminology.
First published in Italy in 1876, Cesare Lombroso’s controversial Criminal Man introduced the idea of the “born criminal,” launching the scuola positiva. Though Lombroso would temper and refine his theories over the years, his central thesis remained constant: that methodical psychological and physiological examinations of convicted criminals revealed certain defects (or “anomalies”) common to the criminal type. Lombroso’s disciples—most prominently, in the United States, the socialist Enrico Ferri—followed in this tradition, though they tempered some of Lombroso’s more audacious claims in various ways. But as Mary Gibson and Nicole Hahn Rafter have explained, the positivists were unified in their efforts to “reorient legal thinking from philosophical debate about the nature of crime to an analysis of the characteristics of the criminal.” Such a systematic and scientific approach, the positivists maintained, was critical “to preserve civil society from the scourge of criminality.”
The positivists’ insistence on a scientific approach to exposing, studying, and combating the causes of a criminality represented a fundamental shift in thinking about criminal justice. On the positivists’ (unflinchingly acerbic) view, efforts of 18th-century reformers like Cesare Beccaria and Jeremy Bentham to dispense justice calibrated to criminals’ levels of moral culpability were simply quixotic; classical jurisprudence’s commitment to concepts of “guilt” and “responsibility” was “metaphysical pedantry.” The positivists similarly pushed back against the notion of free will and its implicit contingencies: the criminal was qualitatively different, “a being apart” whose (essentially determined) pathology was amenable to positive analysis. The imperative of social defense required a new approach, one grounded in empirical assessment of criminals, in which individual punishments would tailored to the scientifically-ascertained dangerousness of the offender.
This led the positivists to become exceedingly interested in (read: obsessed with) the classification of criminal types, which Enrico Ferri envisioned as the central aim of the modern penal process. Provided that the authorities could establish some factual link between the defendant and the criminal act, the chief matter of dispute at trial should be, “To what anthropological category does the accused belong?” Instead of “grotesque duels in which an acquittal is sought, no matter what the psychological or psychopathologic conditions” of the defendant, the trial would center on “an absolutely scientific discussion” aimed at classifying the defendant as one of five criminal types. Trained experts, including doctors and “criminal anthropologists,” could then work together to tailor appropriate penal judgments not based on the crime itself or the “moral culpability” of the accused, but on a scientific appraisal of the criminal’s character.
While the most extreme criminal types (e.g., the “born criminals”) might be beyond rehabilitation—necessitating permanent incapacitation, banishment, or even execution—lesser criminal types were simply “predisposed” to engage in crime. As Ferri explained in his principal tome, Criminal Sociology:
When [the positivist school] speak[s] of the criminal type . . . we mean . . . a physio-psychic predisposition to crime, which in certain individuals may not end in criminal acts . . . if restrained by favorable circumstances of the medium, but which, when these circumstances are unfavorable, is none the less the sole positive explanation of the anti-human and anti-social activity.
An individual who lacks a “predisposition to crime,” however, even under unfavorable social or environmental circumstances, could “never become a ‘rascal.’”
By discovering and categorizing criminal types and asserting that criminal acts were the products of identifiable pathologies, the positivist project (implicitly) legitimated and (explicitly) argued for an unprecedented level of police intervention and regulation. In effect, the positivists were reimagining the very purpose of the criminal justice system: “It should cease to be a belated and violent resistance to effects and should diagnose and eliminate the natural causes. This function must be advanced as a preventive defense of society against natural and statutory crime.” Positive criminology brought with it the promise of singling out “the infected members of society before their disease has become an actual offense.”
Despite the curiously Nixonian overtones of the positivists’ insistence that society “proclaim warfare on crime,” it’s worth remembering that the champions of the new discipline were seen as progressive reformers, not reactionaries. During the tumult of the biennio rosso in 1919 and 1920, for example, Ferri nearly succeeded in having the Italian penal code radically rewritten, but the fascists’ March on Rome in October 1921 promptly put an end to the reformers’ dreams. In its headiest incarnation, Garland explains, positivism promised “an exact and scientific method for the study of crime, a technical means of resolving a serious social problem, and a genuinely humane hope of preventing the harm of crime and improving the character of offenders.”
