"In a puff of smoke": drug crime and the perils of subjective entrapment.Circumstances often force the government to resort to deception in order to root out criminal behavior. A common example of government deception is the use of undercover sting operations: government officials participate in illegal transactions in order to "bait" criminals into committing offenses that otherwise may have gone undetected. (1) In such cases, there is a risk that government officials will go too far, coercing individuals to commit crimes they would not otherwise commit. The doctrine of entrapment addresses this risk by providing a defense when official action leads innocent individuals to engage in criminal activity.There are two variations of the defense. (2) The objective approach focuses on the actions of the police and grants a defense where police action creates the probability that a crime will be committed by someone who would not otherwise have engaged in it. (3) The subjective approach considers this risk but adds a second element: whether the defendant was "predisposed" to commit the crime charged. (4) This approach essentially asks if the individual's character is such that one could expect him to commit the crime absent government intervention. The subjective approach is the majority approach and is used in the federal courts and in most states, while the objective approach is preferred within academic circles and is used in a minority of states. (5) While there has been considerable debate over which approach makes for better policy, (6) and recent scholars have addressed the relationship between entrapment doctrine and counterterrorism operations, (7) no one has examined how each approach fits with the practical realities of street crime. This Note undertakes such an examination within the specific context of drug-related street crime, evaluating whether the theoretical assumptions of both approaches are tenable given the realities of drug use and street-level distribution. This Note will argue that the dominant subjective defense has serious flaws when used in drug crime cases and that the objective defense provides a more appropriate method of addressing entrapment defense claims. Part I provides a background of the development of the entrapment defense, and discusses differences between the subjective and objective approaches. Part II examines how certain types of evidence used to show "predisposition"--particularly the prior criminal record of the defendant--introduce prejudice against the defendant's case. Part III examines assumptions about volition inherent in the subjective approach and demonstrates how specific concerns present in drug cases make these assumptions inappropriate. Specifically, this Part assesses research on the cognitive psychology of addiction and volitional disorders to show how the subjective approach assumes a level of volition that many drug defendants cannot meet. Part IV addresses the individual nature of the subjective approach and asserts that its individualized focus fails to give sufficient guidance to law enforcement agents in designing undercover operations. Part V advocates for the use of the objective test articulated in the Model Penal Code and discusses how this approach avoids the problems presented by the subjective approach. This Part also notes the objective approach's additional advantages of limiting police discretion and preventing harassment and discrimination. I. A BACKGROUND OF THE ENTRAPMENT DEFENSE Although the entrapment defense is often associated with the biblical story of Eve's admission in the Garden of Eden: "The serpent beguiled me, and I did eat," (8) the entrapment defense itself is a recent, and distinctly American, innovation. (9) The defense emerged in the late nineteenth and early twentieth centuries, largely in response to changes in the criminal law and methods of policing. (10) This Part provides an overview of the entrapment defense's development to give the foundation needed to properly analyze the subjective and objective approaches. Section A provides a general history of entrapment, discussing its emergence, practical considerations driving the recognition of the defense, and relevant case law. Section B then proceeds to a discussion of the objective and subjective defenses and notes the procedural and substantive differences between the two approaches. A. History of the Entrapment Defense The traditional common law did not contain an entrapment defense. One court asserted that a claim of inducement to crime "has never since availed to shield crime or give indemnity to the culprit, and it is safe to say ... it never will." (11) It was not until the late nineteenth century that the defense emerged in state courts, and it would take another forty years before a federal court recognized entrapment. (12) The defense took hold at the beginning of the twentieth century in response to changes in the scope of the criminal law. (13) At that time, criminal liability expanded to cover certain forbidden economic transactions, often termed "victimless crimes." (14) These new crimes created two novel problems for law enforcement: the commercial nature of these crimes made group criminality more prevalent (leading to the advent of the conspiracy doctrine) and the lack of an injured party meant that crimes of this type were unlikely to be reported. (15) This created a need for deceptive practices which would allow officers to infiltrate these criminal networks and discover offenses. (16) During this period, the nature of policing itself changed as well. At the close of the nineteenth century, law enforcement was primarily a local endeavor, with officers appointed by local political bosses. (17) Reformers, dissatisfied with this system's ineffectiveness, pushed for significant changes in law enforcement, including increased State control of police forces and the training of a professional police force. (18) Federal control over crime also increased, with emerging federal law enforcement agencies such as the Secret Service and the Federal Bureau of Investigation tasked with enforcing an expanding federal criminal law. (19) New federal statutes created a wide variety of new offenses, including mail fraud, seditious speech, prohibition, and violations of income tax provisions. (20) The expansion of criminal liability to reach "group" criminality, coupled with the creation of a specialized police force, resulted in the increased use of sting tactics by law enforcement. (21) Greater state and federal criminal enforcement led to increased cooperation among local, state, and federal officials. (22) As a result, law enforcement officials were able to design intricate schemes for infiltrating criminal networks. (23) Attempts to enforce prohibition led to some of the boldest schemes, including the importation of alcohol from Canada by federal officials for resale, and the establishment of a "speakeasy" operated by federal agents. (24) The prevalence of these tactics created a perceived need for restraints upon overzealous officers and led to the judicial acceptance of the entrapment defense. (25) The Supreme Court first recognized the entrapment defense in a case involving prohibition. (26) In Sorrells v. United States, the defendant was indicted for the unlawful possession and sale of whiskey. (27) At the time of his offense, Sorrells was visited at home by three acquaintances and an undercover federal agent. (28) The agent twice asked Sorrells for some liquor but was rebuffed both times, with Sorrells informing his guest that he "did not fool with whisky." (29) The agent then began sharing war stories with Sorrells, a World War I veteran. The agent once again asked for liquor, and Sorrells retrieved a half-gallon of whiskey, which was sold to the agent for five dollars. (30) At trial, other witnesses noted that the agent was the only person inquiring about liquor. (31) Despite the lack of "evidence that the defendant had ever possessed or sold any intoxicating liquor prior to [this] transaction," (32) both the trial and appellate courts denied his entrapment claim, and Sorrells was convicted. (33) The Supreme Court unanimously found that Sorrells had been a victim of entrapment and reversed his conviction. (34) However, the Court was split on the underlying rationale for the defense, which led to the articulation of two different approaches. (35) The majority, led by Chief Justice Hughes, viewed entrapment as a way to protect innocent defendants from being convicted for crimes they would not have committed without government intervention. (36) In Hughes's opinion, the defense was created as a matter of statutory interpretation: Congress could not have intended to enforce criminal laws against innocent citizens who were lured into criminality by government officials. (37) Under this rationale, courts evaluating a defendant's claim of entrapment analyze the characteristics of the particular defendant to determine whether the crime would have occurred without the government's intervention. (38) Where the defendant is "a person otherwise innocent" tried for a crime conceived by government officials, punishment is inappropriate and the defense is available. (39) However, where the defendant's own "conduct and predisposition" indicate that he would have committed the offense even without government intervention, the entrapment defense is unavailable. (40) Because of the focus on the characteristics of