CONTENTS

 

 

COMPLIANCE CHECKS
AND THE ISSUE OF ENTRAPMENT



Since the United States Congress enacted laws against entrapment, the United States Supreme Court has reviewed the issue some five times. Those reviews are as follows:

Note: clicking on the links for these Supreme Court Cases will bring up a new window. To get out of the case, just close the window and you will find yourself back here.

1932; SORRELLS v. U.S., 287 U.S. 435, in which a prohibition agent, relying on the sympathies of Mr. Sorrells as a fellow former member of the same unit during World War One, repeatedly requested whiskey from Mr. Sorrells and finally received the same. All nine justices agreed that this was entrapment, the single dissenting opinion disagreeing on the extent of the entrapment.

1958; SHERMAN v. U.S., 356 U.S. 369, in which a government informant, undergoing treatment for narcotics addiction from the same facility as Mr. Sherman, repeatedly requested that Mr. Sherman obtain for him some narcotics because "the treatment wasn't working." The court split five to four with the majority concurring that entrapment did indeed occur, even though the informant acted independently of the government direction at the time entrapment occurred.

1973; U.S. v. RUSSELL, 411 U.S. 423; in which a government agent, pretending to be a member of a drug cartel or organized crime syndicate, offered Mr. Russell a primary and difficult to obtain ingredient in the manufacture of methamphetamine ("speed") on the condition that he (1) receive half of the methamphetamine produced with the ingredient for which he would pay, and (2) he be allowed to inspect the plant in which the methamphetamine was manufactured before sealing the deal. The court split five to for with the majority agreeing that entrapment did not occur because it could be demonstrated conclusively that Mr. Russell was predetermined to commit the crime with or without the government's intervention.

1988; MATHEWS v. U.S., 485 U.S. 58; in which Mr. Mathews, an employee of the Small Business Administration, granted an SBA loan concurrent with a personal loan from the president of the company he granted the loan to. At issue in this case was the question of whether the defense of entrapment was legitimate with the plea of not-guilty. The court split five, one, three with the majority agreeing that the entrapment defense could be raised. The one agreed with the majority conclusion, but disagreed on particulars, in effect rendering the results six to three.

1992; JACOBSON v. U.S., 503 U.S. 540; in which Mr. Jacobson was found on the mailing list of a California Book Store which dealt in child pornography that existed before the enactment of laws against the mailing of such and received repeated mailings of advertisements for such from the government in attempt to induce him to order once again after the enactment of said laws. The court split five to four with the majority agreeing that entrapment had occurred.

In all five of the above cases, the majority opinion stated emphatically that if the government requests a citizen to violate the law, this does not constitute entrapment. In JACOBSON v. U.S., Mr. Justice J. White, writing for the court went so far as to say that repeated attempts to get a citizen to violate the law on the part of government does not constitute entrapment. On the basis of this, it would appear that the government operated stings for sales of tobacco and alcohol to minors are not entrapment. However, further reading is required.

SHERMAN v. U.S. cites the rules for entrapment. According to these rules, entrapment occurs when:

  1. the crime is "the product of the creative activity" of law enforcement officials, and,
  2. prosecution cannot prove, beyond a reasonable doubt, that the defendant was "independently predisposed" to commit the crime before the involvement of law enforcement officials.
JACOBSON v. U.S. goes further in citing the United States Attorney General's Guidelines on FBI Undercover Operations (Dec 31, 1980):

...an inducement to commit a crime should not be offered unless:
  1. There is a reasonable indication, based on information developed through informants or other means, that the subject is engaging, has engaged, or is likely to engage in illegal activity of a similar type, or
  2. The opportunity for illegal activity has been structured so that there is reason for believing that the persons drawn to the opportunity, or brought to it, are predisposed to engage in the contemplated illegal activity.
In his opinion on this case, Mr. Justice White indicated that government, when initiating sting operations, must not overstep the line that separates a trap for the unwary criminal and create a sting operation which sets a trap for the unwary innocent, affirming the doctrine set in SORRELLS v. U.S. back in 1932, the first of the five cases cited at the beginning of this essay.