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“From all quarters of Europe arose those calumnies and misrepresentations,” Lombroso would later write, but “[o]ne nation . . . —America,—gave a warm and sympathetic reception to the [positivists’] ideas.” A laudatory piece in Green Bag, a popular Progressive Era legal magazine, offered a representatively breathless take:
It is to the glory of Italy, the land where Roman law, the foundation of modern law, was born, that it has again put into the crucible this problem of criminality, and that it has proceeded to the study of this problem by the only scientific method—namely, that of studying the psychology of criminals and their pathological abnormities. It will be its distinction to have declared against illusory enthusiasms, and to have founded a science which will contribute to the more efficacious protection of society.
John H. Wigmore and other legal luminaries, inspired in large part by the Italian School, organized the American Institute of Criminal Law and Criminology in 1909, hoping to “inculcate the study of modern criminal science, as a pressing duty for the legal profession and for the thoughtful community at large.” The new organization immediately set about translating leading positivist works, with each new volume garnering favorable reviews in the Yale Law Journal and Harvard Law Review. Whether attributable to growing socioeconomic anxieties, the newfound prominence of science in American social thought, the steady professionalization of policing and penology, or the unsettled state of the legal profession (or perhaps all of the above, as Rafter has argued), America proved to be fertile ground for positivist ideas.Positivist ideas, it’s worth noting, dovetailed nicely with the theories of a budding eugenics movement in America. Recall that in 1927, the Supreme Court heard a constitutional challenge to West Virginia’s practice of forcible sterilizing “mental defectives.” In an 8-1 opinion authored by the legendary Justice Oliver Wendell Holmes, Jr., the Court upheld the practice, explaining that “[i]t is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” It was discovered in the 1980s that the plaintiff in the case, Carrie Buck, did not suffer from mental illness; she had been committed to a state institution to conceal her rape by the nephew of her adoptive mother.
Up until this time, the entrapment defense simply didn’t exist in America law (or anywhere else, for that matter). As the Supreme Court of New York explained in an oft-cited opinion from 1857, entrapment was:
first interposed in Paradise: ‘The serpent beguiled me and I did eat.’ That defence was overruled by the great Lawgiver [and] has never since availed to shield crime or give indemnity to the culprit.
In the latter half of the nineteenth century, however, the American criminal law began expanding into new domains, with the government taking a more proactive role regulating sex, morals, and other everyday conduct. Many of these offenses were difficult to detect without aggressive policing or infiltration of criminal networks, however, so sting operations targeting would-be lawbreakers (hatched by both government agents and private detective companies) became increasingly common.
Late 19th-century courts found themselves struggling with how to respond to these new types of prosecutions: in scattered state court opinions, judges began to explain that a criminal conviction would not stand if the “origin of the criminal intent” was attributable to the government. These earlier, proto-entrapment opinions often appropriated the private law doctrine of consent to rationalize acquittals. In cases where force or lack of consent was an element of the crime—most frequently burglary or larceny—surreptitious inducements might constitute “consent” that would negate a substantive element of the charged offense, thus rendering the defendant innocent. These cases, however, were still very much in the classical mode: the law, courts frequently admonished, must not countenance convictions “on account of their general bad or criminal conduct, irrespective of their guilt or innocence of the particular offense charged.”Subscribe to TNI magazine for $2 and get TNI Vol. 14: Time today.
It wasn’t until the 1910s and 1920s, when positivist criminology was at its apex in the American legal imagination, that the modern entrapment doctrine really started to take shape. Whereas the proto-entrapment cases disclaimed the relevance of the character of the accused, the modern entrapment cases emphasized that sting operations targeting “criminals” were entirely justified. Decoys could be used to entrap “criminals,” courts explained time and again, but not to ensnare “the innocent and law-abiding.” In the first federal case to recognize the entrapment defense, the Ninth Circuit Court of Appeals explained in 1915 that between the two categories there was a “clear distinction.” This confident assertion, of course, was the very thesis of positivism.
