California's rules on entrapment

Like Mississippi, California comes down hard on entrapment. These excerpts are borrowed from the online article "Entrapment," which was originally prepared by the Alameda County District Attorneys Office.

Entrapment is a complete defense to a crime. This means a defendant is entitled to an acquittal if he committed the crime under circumstances constituting police entrapment. It does not matter that the evidence against the defendant was overwhelming, or that his guilt was undisputed. If he was entrapped, he goes free.

Although the penalty is severe, the courts believe it is justified by the need to discourage officers from engaging in overzealous tactics. In the words of Justice Frankfurter, “The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.”

In addition, entrapment is viewed as “a type of lawless law enforcement,” “a substitute for skillful and scientific investigation,” and a tactic which is sometimes rationalized under the theory that “the end, when dealing with known criminals or the criminal classes, justifies the employment of illegal means.”

The article goes on to define what is and what is not entrapment. The overriding principle used to determine entrapment is:

Entrapment occurs if the conduct of the investigating officers or their agents in dealing with the defendant would “likely” have induced a “normally law-abiding person” to commit the crime with which the defendant was charged.

A "normally law-abiding person" is not characterized as someone who would never commit any crime under any circumstance -- but someone who, "although he is normally law-abiding" would "commit a crime -- even a felony -- if sufficiently motivated."

Accordingly, the main issue in entrapment cases is whether officers provided such motivation. As the California Supreme Court explained, “What we do care about [in determining whether entrapment occurred] is how much and what manner of persuasion, pressure, and cajoling are brought to bear by law enforcement officials to induce persons to commit crimes.”

What is not permissible:

1. Putting pressure on the target
2. Creating an unusual motive
3. Making the crime unusually attractive

What is permissible:

1. Creating an opportunity to commit a crime

This is because it is presumed that a normally law-abiding person would resist the temptation to commit a crime if officers did nothing more than give him an opportunity to do so.

2. Criminal plan originated by officers

I can't see any justification for this at all, and the article does not give any examples.

3. Gaining defendant's confidence

If the government is going to that much trouble to get someone to commit a crime, that, to me, in entrapment. The example given didn't really prove that the agent was attempting to gain the defendant's confidence, and the explanation given doesn't sit well with me.

The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects. A contrary rule would unduly hamper law enforcement; indeed, in the case of many of the so-called ‘victimless’ crimes, it would tend to limit convictions to only the most gullible offenders.”

I think there are enough "victim" crimes for the police to solve, that they shouldn't be spending their time trying to gain the confidence of victimless criminals.