By Matt Laube
Matthew Laube is recent Marist Alum and a current student of Touro Law School. He lives on Long Island. Which is where Touro is. Follow him on Twitter @Laubizzle
ave you ever heard an alleged criminal use the phrase “I was set up?” Basically, what the defendant is claiming is a criminal law defense known as entrapment. For those of you who are unaware, entrapment limits the power of undercover agents to encourage a target to engage in criminal activity. One of the best examples of entrapment occurs on a regular basis underneath New York City in its busy subway systems. In this scenario, undercover police officers enter a crowded subway car, and one of the officers possesses a back pack with a cell phone sticking out of one of its pockets. As soon as one of the unsuspecting passengers in the subway car takes the phone, the other police officers arrest the individual, and he is charged with larceny.
It’s easy to see that the defendant was set up in this scenario. Moreover, most people would feel bad for the entrapped individual, and would probably question whether they would take the same action if they found themselves in the defendant’s position. One could also point to the fact that if it were not for the entrapment, the crime would have never been carried out in the first place.
However, what if the potential entrapment hit closer to home? For instance, would you still feel bad for the entrapped individual if his alleged crime involved children? One of the leading federal cases for entrapment is Jacobson v. United States. The facts in Jacobson are quite interesting. In February of 1984, Keith Jacobson ordered two magazines which contained photographs of nude preteen and teenage boys through the mail (Oddly enough, sending child pornography through the mail wasn’t illegal under federal law until May of 1984). After discovering that Jacobson had previously ordered child pornography through the mail, the government decided to try and make him order some more magazines, since it was now illegal to do so.
In federal court, the entrapment defense works in the following way. First, the defendant bears the initial burden of proving that law enforcement officials implanted in his mind the thought or urge to commit the alleged crime. If the defendant makes this showing, the burden then shifts to the government to prove that the police didn’t in fact set up the defendant, or that the particular defendant committed the crime in the past.
In the Jacobsen case, the government sent Jacobson fake pamphlets about how to order underage magazines, letters asking him to support the movement to allow explicit child magazines to be sent thought the mail, and questionnaires asking what his interests were when it came to underage magazines. After 2 ½ years of receiving nonstop letters and pamphlets from the government, Jacobson cracked, and ordered a child pornographic magazine. However, the Supreme Court found that Jacobson had been entrapped since the government implanted the idea to break the law in his mind, and since there was no evidence that he had previously broken the law.
Now I will be the first one to admit that Jacobson’s interest in young boys is by no means morally right or acceptable. However, I think it is also important to focus on the Government’s actions in this situation. For 2 ½ years, the government continually contacted Jacobson urging him to order child pornography from magazines. Don’t you find it to be a little absurd that it took the government over 2 years of sending pamphlets, questionnaires, and letters to make Jacobson crack and order one magazine? It could be reasonably argued that if the government had never contacted Jacobson, he never would have ordered the child pornography. Do you think that the government should take pride in the fact that after 2 ½ years of using nonstop government recourses, it enticed one individual to order one single magazine? Isn’t it conceivable that any rational person would break the law after a prolonged period of nonstop enticement by the government?
Now if you’re thinking to yourself at this point of my post, “Wow Matt, all of this reminds me of that television show To Catch a Predator,” then I am proud of you because you’re starting to understand entrapment. To Catch a Predator is a perfect example of how law enforcement agencies are using social media in order to entrap potential criminals. Older men hit up the interweb in search of sexually active teenage girls, and when they show up to the said girl’s house, all they find is Chris Hansen asking them to “have a seat.”
Police tactics such as the one used in To Catch a Predator are quite unique in the fact that the entrapment defense is not available to most defendants. In these situations, it is usually the creepster old man who first contacts the fake teenage girl in a chat room, and suggests performing some sort of sexual activity.
As one can see, social media sites are a powerful tool in the hands of the police. There are also virtually no limits on what the police can and can’t do on websites such as Facebook. They have the power to create fake profiles, events, and groups in hope that unsuspecting individuals will take the bait, and then reel them in once they commit a particular crime. Without enticement by police, would the individual still break the law? Should the police be focusing their attention and resources on more serious crimes? I guess what entrapment ultimately boils down to is a question of, “What is the greater good?”
I prefer to look at entrapment as a necessary evil. There is truth in the argument that without law enforcement presenting the entrapment, the crime is never carried out. However, I truly believe that if an ordinary law abiding citizen found himself in a situation such as the subway example, the phone will more than likely not be stolen. But maybe I’m wrong. Perhaps there are some entrapment opportunities that are simply too enticing for any individual to pass up.
I like to believe that entrapment was established to try and deter crime, and force an individual to think twice before stealing an item, or buying and distributing drugs. Of course there will be instances such as Jacobson in which the government’s actions cross the line, but as long as entrapment is used in a proper narrowly tailored manner, it proves to be an effective tool for law enforcement in fighting crime.
Disclaimer: The above description of the entrapment defense is very brief. Do not rely on this blog entry to establish if entrapment exists and is applicable in your case. Instead, discus this matter with a lawyer.