Mr. Justice Hughes, in the majority opinion of the same first case, SORRELLS v. U.S., offers this doctrine, which he quotes from Circuit Judge Sanborn in Butts v. U.S.:

The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it.
Mr. Justice Hughes states:
Such a gross abuse of authority given for the purpose of detecting and punishing crime, and not for the making of criminals, deserves the severest condemnation...
In this pivotal and first case concerning entrapment, Mr. Justice Hughes and the majority stopped just short of declaring sting operations in which repeated inducements to commit a crime occur to be unconstitutional. The court agreed that in an effective undercover operation, such repeated inducements become necessary to gain the confidence of the criminal. They become repugnant only when they are used against the innocent. As noted, this case was decided eight to one. The descanting opinion, written by Mr. Justice Roberts, argued that repeated inducements to commit a crime constitute entrapment, regardless of the predisposition of the accused prior to government's involvement. Consequently, all nine justices agreed that entrapment had indeed occurred in Mr. Sorrells case.

Do sting operations against the illegal sale of either tobacco or alcohol constitute entrapment? On the surface it appears that they do not. In such a sting operation, a youth, below the age of eighteen in the case of tobacco or twenty-one in the case of alcohol, acting as either a volunteer or paid agent of law enforcement, enters a retail establishment and attempts to purchase such. If that youthful agent is refused, or if that youthful agent is asked for his or her identification, he or she is required to give up the attempt. If the sale is made, the government official must take control of the contraband and then issues a citation for the violation of the law against selling, either tobacco to a person under the age of eighteen, or alcohol to a person under the age of twenty-one. There are no repeated attempts to get the cashier to violate the law in a single sting. It appears that entrapment has not occurred.

The problem with the above is that it fails to distinguish between the "unwary innocent" and the "unwary guilty." As noted above, the Attorney General requires the FBI to construct these traps, (all sting operations are traps, traps for the unwary criminal) in such a manner as to preclude the accidental trapping of the "unwary innocent." In his opinion on Jacobson v. U.S., Mr. Justice White wrote this into the record, making it a requirement of all sting operations, regardless of the agency conducting them. An indiscriminate tobacco or alcohol sting, that is a sting where the retail outlet subject to the sting is "drawn out of a hat," or picked because it lies with in the boundaries of an area on the map "hit by a dart," cannot distinguish between those who are criminally predisposed to sell to minors and those who do sell innocently due to a momentary lapse in judgment. The only way to ensure that only the "unwary guilty" are caught in the trap is to work up a history on the cashier in question with the use of surveillance or repeated compliance checks which are not also sting operations. Since many, if not most of those caught in these sting operations have passed previous compliance checks, establishing that they have no criminal predisposition, they are indeed the "unwary innocent" caught in a poorly constructed trap.

The next problem is law enforcement's literal application of the law. Mr. Justice Hughes, in his opinion in SORRELLS v. U.S. said,

Literal interpretation of statutes at the expense of the reason of the law and producing absurd consequences or flagrant injustice has frequently been condemned.
He continued to cite two cases, U.S. v. PALMER WHEAT and U.S. v. KIRBY as just two instances of that condemnation. Then he wrote:
All laws should receive a sensible construction. General terms should be so limited in their construction to avoid an unreasonable application, as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.
Were the laws against the sale of alcohol and tobacco written for the express purpose of punishing each and every person who makes a mistake, in addition to those who pander to the young by encouraging them to purchase knowing that they will most likely be sold to? If so, Mr. Justice Hughes continued, quoting:
...general terms descriptive of a class of persons made subject to a criminal statute may and should be limited, where the literal application of the statute would lead to extreme or absurd results and where the legislative purpose gathered from the whole act would be satisfied by a more limited interpretation.
Law enforcement would argue, and in my experience has argued, "The law has been violated, regardless of whether it was intentional or not." To this, we can again quote Mr. Justice Hughes, who wrote:
We are not forced by the letter to do violence to the spirit and purpose of the statute.
The purpose of the statute is to prevent retail outlets from becoming regular sources of tobacco or alcohol for those who are too young (by law) to use such. If it was indeed the purpose of the law writers to punish each and every occasion in which either of the above is sold to a minor, regardless of the relative innocence or guilt of either the cashier or the outlet itself, Mr. Justice Hughes would amend that purpose to a more reasonable one.

