Entrapment: Don't leave food where your cat can get it!

Omitted scene from Donnie Brasco:

“Yo Donnie, you a cop?”

“Fuggetaboutit.”

“Wait, fuggetaboutit yes, or fuggetaboutit no?”

“Fuggetaboutit.”

“Donnie, a police officer is legally obligated to disclose if, in fact, he is a law enforcement officer, if asked directly.”

“Oh, well then, fuggetaboutit yes.”

Cue gun shot, roll credits.

If you ask an undercover police officer if he is, in fact, a police officer, and he says no, and then arrests you, that is not entrapment. There is no such rule. There would be no undercover cops if this was the rule. So stop spreading this rumor! Right now! Or I'll get the spray bottle!

Moving on.

Entrapment is a far more interesting, nuanced, and complicated issue. Simply stated, entrapment is when a law enforcement officer, or someone working for the government, causes an otherwise innocent person into committing criminal activity that he or she would not have done were it not for the officer's actions.

For example, as I've mentioned before, “No tuxedo cat shall set any paw upon the kitchen table” is the law of my jurisdiction. Human Male and Human Female are the law enforcement officers of our jurisdiction. (Note: I find this imbalance of power eminently unfair.) If Human Male leaves delicious pizza (mmm tomato sauce), on the table while he goes into the kitchen to get a beer (mmm beer), and I jump on the table, drawn by the pizza, he has not entrapped me. He put the pizza on the table because he was going to eat it, not because he wanted to entice me onto the table.

Now compare this situation with one in which Human Female lets me sniff a delicious peanut butter sandwich and then shows me that she is putting it on the table. “Mmm Rory, delicious peanut butter. Don't you want the peanut butter? Come get the peanut butter!” Then she squirts me with the water bottle because she wants to see if I still react. Entrapment! (Also, someone is going to have her toes chewed on in her sleep).

In the second example, Human Female has taken advantage of my weakness for peanut butter to make me do something I wouldn't have otherwise done, (play along here), had she not coaxed me onto the table. Consider the 1958 Supreme Court Case, Sherman v. United States. 356 U.S. 369 (1958). Sherman was a recovering drug addict, who met a man named Kalchinian in rehab. Id. Kalchinian begged Sherman to help him find drugs because the treatment wasn't working. Id. Finally, Sherman gave in, and, not only obtained drugs for Kalchinian, but began using again himself. Id. No one held a gun to Sherman's head and forced him to buy drugs. However, if it had not been for Kalchinian (motivated by a plea agreement with the government), Sherman would not have bought drugs.

It's likely that Kalchinian was acting without the express direction of the government, hoping to offer up anyone he could in order to reduce his own, pending, sentence. If Kalchinian had not been an informer, if he had only been looking for someone to keep him company as he reverted back to drugs, Sherman would not have been able to use entrapment as a defense. Even though he would not have purchased the drugs but for Kalchinian's actions, Kalchinian's affiliation with the government makes all the difference in the repercussions for Sherman.

Entrapment only applies if the government is setting the trap.

If this seems unfair, it's important to understand the purpose of the entrapment defense. It really has nothing to do with the defendant's culpability. Legally, Sherman is guilty regardless of why he bought the drugs, and whether or not Kalchinian was a government informer.

That the entrapment defense allows Sherman to avoid punishment is incidental. The true aim of the entrapment defense doctrine is to deter governments from misdeeds. The law presumes that it is better to let a guilty person go free than to permit the government to prey upon its citizens.

Let's spare a little bit of pity for Sherman, who was trying to rehabilitate himself and was dragged back into criminal activity (and drug addiction!) by Kalchinian. What about, though, the police officer who only offers the opportunity for crime, not the inducement?

Such was the case in State v. Powell, a 1986 case out of Hawaii. 726 P.2d 266 (Haw. 1986). (Remember, each state sets its own precedents, so this definition of entrapment is only binding in Hawaii, but is illustrative of how courts can interpret the doctrine.)

In Powell, a police officer pretended to be a drunk passed out on the sidewalk, with a wallet hanging out of his pocket. Id. Laverne Powell took the wallet (containing nine dollars), and was immediately arrested by two police officers waiting nearby. Id.

The police operation was prompted by a theft problem, but not a rash of thefts of drunks passed out in the streets. Id. (That would have been a whole different kind of law-enforcement problem). Laverne Powell was not induced to criminal activity the way Sherman was. She just was given an opportunity by the Hawaiian police.

The Hawaiian Court latched on to the difference in the crime Powell committed and those that the police were attempting to stop and held that Powell's conviction should be overturned on the basis of entrapment. Id. The police were not trying to catch drunk-robbers (like grave-robbers, but with more alcohol on the part of the victim and less on the part of the criminal). Therefore, in setting up the sting, they created a situation which would probably not otherwise have occurred. It's possible that Powell would never have stolen in any situation other than the blatantly obvious one created by the police. We may never know. And that's the point.

So here is my advice (legal disclaimer, this is not true legal advice, I'm a kitten, not licensed by the Bar, etc. etc.): when committing a crime, follow your heart. If your heart's in it, it's not entrapment.

I'd also like to add a small personal note. By the time this post is published, it will be Human Male's 30^th birthday. Happy Birthday Human Male! You are the best playmate I could have asked for, and I look forward to many years together. Can you go find my jingly ball now?