the defendant, this approach to entrapment analysis is termed "subjective." (41) Justice Roberts's concurrence--joined by Justices Brandeis and Stone--found the basis for the entrapment claim to rest solely upon the officers' conduct. (42) In this view, a defense is available when law enforcement use tactics which are "so revolting" they "ought not to be permitted by any self respecting tribunal." (43) The defense thus emerged as an outgrowth of the court's supervisory powers over judicial proceedings. (44) Where misconduct during a sting is sufficient to constitute entrapment, the court is to quash the indictment against the defendant and dismiss the case. (45) As one state court interpreting the dissent notes, this also provides a measure of deterrence against entrapping police practices. (46) Because this form of entrapment focuses solely on police methods, the particular characteristics of the defendant are irrelevant and are excluded from the inquiry. (47) Therefore, this approach to entrapment analysis is termed "objective." B. "Subjective" vs. "Objective" Entrapment The two approaches described in Sorrells roughly outline the two approaches used today. In short, both defenses include an assessment of whether the official conduct at issue would induce an innocent individual into the commission of crime. The objective entrapment defense ends here: if a judge assesses the police action to constitute an unlawful inducement, the trial ends; otherwise, the defense is denied. (48) This approach is most appropriately conceived as a kind of affirmative defense, providing a defense to liability regardless of personal guilt and placing the entire burden of production on the defendant. (49) The question posed is how the government's actions would have affected a hypothetical "normally law-abiding" person acting in the defendant's circumstances. (50) Where the government's actions "create a substantial risk that [the charged offense] will be committed by persons other than those who are ready to commit it," and these actions result in the commission of an offense, the defendant has been entrapped and prosecution is barred. (51) Because this approach focuses solely upon whether the methods used by law enforcement create a risk of inducing any innocent individuals into criminality, the defendant's personal predisposition to act illegally is not examined. (52) Therefore, character and reputation evidence are excluded as irrelevant. (53) In contrast, the subjective approach exists as a matter of statutory interpretation, based on the assumption that the legislature could not have intended for criminal statutes to reach situations involving the entrapment of innocents. (54) This approach goes one step further in its analysis than does the objective approach. If the defendant is able to satisfy the burden of proving inducement, courts applying the subjective approach to entrapment require the State to prove the predisposition of the defendant to commit the offense. (55) The purpose of predisposition analysis is to differentiate "between the trap for the unwary innocent and the trap for the unwary criminal." (56) The question is whether the defendant would have been willing to commit the charged offense before the government acted upon him. (57) A wide variety of considerations are deemed relevant in determining predisposition: (1) whether the defendant readily responded to the inducement offered, (2) the circumstances surrounding the illegal conduct, (3) the state of mind of a defendant before government agents make any suggestion that he shall commit a crime, (4) whether the defendant was engaged in an existing course of conduct similar to the crime for which he is charged, (5) whether the defendant had already formed the design to commit the crime for which he is charged, (6) the defendant's reputation, (7) the conduct of the defendant during the negotiations with the undercover agent, (8) whether the defendant has refused to commit similar acts on other occasions, (9) the nature of the crime charged, and (10) the degree of coercion present in the instigation law officers have contributed to the transaction relative to the defendant's criminal background. (58) If a lack of predisposition is found, the defendant is outside the intended scope of the statute and is afforded a defense to his conduct. (59) However, if he is deemed to be predisposed, the entrapment defense is denied and the jury decides upon the defendant's guilt or innocence. (60) Because of the different theoretical bases for the objective and subjective approaches, there are important procedural differences between the two. For instance, the two tests differ in whether they conceive of the question as one of fact or law. Because the objective approach is often rooted in the court's duty to supervise official conduct, objective entrapment analysis is conceived as a question of law to be decided by the judge. (61) The question of entrapment is decided separately from the trial itself, as it is irrelevant to the factual guilt or innocence of the defendant. (62) By contrast, under the subjective approach, the questions of inducement, predisposition, and entrapment are questions of fact to be decided by the jury. (63) This approach sees the entrapment question as one part of the overall question of guilt or innocence, making entrapment part of the "beyond a reasonable doubt" analysis. Thus, evidence about the defendant's criminal record, prior acts, and reputation for criminality may be introduced to the jury to show predisposition. (64) As the evidence is not submitted to prove the defendant's guilt by showing his propensity to commit the crime, but instead to show that he was not legally "entrapped," the introduction of this evidence does not violate evidentiary prohibitions against prior "bad acts" evidence. (65) Where the State can prove the existence of predisposition beyond a reasonable doubt, the entrapment defense fails. (66) II. SUBJECTIVE PREDISPOSITION AND PREJUDICE AGAINST THE DEFENDANT As noted above, the subjective approach primarily differs from the objective through its attempt to discern the "predisposition" of the charged defendant. Though a variety of information is relevant to this decision, (67) the most convincing evidence of predisposition will be evidence of the defendant's prior engagement in similar acts. (68) To this end, the predisposition analysis allows the introduction of evidence that would be inadmissible to show the defendant's guilt: where relevant to his disposition to commit the crime at hand, evidence about the defendant's prior criminal record and prior uncharged illegal acts can be admitted. (69) The risk of prejudice presented to the defendant's case-in-chief by this evidence is clear. The assumption that one's prior illegal acts creates a "predisposition" to engage in other criminal acts in the present case is not far from arguing that this predisposition led him to commit the charged crime. The latter inference is a "propensity" argument forbidden by evidence rules. (70) The reason for generally excluding this "other acts" evidence is not because it is irrelevant to a finding of innocence or guilt, but instead because it may be considered too probative by the fact-finder, creating the potential for one's present guilt or innocence to be determined by past acts. (71) However, this evidence is allowed in the context of subjective entrapment, as the evidence is not introduced to prove the defendant's actual commission of the act, but instead to rebut a defendant's entrapment defense by showing predisposition. (72) This general criticism of the predisposition prong does not fully convey the risk of prejudice present in drug cases. Statutory regimes prohibiting drug crimes cover a wide variety of conduct, both with regard to the substances prohibited and the relationship between the defendant and the substance. (73) Thus, there are many ways for an individual to be implicated in a drug crime. Unfortunately, courts performing a predisposition analysis fail to take a sufficiently nuanced view of the defendant's conduct in order for the analysis to accurately gauge one's predisposition to commit the crime charged. (74) Courts allow evidence of the defendant's prior use of one substance to show a willingness to use any illicit drug, with the theory being that "[t]he relevant factor is the type of activity undertaken, not the identity of the drugs." (75) Additionally, courts allow introduction of evidence of drug use to show a propensity for more serious criminal conduct, such as possession with the intent to distribute or actual engagement in a sale. (76) The result is an inference that drug crimes are generally interchangeable; the jury is presented with evidence the government uses to assert that a person willing to use marijuana, cocaine, or heroin is similarly willing to sell or traffic these drugs. (77) Where the subjective approach to entrapment analysis is employed, the jury is charged with evaluating this kind of prejudicial evidence and determining predisposition as a matter of fact. (78) However, people are generally very poor judges of what motivates others' behavior: we have a strong tendency to overstate the extent to which individual traits drive behavior and underestimate the force of situational elements. (79) Additionally, the greater the extent to which we believe another's behavior deviates from the norm, the more confidence we place in our belief