Finally, there is the nature of the "crime" itself. One hundred percent compliance is an impossibility. After over two years of gathering statistics, the best that has been achieved is about eighty-five percent compliance. The United States Congress has recognized this fact, and in the Synar Amendment of the Public Health Service Act of 1992, it only demands eighty percent compliance. This means that law enforcement can expect fifteen to twenty percent non-compliance and that if it continues, every retail outlet and every cashier can eventually be found in non-compliance.

Is every cashier a criminal, predisposed by intent or by reason of gross negligence, to break the law regarding the sale of tobacco or alcohol to minors? While there are those who do harbor an actual criminal predisposition, the reality is that the majority do not fit this description. These sting operations are constructed so as to take advantage of the fact that everyone makes mistakes. They refuse to discriminate between the "unwary innocent" who are legitimate victims of human nature, predisposed to eventually making a mistake and nothing more, and the "unwary guilty" who are looking for the opportunity to commit the crime, or the "unwary negligent" who just don't care enough one way or the other. Some would suggest that because every cashier stung and every retail outlet that employed such a cashier do sell tobacco and/or alcohol this is sufficient to prove a pre-existing disposition, on the part of either the cashier or the retail outlet, to knowingly violate the law. This argument is so absurd that it would be a waste of time to even consider it.

In conclusion; law enforcement relies on two facts:

  1. The letter of the law, and
  2. The statements in all of the five Supreme Court Cases cited above that a single request or even multiple requests by a law-enforcement official to violate the law do not constitute entrapment.
It believes that these two facts are sufficient to justify it's use of random and indiscriminate sting operations to detect and consequently punish sales of both tobacco and alcohol to minors.

Contrary to this, the Supreme Court, in SORRELLS v. U.S., has ruled that when the letter of the law results in the absurd or the unjust, the purpose of that law must be affirmed as the only justification for enforcement and prosecution. In that one hundred percent compliance is an impossibility, sting operations violate this ruling.

In addition, the Supreme Court, in the same case, SORRELLS v. U.S., is totally opposed to the use of law enforcement using the letter of the law in order to make criminals out of the innocent. In JACKOBSON v. U.S. requires that sting operations be constructed in such a manner as to discriminate between the "unwary innocent" and the "unwary guilty." In its "hell bent" desire to enforce the letter of the law, law enforcement has violated both of those provisions.

Finally, if the defense of entrapment is raised, the Supreme Court, in all five of the above cited cases, requires the prosecution to establish, beyond any reasonable doubt, that the accused was predisposed to commit the crime in question before the involvement of law enforcement. The very nature of stings against the sale of tobacco or alcohol to those under age make it totally impossible for prosecution to even reasonably suggest such a predisposition. In cases where the defendant has successfully passed previous compliance checks, the evidence would prove the opposite, that being that there was no such predisposition and in fact, a realistic concerted effort on the part of the defendant to avoid accidentally breaking the law.

I believe that in any court case resulting from indiscriminate and random stings against the sale of tobacco or alcohol to those under age, if the defense of entrapment is raised, in light of the above, the judge would be required to rule that grounds for that defense do indeed exist. I also believe that prosecution would be totally unable to establish that a pre-existing inclination to violate the law did exist, and that any reasonable jury would be required to acquit the defendant on the basis of that defense. Consequently, I maintain that the current law enforcement practice of random and indiscriminate stings as a means of detecting violations of and enforcing the laws against sales of tobacco or alcohol to minors is a flagrant violation of the rules of entrapment and totally repugnant in that it seeks to make criminals out of the innocent. It doesn't matter whether this is the intent of law enforcement when it conducts such stings or not. This is definitely the result.

 

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