American courts also became more indulgent of proactive policing, perhaps heeding the positivists’ argument that the penal system should target “the remote origin of crime in order to suppress the first germs.” Again, the contrast with earlier cases is striking. Late-19th century judges, though reluctant to excuse wrongdoers, cautioned that deceptive sting operations were “not edifying,” and that “[n]o court should, even to aid in detecting a supposed offender, lend its countenance to . . . contrivances for inducing a person to commit a crime.” By the 1910s and 1920s, however, courts regularly instructed juries that such deception by state actors was “not only legal, but commendable” (provided, of course, that it was a criminal the government was targeting). Perhaps the standard account of the entrapment doctrine—that it emerged as a judicially-crafted bulwark against invasive and questionable police practices—has it entirely wrong. On another view, crafting a (limited) entrapment defense allowed the American courts to place their imprimatur on covert or deceitful police practices, just as such tactics were beginning to occupy a central role in American law enforcement.
Each of these threads came together in Sorrells v. United States, the landmark 1932 case in which the Supreme Court finally signed off on the entrapment defense. C.V. Sorrells was a rural North Carolina man, arrested for selling a half-gallon of whiskey to a federal prohibition agent posing as a thirsty traveler. When Sorrells’s new acquaintance inquired where he might purchase alcohol, Sorrells initially demurred, explaining that he “did not fool with whiskey.” His reluctance eventually abated, however, when he learned that the two men had served together in the Old Hickory Division (30th Division A.E.F.) in World War I. Though Sorrells supplied the whiskey and officials later found significant quantities of other liquor stashed near his house, the Supreme Court threw out the conviction, explaining there was a fundamental difference between traps for the criminally “predisposed” and the “otherwise innocent.” And Sorrells—who was gainfully employed at a nearby wood fiber plant, and had not missed a day’s work since 1924—was plainly of the latter category. Such a man was not the criminal type, the Supreme Court determined, but a manipulated veteran, “an industrious, law-abiding citizen [overcome by] the sentiment aroused by reminiscences of their experiences as companions in arms in the World War.”
In a separate opinion, several of the Court’s more liberal Justices agreed that C.V. Sorrells was unlawfully “entrapped” and should go free, but offered sharp criticism of the majority opinion’s focus on the defendant’s “predisposition.” Tying the entrapment defense on such considerations, they argued, “results in the trial of a false issue wholly outside the true rule which should be applied by the courts.” Whatever the character flaws of the defendant, judges had a duty not to “consummate [such] an abhorrent transaction” and to “protect [the courts] and the government from such prostitution of the criminal law.” But even in articulating this alternative approach—one that might have yielded a much different entrapment doctrine had it been adopted—the unmistakable influence of positivist thought is still discernible. “Society is at war with the criminal classes,” the dissenters conceded, and the “forces of prevention and detection” must be permitted to employ some (objectively reasonable) degree of artifice “in waging this war.” It was one of the first, and only, times the dubious phrase “criminal classes” appeared in a Supreme Court opinion.
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Portions adapted from the forthcoming, “Predisposition and Positivism: The Forgotten Foundations of the Entrapment Doctrine,” appearing in the Journal of Criminal Law and Criminology, Vol. 103, No. 1.Though criminology left behind the Italian School long ago, Lombroso’s ghost still haunts the entrapment doctrine. Under current law, the question remains whether the defendant was “predisposed to crime,” whether the government “overstepped the line between setting a trap for the ‘unwary innocent’ and the ‘unwary criminal.’” Perhaps, after a decade of unprecedented (and undeniably successful) efforts to manufacture terrorist plots, it’s worth revisiting whether that line was ever meaningful in the first place.