that the action's cause is personal to the actor. (80) Thus, the simple fact that an offense occurred can lead the jury to assume the defendant's dispositional irregularity and deny an entrapment claim. (81) Within the context of entrapment, this fundamental attribution error creates a tendency for jurors to blame a defendant's character--ignoring situational factors--wherever his actions deviate from the jury's notions of normal conduct. (82) Allowing evidence of prior convictions and uncharged illegal acts allows the jury to confirm its assumptions, even where the defendant's past acts differ from the crime at issue. (83) Further, this kind of evidence increases the jury's confidence in its attribution of the crime to predisposition, as the evidence of prior "bad acts" leads the jury to perceive greater deviance from the standard of normal conduct. (84) These tendencies demonstrate the problem posed by the introduction of "predisposition" evidence in drug cases, where courts treat a variety of conduct as interchangeable. III. SUBJECTIVE ENTRAPMENT, DRUG USE, AND VOLITION As noted above, the purpose of the predisposition inquiry is to determine whether the offense was created by the government or the defendant; in other words, the goal is to determine whether the police operation was a "trap for the unwary innocent [or a] trap for the unwary criminal." (85) This analysis divides defendants into two groups: "predisposed" and "innocent." A "predisposed" defendant is one who would commit the crime absent police inducement, meaning the police action is not creating a new crime, but is merely ferreting out a criminal act that would have occurred otherwise. (86) In short, the "predisposed" individual would respond to a normal inducement to engage in crime. (87) In making this distinction between "predisposed" and "innocent" defendants, we must assume that the predisposed actor has a certain quality of volition in choosing whether or not to commit the offense: the "predisposed" is one who would choose to engage in the offense absent the greater incentive presented by the inducement, while the "innocent" is one who is acting only in response to an inducement. (88) This notion of predisposition makes sense only so long as the predisposed defendant is capable of refusing a lesser inducement, but opts to commit the offense anyway. If the defendant is incapable of rejecting this lesser inducement, the "rational actor" model of entrapment breaks down, as there is no meaningful separation between the defendant who responds solely to the police conduct and those who would commit the offense regardless. (89) This concern is present in drug crimes, due to the coincidence of volitional disorders and drug abuse. Volition in this context is an idea distinct from the notion of voluntariness which underlies general criminal liability. Determining whether one engaged in a "voluntary act" requires an assessment of whether the individual had some conscious part in causing his action. (90) This concept ensures that unconscious or reflective physical acts, ones the individual literally could not control, do not result in liability. (91) Volition instead relates to how "action is planned, controlled, and modulated in the service of the agent's needs, motives, desires, or goals." (92) This is also distinct from cognition, which concerns how "action is planned, controlled, and modulated in response to conditions encountered in the environment." (93) Some psychological evidence suggests that there are two ways in which action could be motivated: through a rapid reaction to external events, or through a reflective process weighing short- and long-term costs and benefits. (94) One model, the somatic marker hypothesis, asserts that conscious decisions are driven by two processes: an impulsive system which triggers reflective responses "quickly, without much ... effort" and a reflective system "driven by thoughts and reflection." (95) Under this model, the reflective system is able to regulate the impulsive system by assessing the potential consequences of acting impulsively. (96) Where those consequences are perceived as sufficiently severe, the reflective system overrides the impulsive system. (97) However, for the reflective system to operate as an efficient check on the impulsive system, it must be able to learn from past experiences to tie certain consequences to certain actions. (98) In addition, the reflective system is able to govern only where the future consequence is perceived as more significant than the immediate benefit; where the immediate gain is perceived as large enough, the impulsive system will control. (99) Substance abuse has been tied to disorders affecting the ability of the reflective system to govern the impulsive system. (100) Frequent use of addictive substances alters the chemistry of the brain, particularly affecting how neurotransmitters are released and reabsorbed into the brain. (101) These chemical changes are associated with abnormal activity in the areas of the brain related to inhibitory control, and are linked to disinhibition and compulsive behavior. (102) Some evidence also indicates that substance dependence correlates to abnormalities in the ventromedial prefrontal cortex ("VmPFC"), an area of the brain linked to decision-making and impulse control. (103) These changes have been offered as potential explanations for the persistence of substance abuse despite its long-term negative consequences, as the changes in brain chemistry result in the user's inability to consider the long-term costs of persistent use. (104) This volitional impairment goes beyond the continuing drug use itself. Substance dependent individuals with inhibitory problems show a general inability to resist immediate gains in order to avoid long-term losses. (105) Some addicts also show a skewed assessment of future rewards as compared to non-addicts, dramatically discounting any rational consideration of future costs and benefits in favor of immediate gains. (106) Combined, these attributes create a perfect storm of factors that undermine the user's ability to make decisions effectuating his short-term and long-term goals: increased compulsion and loss of inhibition limit the ability to reject short-term opportunities, the discounting of long-term benefits and consequences biases action in favor of attaining immediate gains, and the inhibition of normal reactions to harms diminish the deterrent effects of these harms in future situations. Because drug abuse is pervasive within prison populations, many defendants who would likely be considered "predisposed" under the subjective analysis approach are also likely to be drug abusers. (107) As a result, defendants found predisposed and denied use of the entrapment defense--who will therefore likely be convicted of the substantive crime--likely suffer from volition-impairing disorders. A high incidence of volition-impairing disorders among defendants denied entrapment would severely undermine one of the conceptual bases for the subjective entrapment defense. Typically, "predisposed" defendants are those who made the conscious choice to engage in crime before the police entered the scene, while "innocent" defendants are those who were compelled into criminality as a result of the police inducement. In the context of drug crime, however, this assumption is turned on its head: "predisposed" defendants are those most likely to have their wills broken and to be compelled into unlawful action in response to police action. IV. THE SUBJECTIVE APPROACH'S LACK OF SYSTEMIC GUIDELINES The subjective theory of entrapment focuses on the nature of the individual offender; as a result, the lawfulness of police action comes to depend on factors personal to the defendant. The use of this individualized method of entrapment creates problems for police in combating drug crime. Both the prevalence of drug crime and the variety of potential interactions between police and offenders suggest a need for clear rules of engagement, (108) as officers must necessarily attempt to predict the lawfulness of their conduct in a wide variety of different situations. The subjective method's focus on the individual offender ignores this need, complicating attempts at enforcement and skewing law enforcement incentives away from effective crime prevention. Drug use and related offenses present near-constant opportunities for police intervention. In 2009 alone, there were over 1.6 million drug-related arrests, constituting 12.1% of all arrests. (109) These arrests cover several types of drug-related activity--including use, sale, and manufacture--and a variety of substances--such as heroin, cocaine, and marijuana. (110) This wide variety of activity presents a variety of potential methods for police intervention. (111) Some methods focus primarily on detaining individual offenders, such as the "knock and talk," (112) the "undercover buy," (113) and the "reverse sting." (114) Others involve the infiltration of a network, leading to the discovery of several dealers and traffickers, creating a greater number of arrests. (115) Due to the secretive nature of drug dealing and the complex nature of criminal networks, successful prosecution of drug offenses often requires law enforcement officials to use deception in dealing with suspected criminals, including engaging in conduct that would be considered criminal if performed by a citizen. (116) Assuming that the goal of these operations is to lower crime by incarcerating offenders, police officers need a way of designing a sting ex ante that will ultimately comply with legal rules. Officers need guidance to tell them how not to commit entrapment in order to plan effective stings. (117) Unfortunately, the subjective entrapment doctrine does not provide such guidance. First, questions of inducement and predisposition are normally questions for the jury under the subjective inquiry. (118) As a result, there are no specific findings on inducement or predisposition, simply a general verdict of guilt or innocence which necessarily includes a decision on entrapment. (119) Moreover, the jury's general finding in one case is not binding on future juries, meaning that similar police responses in different cases may result in opposite legal outcomes, creating areas of uncertainty within the entrapment doctrine. This creates an inability to plan lawful operations ex ante, and creates the risk that a defendant will be exposed to entrapment simply because officers were unable to determine whether or not their actions constituted entrapment. (120) Second, because the subjective inquiry focuses largely on characteristics of the defendant, whether police action constitutes entrapment will depend partly on information unknown--and sometimes unknowable--to the police when the sting begins. (121) In evaluating predisposition, juries consider characteristics about the defendant that are independent of the interaction with the officer, such as prior criminal record, prior uncharged crimes, and past drug use. (122) However, many police operations are simply an attempt to draw out unknown criminals, either by providing appealing "bait" or by acting as a member of a criminal network in order to gain information on others within the network. (123) In these situations, the officer will not necessarily have access to information bearing on predisposition, meaning that whether the officer's conduct constitutes unlawful entrapment turns partly on information the officer could not have taken into account. Third, focus on the predisposition of the individual defendant creates perverse incentives for officers attempting to combat drug crime. The presumption behind the subjective entrapment defense--that it is wrong for an officer to cause crimes to be committed that would not otherwise occur (124)--leads to an implicit causation analysis: the entrapment defense should be available where the officer's actions are a "but-for" cause of the charged crime. However, in drug cases, where "predisposition" is read broadly, any prior involvement with illegal drugs can be brought to bear on one's predisposition to commit any drug-related offense. (125) This dilutes the causation analysis by removing scrutiny of police action wherever the propensity to commit any drug-related offense is shown. (126) Additionally, whenever a defendant is found to be predisposed towards criminality, he is denied an entrapment defense, regardless of the level of inducement. (127) This creates an incentive for law enforcement to target and pressure known "predisposed" individuals such as past users and low-level offenders. Police can induce these individuals into the commission of further crimes with the knowledge that the entrapment defense would not be available. (128) A knowledgeable officer will also know that his department's funding depends largely on arrest rates, (129) and that there is unlikely to be any pushback from the prosecutor where those arrests result in convictions. (130) This pushes police officers toward inducing past users and low-level offenders into greater crime: arrests rise as individuals give in to inducement, the arrests lead to successful convictions, and the officer believes he is making the community safer by helping to incarcerate offenders who would have committed some crime anyway. (131) The predisposition prong is thus used as a shield against entrapment, and actually encourages the inducement of new and more significant crimes. This removes any disincentive to pressure individuals into committing greater crimes than they would otherwise, ultimately creating an incentive for officers to use entrapping techniques to increase pressure on individuals who may ultimately cooperate in large-scale investigations. (132) It should be noted that my argument above is distinct from the deterrence-based argument often put forward to justify the entrapment defense. (133) The deterrence argument has been heavily criticized as operating on a faulty presumption that police misconduct can be deterred through the use of the indirect sanction of letting the defendant go free. (134) The criticism also notes that officers willing to engage in misconduct to get an arrest are those least likely to be concerned with the outcome of the case. (135) However, my argument does not rely on the ability of the entrapment defense to deter misconduct, but instead assumes that the majority of police are attempting to reduce crime legitimately and within legal boundaries. Unfortunately, the subjective prong does not consistently provide sufficient guidance to officers to allow them to do so. The only clear guidance to avoid entrapment, which is to target defendants who are predisposed, creates a heavy incentive into inducing the defendant into further criminality that will not be protected by an entrapment defense. V. TOWARD A BETTER SOLUTION: OBJECTIVE ENTRAPMENT Given these flaws with the subjective approach, the question then turns to what the standard for entrapment should be. This Note argues that the objective standard presented by the Model Penal Code, which defines entrapment with reference to the tactics used by law enforcement, (136) provides the more appropriate approach to entrapment within the context of drug crime. Section A discusses how the objective standard avoids the introduction of prejudicial evidence. Section B discusses how the objective standard avoids the assumption of a false volitional boundary between "innocent" and "predisposed" drug crime defendants. Section C then discusses the objective approach's ability to provide clear guidance to police operations, and the significant advantages it enjoys in restraining police misconduct and excessive operations. Essentially, an objective standard of entrapment provides a check against police discretion that is not present within a subjective standard, limiting the potential that individuals will be convicted as a result of police misconduct. A. Avoiding Prejudice Against the Defendant As noted above, one of the primary problems created by the subjective entrapment doctrine is the introduction of unfair prejudice against the defendant. (137) The use of a predisposition inquiry allows for the introduction of the defendant's prior crimes, which prejudices him before the jury by providing a basis to believe that this predisposition led him to offend in this particular case. (138) By contrast, the objective entrapment doctrine focuses solely on the police conduct in the case at issue, avoiding discussion of the defendant's character entirely, so that evidence of the defendant's prior conduct is inadmissible. (139) As a result, the objective entrapment inquiry does not present the threat of prejudice to the defendant posed by the subjective analysis. One concern with the objective entrapment doctrine is the possibility that morally culpable individuals will escape punishment simply because the offense happened to be committed with a police officer present. (140) This concern misses the mark. The idea of entrapment deals solely with individuals who are culpable within the language of the statute; (141) therefore, any individual who receives an entrapment defense is "getting away" with a crime he factually committed. In addition, allowing a predisposition prong simply shifts the error rate the other way: to say that one is predisposed is not actually equivalent to saying that he would have committed the crime, but only that he may have taken the opportunity to commit this crime. (142) This point is especially important when considering recovering drug addicts, a population of individuals who would be particularly susceptible to inducements, (143) yet are attempting to avoid engaging in criminality. In 2009, roughly 2.6 million people participated in some form of specialty drug treatment. (144) Of these, over forty percent were treated for addictions to marijuana, cocaine, or heroin. (145) Because these individuals previously engaged in illegal drug use, they would likely be found predisposed under the subjective analysis. (146) As a result, though these individuals are undergoing treatment and actively attempting to avoid engaging in illegal drug use, their addictions make them attractive targets for sting operations as they are particularly likely to succumb to inducements. Where this is the case, charged defendants fall within the logic of the subjective entrapment defense, in that the police created the commission of a crime that would not have otherwise occurred. (147) However, due to their addictions, they could only be afforded an entrapment defense under the objective standard. B. Avoiding the Assumption of Volition Another problem noted with the subjective theory of entrapment was the false attribution of a "willingness" to commit a crime (a label of "criminal" or "predisposed") to an individual who lacks the volitional ability to refuse the police offer. (148) Where such an individual is targeted, a subjective entrapment defense is unavailable, as his drug use leads to a finding that he or she was "predisposed" to commit the crime. (149) Therefore, the subjective doctrine in fact denies the defense to many who lacked the willpower to refuse the police inducement, creating a standard that the addict cannot meet. Instead of turning on misguided notions of the defendant's free choice, the objective approach assesses whether the conduct of the police officer was sufficient to create a "substantial risk" that the average citizen's will would be overborne. (150) This means that the same standards for entrapment apply to all individuals in all situations: police action constituting an improper inducement will constitute entrapment regardless of the character of the individual targeted. (151) However, the officer's knowledge of some characteristics of the defendant, such as the defendant's addiction, may be included as characteristics of the hypothetical citizen for the purpose of determining whether the inducement was improper. (152) Therefore, to the extent that police action specifically targets those who would be unable to refuse an inducement, the objective standard could allow consideration of this in determining a "substantial risk." (153) As a result, an entrapment defense would be available to individuals who are extremely likely to give in to even minimal inducements, a protection not afforded by the subjective standard. C. Limiting Police Discretion The subjective approach also lacks clear standards for police designing stings ex ante. (154) Within the context of drug crimes, this is particularly true: A survey performed by the U.S. Department of Health and Human Services estimated that in 2007, roughly 118.7 million people aged twelve or over--about 47.1% of the United States population--had used illicit drugs within their lifetime. (155) Further, nearly 38 million people had used illicit drugs within the past year, and 21.8 million had used within the previous month. (156) The result of this pervasiveness is that police discretion is extremely broad, allowing police considerable leeway in designing sting operations with a seemingly limitless number of possible targets. (157) This, in turn, creates the threat that this discretion will be used in a harassing, discriminatory, or excessive manner. Police have the opportunity to successfully design schemes targeting the public at large, as opposed to schemes designed to ensnare particular individuals. (158) Viewing these schemes and those targeting individuals, it becomes apparent that law enforcement officials have the option and ability to design a wide variety of sting operations, which can vary widely with regards to the breadth of the population targeted. The existence of such discretion creates cause for concern, as it creates the potential for discriminatory enforcement. (159) Where officers are given considerable leeway in designing sting operations--as is the case in drug stings--there is the possibility that operations will be designed to disproportionately target poor and minority groups. (160) This is not merely a hypothetical concern; despite roughly equal rates of drug use among blacks and whites, (161) policing efforts in the "War on Drugs" have primarily targeted minority groups. (162) Additionally, the great discretion afforded officers allows for tactics specifically targeting known former users, including recovering drug addicts likely to succumb to inducement. (163) This effectively allows officers to continue targeting past drug defendants and prior users, regardless of their actual current likelihood of drug use. (164) The use of a subjective standard of entrapment largely insulates these tactics from scrutiny. As noted previously, where there is a prior history of drug use, the subjective approach's predisposition analysis will operate to deny the defendant an entrapment defense. (165) The substantial prevalence of drug use among the general population means that many individuals charged as a result of discriminatory or problematic sting operations will not be able to use the entrapment defense. (166) The result is that any offending police conduct will be left unexamined by the court, leading to the conviction of the defendant, and thus, the legitimization of these undesirable stings. (167) Additionally, the denial of any entrapment defense to a predisposed defendant creates the potential for harassment. (168) Where an officer knows that a defendant is likely to be predisposed, the degree of the officer's inducement is no longer relevant, as the entrapment defense will likely be unavailable regardless of whether an improper inducement existed. (169) Therefore, in the case of a truly "predisposed" defendant, there is no check preventing an officer from continuously applying greater pressure until the targeted individual breaks, regardless of the defendant's initial attempts to resist. By contrast, an objective approach provides a check against police discretion by giving clear legal rules that focus solely on whether the police operation was lawful. (170) For instance, section 2.13 of the Model Penal Code provides an entrapment defense where a law enforcement officer "induces or encourages" the commission of an offense through methods "that create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it." (171) In doing so, the Model Penal Code test--like other proponents of the objective approach--effectively imposes limits on the investigating officer's authority; where the officer's actions improperly induced the charged criminal conduct, those actions constitute entrapment and the defendant cannot be convicted. (172) These limits can be articulated at either a broad or narrow level. Where the inducement is described and accepted by the court in general terms, it will likely apply to a wider variety of situations, and thus will act as a broad limit upon police discretion. (173) In contrast, where the inducement is described and accepted at a very precise level, it will restrict police discretion by disallowing some potential sting operations, but will do so only narrowly. (174) In assessing the police conduct at issue, the objective approach looks at whether the officer presented an improper inducement within the context of the particular sting operation. (175) Therefore, elements personal to the defendant, such as his initial reaction to the police inducement, are only considered where they are relevant to assessing the reasonableness of the officer's conduct. (176) However, because there is no predisposition analysis under the objective approach, these characteristics are not considered in assessing the defendant's culpability. (177) As a result, the objective approach to entrapment analysis provides considerable protection against police misconduct, limiting police discretion in ways that prevent against excess. By taking account of the entirety of the officer's contacts with the targeted individual, the objective approach provides an entrapment defense where police action involves continued pressure on an individual attempting to resist being drawn into criminality and creates clear limits on police conduct. (178) Enforcement of these limits upon police discretion will have the side effect of preventing some discriminatory policing practices, by allowing judicial scrutiny of excessive sting operations against minority communities. (179) The creation of clear limits on authority indicates to law enforcement which practices are lawful, allowing officers to design stings that will avoid unlawful entrapment. (180) Establishing these limits, however, does not require the creation of inflexible doctrinal rules that overlook meaningful differences between different operations. (181) The context of each instance of police action is clearly relevant in any entrapment analysis, and the rules established should be sufficiently narrow to allow for different situations to be treated differently. (182) What is important is that courts can create principles that can be used by police in designing undercover operations, and that there are clear prohibitions on practices in specific contexts that create a risk of entrapment. Because the objective approach allows for the creation and application of these principles, it is clearly preferable to the subjective approach. VI. CONCLUSION The subjective approach to entrapment is simply an inadequate means of dealing with the question of entrapment in drug cases. The predisposition inquiry of the subjective approach allows for considerable prejudicial evidence to be introduced against the defendant at trial, potentially harming his claim of innocence. The subjective approach is also based on an assumption of a certain level of volition, a level that may not be present where past drug use has diminished an individual's volitional capacity. Finally, the subjective approach's individual focus fails to provide clear rules for police, which diminishes the ability of officers to avoid entrapping conduct going forward. These problems are addressed by the use of an objective approach to entrapment. This approach focuses on the tendency of the police conduct to create crimes that would not otherwise occur, without analyzing the characteristics of the individual defendant. Such analysis results in a safer approach to dealing with drug crimes by removing the threat that the individual's past record will be allowed to prejudice his current case. The objective approach also removes the potential of bias against those with volitional impairments, as the defense applies to all individuals facing the same police tactics equally. In addition, this defense allows for the development of clear rules of conduct for police, allowing law enforcement agencies to design legally acceptable stings ex ante. Finally, the objective approach also has the benefit of providing a check against police discretion in an area where that discretion is very broad, creating the potential for discrimination or harassment. In short, the objective approach provides considerable benefit to both charged defendants and investigating officers, while still providing a legal doctrine that is flexible enough to adapt to the future needs of law enforcement. (1.) See Bruce Hay, Sting Operations, Undercover Agents, and Entrapment, 70 Mo. L. REV. 387, 389 (2005) (defining a "sting operation" as "any effort by the authorities to encourage wrongdoing, with the intention of punishing the offenses that result"). (2.) Compare People v. Barraza, 591 P.2d 947 (Cal. 1979) (applying the first variation of the entrapment defense--the objective approach), with Sherman v. United States, 356 U.S. 369 (1958) (applying the second variation of the entrapment defense--the subjective approach). (3.) See, e.g., Barraza, 591 P.2d at 955 ("[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?"). (4.) See, e.g., Sherman, 356 U.S. at 373 (requiting inquiries into "the conduct of the government agent" and the defendant's "conduct and predisposition" for entrapment defense). (5.) See PAUL MARCUS, THE ENTRAPMENT DEFENSE [section]10.03 (4th ed. 2009) (noting "[c]ontinued [d]ominance of the [s]ubjective [t]est" in practice); Andrew Carlon, Note, Entrapment, Punishment, and the Sadistic State, 93 VA. L. REv. 1081, 1090 (2007) (noting academic preference for objective test). (6.) See, e.g., Dru Stevenson, Entrapment and the Problem of Deterring Police Misconduct, 37 CONN. L. REV. 67, 73 (2004) [hereinafter Stevenson, Deterring Police] (explaining that the "purported purpose of the 'objective test'--[deterrence of misconduct through entrapment] is unlikely to work"); Ronald J. Allen, Melissa Luttrell & Anne Kreeger, Clarifying Entrapment, 89 J. CRIM. L. & CRIMINOLOGY 407, 409--10 (1999) (arguing that the two tests collapse into one another in practice). (7.) See, e.g., Wadie E. Said, The Terrorist Informant, 85 WASH. L. REV. 687 (2010) (claiming that traditional entrapment doctrine does not provide a realistic defense in terrorism cases); Dru Stevenson, Entrapment and Terrorism, 49 B.C.L. REV. 125 (2008) (arguing for a rebuttable presumption of predisposition in terrorism cases). (8.) Genesis 3:13. One observer notes that despite the common association with the idea of entrapment, the biblical example is not one where the traditional legal defense applies, as "the tempter and the punisher were not working together." Carlon, supra note 5, at 1083. (9.) MARCUS, supra note 5, at [section][section] 1.01-.05. For an excellent overview of the history of the entrapment defense, see generally Rebecca Roiphe, The Serpent Beguiled Me: A History of the Entrapment Defense, 33 SETON HALL L. REV. 257 (2003). (10.) See Roiphe, supra note 9, at 274-75 (describing emergence of the entrapment defense). (11.) Bd. of Comm'rs v. Backus, 29 How. Pr. 33, 42 (1864). (12.) The defense was first recognized in Saunders v. People, 38 Mich. 218, 221-22 (1878). That this was the seminal entrapment case is surprising, as the facts make it unlikely that the defense would succeed today: the defendant approached a police officer to ask for his assistance in committing a burglary. Id. at 221. Because the defendant made his request without any goading on the officer's part, there is no basis for finding that an inducement was offered, and his defense would fail under both the subjective and objective offenses. See infra text accompanying notes 42-54. However, the Saunders court found the basis for acquittal to lie in the government's misconduct: Where a person contemplating the commission of an offense approaches an officer of the law, and asks his assistance, it would seem to be the duty of the latter, according to the plainest principles of duty and justice, to decline to render such assistance, and to take such steps as would be likely to prevent the commission of the offense, and tend to the elevation and improvement of the would-be criminal, rather than to his farther debasement .... Human nature is frail enough at best, and requires no encouragement in wrong-doing. Saunders, 38 Mich. at 221-22. The defense first appeared in federal court in Woo Wai v. United States, 223 F. 412, 412-14 (1915), where the Ninth Circuit Court of Appeals overturned the conviction of an individual who assisted in the illegal immigration of Chinese aliens after repeated pressures by federal officials. (13.) See Roiphe, supra note 9, at 274-75 (describing emergence and acceptance of entrapment defense as a result of changing police tactics and criminal law). (14.) Stevenson, Deterring Police, supra note 6, at 83-84. Stevenson's list of such crimes includes "Comstock laws, Prohibition, the Mann Act, narcotics regulation, restrictive immigration laws, etc." Id. at 83. The Comstock laws were federal laws prohibiting the sending of obscene materials and information about contraceptives through the U.S. mail. See Maggie Ilene Kaminer, How Broad Is the Fundamental Right to Privacy and Personal Autonomy? On What Grounds Should the Ban on the Sale of Sexually Stimulating Devices Be Considered Unconstitutional?, 9 AM. U. J. GENDER Soc. POL'Y & L. 395, 398 (2001) (describing purpose of the Comstock laws). The Mann Act prohibited the transportation of women in interstate commerce for the purposes of prostitution. See John A. Hall, Sex Offenders and Child Sex Tourism: The Case for Passport Revocation, 18 VA. J. Soc. POL'Y & L. 153, 165-66 (2011) (providing a brief history of the Mann Act). (15.) Stevenson, Deterring Police, supra note 6, at 84-85. (16.) See id. at 85. (17.) See Roiphe, supra note 9, at 263. (18.) Id. at 265. Roiphe notes that specific reforms advocated were "more scientific methods of crime detection, standardized admission requirements, formal education, centralization, improved technology, and higher standards of policing." Id. (19.) Id. at 267-68. (20.) Id. at 267-69. Of these, prohibition is the most notable, having been considered so abhorrent as to lead to a constitutional amendment. U.S. CONST. amend. XVIII (repealed 1933). This amendment was enacted after decades of state regulation supported by the Supreme Court. See, e.g., Mugler v. Kansas, 123 U.S. 623, 671 (1887) (upholding Kansas state prohibitory liquor law). (21.) Roiphe, supra note 9, at 265 (explaining that private entrapment predated the widespread use of police entrapment). "[B]usinesses took matters into their own hands, hiring private detectives to protect their interests. Government officials joined forces only after private detectives had employed covert tactics to uncover the crime." Id. (22.) Id. at 270. (23.) Id. at 269 (noting how increased relations between local, state, and federal law enforcement during prohibition "institutionalized the federal wing of law enforcement while simultaneously increasing the scope and creativity of its undercover tactics"). (24.) Id. at 270. See The Bowery Boys, Bridge Whist Club: The Worst Booze Your Taxes Can Buy!, N.Y.C. HIST. (April 8, 2011, 11:13 AM), http://theboweryboys.blogspot.com/2011/04/ bridge-whist-club-worst-boozeyour.html. The speakeasy, known as the Bridge Whist Club, was opened in 1925 in New York City. Id. Government agents inside the bar would chat with clientele over drinks and cards to attain information about other speakeasies and bootleggers, often recording private conversations going on at tables inside the bar. Id. However, due to the unwillingness of Treasury Department agents to provide customers with actual alcoholic beverages, the ethanol normally present in drinks was replaced with wood alcohol, also known as methanol. Id. Toxic in nature, the introduction of the substance to several batches of alcohol sold resulted in the poisoning deaths of hundreds of New Yorkers and congressional furor leading to the closing of the speakeasy. See id. (25.) See Michael A. DeFeo, Entrapment as a Defense to Criminal Responsibility: Its History, Theory and Application, 1 U.S.E L. REV. 243, 250-51 (1967) ("Viewed in historical perspective, the whole problem of entrapment has stemmed from a judicial reaction to the means used by police to achieve presence at such illegal transactions, either in person or through the agency of informers."). According to DeFeo, the Prohibition Era led to near-universal acceptance of the doctrine, with the last judicial criticism of entrapment as a defense occurring in United States v. Washington, 20 F.2d 160 (D. Neb. 1927). Id. at 250. At the time of that case, the Supreme Court had not yet recognized the entrapment defense. Id. (26.) Sorrells v. United States, 287 U.S. 435 (1932). (27.) Id. at 438. (28.) Id. at 439. (29.) Id. at 440. (30.) Id. at 439. (31.) Id. at 439-40. (32.) Id. at 441. (33.) Id. at 438-39. (34.) Id. at 438. (35.) Compare id. (arguing that the entrapment analysis should include consideration of the defendant's personal characteristics), with id. at 453 (Roberts, J., concurring) (arguing that the entrapment analysis should include only consideration of the police action at issue). (36.) Id. at 441-42 ("The appropriate object of [the sting operation] ... is to reveal the criminal design .... A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the ... offense ...."). (37.) Id. at 448. This use of congressional intent has come under fire for an obvious shortcoming: there is seemingly no evidence in the law of this intent. The majority opinion fails to point to any statute or legislative history that would support this assertion. In a later case, Justice Frankfurter referred to this rationale as "sheer fiction": In these cases raising claims of entrapment, the only legislative intention that can with any show of reason be extracted from the statute is the intention to make criminal precisely the conduct in which the defendant has engaged. That conduct includes all the elements necessary to constitute criminality .... If he is to be relieved from the usual punitive consequences, it is on no account because he is innocent of the offense described. Sherman v. United States, 356 U.S. 369, 379-80 (1958) (Frankfurter, J., dissenting). (38.) United States v. Brown, 43 F.3d 618, 624 (11th Cir. 1995) ("[P]redisposition inquiry is a purely subjective one which asks the jury to consider the defendant's readiness and willingness to engage in the charged crime absent any conduct with the government's officers or agents."). (39.) Sorrells, 287 U.S. at 451. (40.) Id. ("The predisposition and criminal design of the defendant are relevant. But the issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent ....") (emphasis added). (41.) See United States v. Russell, 411 U.S. 423, 440 (1973) (Stewart, J., dissenting) ("In Sorrells v. United States, supra, and Sherman v. United States, supra, the Court took what might be called a 'subjective' approach to the defense of entrapment."). (42.) See id. at 454--55 (Roberts, J., concurring) (focusing on the conduct of the police). (43.) Id. (44.) Id. at 457 (Roberts, J., concurring) ("It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law."). (45.) Id. (46.) See People v. Barraza, 591 P.2d 947, 955 (Cal. 1979) (finding that a focus on the defendant's character inhibits courts from dealing with lawless law enforcement). This conception of the entrapment defense conceives it as similar to the exclusionary rule of the Fourth Amendment, designed as a prophylactic to prevent police misconduct. Anthony M. Dillof, Unraveling Unlawful Entrapment, 94 J. CRIM. L. & CRIMINOLOGY 827, 860 (2004). However, there has been considerable debate over whether this deterrent effect exists in practice. One criticism of the deterrence rationale argues that the entrapment defense is ineffective because the deterrent effect is indirect, as the punishment consists of a benefit to the defendant instead of a direct cost to the offender. Stevenson, Deterring Police, supra note 6, at 112-121. Stevenson also argues that this defense fails in attempting to deter rogue officers by setting criminals free, as these officers may be bad actors primarily because "doing justice" is not their primary goal. Therefore, to the extent that their harassment is punished only by the release of suspects, these officers may not experience any punishment whatsoever, Id. at 121-25. (47.) See Barraza, 591 P.2d at 955-56 (describing objective approach of entrapment analysis). (48.) See MODEL PENAL CODE [section] 2.13(1)(b) (2001); see also 18 PA. CONS. STAT. [section] 313(a)(2) (1998) (defining entrapment as situation where government actions "create a substantial risk that [the charged offense] will be committed by persons other than those who are ready to commit it"); see also infra note 50 and accompanying text. (49.) See, e.g., United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993) (requiring defendant to produce evidence of inducement). It should be noted, however, that the standard for satisfying this burden varies as some courts require only a minimal showing by the defendant, see, e.g., id. (requiring defendant to "produce more than a scintilla of evidence that the government induced him to commit the charged offense"), and others require a showing of inducement by a preponderance of the evidence, see, e.g., State v. Bates, 853 So. 2d 71, 74 (La. Ct. App. 2003) (requiring defendant to show inducement by a preponderance of the evidence). (50.) The Supreme Court of California states two principles that would generally constitute entrapment: (1) where the officer's actions "would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent," and (2) where police action "would make commission of the crime unusually attractive to a normally law-abiding person ...." Barraza, 591 P.2d at 955. This standard is a sort of contextualized "reasonable person" standard; the hypothetical "law-abiding person" is one who would not commit the offense absent an irregular inducement, as opposed to an individual who was "ready and willing" to engage in the activity independent of police intervention. Grossman v. State, 457 P.2d 226, 229 (Alaska 1969). Some have criticized the use of the "reasonable person" standard in this situation, noting that this provides little guidance in determining what elements of the circumstances surrounding the defendant's actions should be interpreted as part of his "situation" and what should be considered dispositional elements personal to the defendant. See generally Louis Michael Seidman, The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, 1981 SUP. CT. REV. 111 (1981) (examining the entrapment defense as a "weakness at the heart of [the] criminal justice system"). The Barraza court did not go very far in addressing this concern, though the court did exclude the defendant's willingness to engage in crime absent any additional pressures upon his will. Barraza, 591 P.2d at 955. "For the purposes of this test, we presume that [a reasonable person] would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully." Id. (51.) MODEL PENAL CODE [section] 2.13; see also 18 PA. CONS. STAT. [section] 313(a)(2). (52.) See United States v. Russell, 411 U.S. 423,446 (Stewart, J., dissenting) (calling predisposition "irrelevant" under an objective test). (53.) Barraza, 591 P.2d at 955-56 ("[U]nder this test such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant."). (54.) Accordingly, those found entrapped are considered not truly "guilty" within the meaning of the statute. Sorrells v. United States, 287 U.S. 435, 44849 (1932). (55.) United States v. Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002) ("In laying an evidentiary foundation for entrapment, the defendant bears the initial burden of production as to government inducement; once the defendant meets this burden, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime."). (56.) Sherman v. United States, 356 U.S. at 369, 372. (1958). (57.) Jacobson v. United States, 503 U.S. 540, 549 (1991) ("[T]he prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents."); see also United States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir. 1985) ("[T]he Government [must] prove beyond a reasonable doubt that the defendant was predisposed or that there was no Government inducement." (quoting United States v. Gunter, 741 F.2d 151, 153 (7th Cir. 1984))). (58.) United States v. Dion, 762 F.2d 674, 687-88 (8th Cir. 1985) (emphasis added) (citations and quotations omitted). (59.) See United States v. Poehlman, 217 F.3d 692, 698 (9th Cir. 2000) (reversing judgment of the trial court after finding the defendant was entitled to use entrapment defense because he was not predisposed). (60.) See id. at 702 (discussing the trial court's determination of predisposition and submission of his case to the jury). Under the subjective approach, the question of entrapment is treated similarly to questions of justification and excuse; the jury is given an instruction on entrapment and then decides whether the defense is applicable contemporaneously with deciding the general verdict. See id. at 699 ("The district court properly determined that the government was required to prove that Poehlman was not entrapped and gave an appropriate instruction."). (61.) MARCUS, supra note 5, at [section] 5.06; see also United States v. Russell, 411 U.S. 423,441 ("The determination of the lawfulness of the Government's conduct must be made ... by the trial judge, not the jury."). (62.) Russell, 411 U.S. at 441 (applying the objective approach to entrapment analysis and noting that "focusing on the defendant's innocence or predisposition has the direct effect of making what is permissible or impermissible police conduct depend upon the past record and propensities of the particular defendant ..."). (63.) See Sherman v. United States, 356 U.S. 369, 371 (1958) (explaining that the factual issue for the jury to decide at trial "was whether the informer had convinced an otherwise unwilling person to commit a criminal act or whether petitioner was already predisposed to commit the act and exhibited only the natural hesitancy of one acquainted with the narcotics trade"); id. at 377 ("The issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused."). (64.) See id. (65.) See, e.g., FED. R. EVID. 404(b) (providing that evidence of an individual's prior crimes and "bad acts" are not admissible to show a propensity to commit similar acts in the present case). The purpose of this ban is to prevent juries from assuming the individual's guilt for the charged act on the basis of prior criminality. FED. R. EVID. 404(b) advisory committee's note. However, this evidence is admissible for other purposes. FED. R. EVID. 404(b). The most common exceptions to the general 404(b) evidentiary bar are designated by the mnemonic "MIMIC": evidence can be introduced to show motive, intent, lack of mistake, intent, or common plan. See id. However, this list is not exclusive, Id. Assumedly, in the case of entrapment, prior acts evidence is allowed because the defendant is allowed to raise a defense of entrapment while maintaining his factual innocence of the crime under a plea of not guilty. See Sorrells v. United States, 287 U.S. 435,452 (1932) (holding that a plea of not guilty is not a bar to the entrapment defense). Therefore, a fact-finder could theoretically draw the inference that the defendant was predisposed to commit the crime and therefore cannot avail himself of the entrapment defense, yet find that the defendant did not actually commit the offense. However, the author is hard-pressed to imagine a situation where a lawyer would willingly do so, as the proposal of the entrapment defense would seemingly be an admission that the defendant committed the crime, though as the result of police action. (66.) See United States v. Navarro, 737 F.2d 625, 635 (7th Cir. 1984) (finding that government met its burden of "proving beyond a reasonable doubt that the defendants were predisposed to commit the offenses"). (67.) See United States v. Dion, 762 F.2d 674, 687-88 (8th Cir. 1985). (68.) See M. Bryan Schneider, Evidence, 56 WAYNE L. REV. 307, 336 (2010) (citing 1A JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW [section] 58.2 (Peter Tillers rev. ed. 1983)). As Schneider says: Unlike the other rules of limited admissibility, however, Rule 404(b) is not primarily grounded in concerns about the low probative value of other acts evidence. On the contrary, such evidence "is objectionable not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendency of the tribunal--whether judge or jury--is to give excessive weight to the [evidence]." Id. (69.) See, e.g., Navarro, 737 F.2d at 635 (allowing evidence of "prior involvement with narcotics transactions"); see also People v. Salazar, 672 N.E.2d 803, 809 (Ill. App. Ct. 1996) (question of predisposition to sell drugs includes consideration of "defendant's familiarity with drugs and willingness to accommodate the needs of drug users ... defendant's prior or current use of illegal drugs," and "defendant's engagement in a course of conduct involving similar offenses"). (70.) FED. R. EVID. 404(b). (71.) United States v. Crowder, 141 F.3d 1202, 1212 (D.C. Cir. 1998) (Tatel, J., dissenting) ("Evidence of defendants' prior bad acts 'only tend[s] to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that [the defendants] were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings.'" (quoting Boyd v. United States, 142 U.S. 450, 458 (1892))). (72.) See United States v. Brand, 467 F.3d 179, 199-201 (2d Cir. 2006) (discussing the use of prior crimes evidence to show predisposition under 404(b) in the context of a child pornography conviction). (73.) See, e.g., MD. CODE ANN., CRIM. LAW [section] 5-601 (2006) (possessing or administering a dangerous substance); id. at [section] 5-602 (manufacturing, distributing or possessing with intent to distribute); id. at [section] 5-603 (possessing the equipment to possess a dangerous substance); id. at [section] 5-607 (general penalty schedule); id. at [section] 5-608 (penalty schedule regarding narcotics); id. at [section] 5-609 (penalty schedule regarding hallucinogens); id. at [section] 5-612 (dealing large volumes of dangerous substances); id. at [section] 5-613 (drug kingpin statute); id. at [section] 5-614 (importation of dangerous substances); id. at [section] 5-617 (distributing false controlled substances); id. at [section] 5-619 (possession of drug paraphernalia); id. at [section] 5-620 (fraudulent possession of controlled paraphernalia). (74.) As one commentator notes, this problem of overbreadth emerges because of the "unfortunate" use of language referring to "innocence" and the "law-abiding person" in describing predisposition. See J. Gregory Deis, Note, Economics, Causation, and the Entrapment Defense, 2001 U. ILL. L. REV. 1207, 1237 (citing MARCUS, supra note 5). Where predisposition is meant to describe one's willingness to commit the charged crime, the use of this language creates the impression that the inquiry is meant to discern a general criminal disposition. See id. (explaining that the true inquiry should determine whether the defendant likely would have resisted "the ordinary temptations present in society that encourage persons to commit crimes"). Deis situates this problem as one underlying the entrapment defense in general, and not merely one within the context of drug crimes. Id. (75.) United States v. Batts, 573 F.2d 599, 603 (9th Cir. 1978) (citation omitted); see also United States v. Segovia, 576 F.2d 251, 252-53 (9th Cir. 1978) (allowing evidence of selling marijuana to show disposition to sell cocaine); United States v. Marshall, 532 F.2d 1279, 1283-84 (9th Cir. 1976) (allowing evidence of selling cocaine to show disposition to sell heroin). (76.) People v. Salazar, 672 N.E.2d 803, 809 (Ill. App. Ct. 1996) (evidence of prior use of drugs allowed to show predisposition towards sale); State v. Goldman, 389 S.E.2d 281,285 (N.C. Ct. App. 1990) (evidence of cocaine and LSD use admissible to show predisposition to possess LSD and cocaine with the intent to sell, selling LSD and cocaine, and trafficking LSD). It should be noted that there may be time limitations on the evidence allowed to show predisposition; at the very least, where the only evidence of predisposition is prior illegal action taking place in the distant past, the court may find that predisposition does not exist as a matter of law. See Sherman v. United States, 356 U.S. 369, 375 (1958) (finding nine-year-old sales conviction and five-year-old possession conviction insufficient to prove disposition to sell narcotics). (77.) However, this cannot be the case unless we believe that the millions of Americans who have recently used drugs, not to mention those who have used in the past, would willingly jump at the opportunity to get in on the supply side of the drug market. A government study of recent drug use estimates that 20.8 million people above the age of eighteen use illicit drugs in one year alone. SUBSTANCE ABUSE & MENTAL HEALTH SERV. ADMIN., RESULTS FROM THE 2009 NATIONAL SURVEY ON DRUG USE AND HEALTH: VOLUME 1. SUMMARY OF NATIONAL FINDINGS 1 (2010) [hereinafter SUBSTANCE ABUSE & MENTAL HEALTH RESULTS], http://www.oas.samhsa.gov/NSDUH/2k9NSDUH/MH/2K9MHResults.pdf. Since 2000, roughly eleven percent of marijuana arrests have been for charges of drug sales or trafficking, with the vast majority of offenders arrested for simple possession. Crime, DRUGWARFACTS.ORG, http://www.drugwarfacts.org/cms/Crime#Total (last visited Oct. 10, 2011). That only a slim minority of arrested marijuana users are arrested for supply-side offenses suggests that most individuals using drugs are not engaging in sales under normal circumstances, despite their access to illegal substances. (78.) United States v. Russell, 411 U.S. 423, 440 (1973). This requires the jury to determine whether the commission of a crime was motivated by factors personal to the defendant (predisposition) or by a situation that was forced upon the defendant by the government (inducement). See Kevin A. Smith, Psychology, Factfinding, and Entrapment, 103 MICH. L. REV. 759, 765 (2005) ("Implicit in both the entrapment defense and classic attribution theory is the understanding that behavior is produced by a combination of an individual's personal characteristics (his disposition) and his environment (the situation)."). (79.) Smith, supra note 78, at 766. This phenomenon is known as the fundamental attribution error. As Smith states: All of an individual's actions fall along a causal spectrum. On one end lie those actions that are completely situational--under the circumstances, anybody would have behaved the same way. At the other lie those actions that, under the circumstances, differ from those that most people would take under the same circumstances. We attribute this deviation from the norm to the unique disposition of the actor. Relative to the ordinary man, the actor had a "preference for" or a "disposition toward" the particular act. Id. at 765. The error occurs where an individual attempts to determine where on this spectrum another individual's action falls; in doing so, there is a general tendency to attribute one's actions to his character, and to infer corresponding personality traits to confirm the attribution. Id. at 775. This attribution overlooks situational factors which could similarly explain the action. Id. This tendency to overlook situational factors persists even in the face of obvious evidence of such pressures. One example of this involved Stanley Milgram's obedience tests, where a majority of average American citizens administered what they believed was a life-threatening shock to another individual, with the only pressure to do so resulting from the belief that the shock was part of a scientific experiment and from the supervision and direction of the experiment's administrator. Id. at 780. Over two-thirds of individuals complied with the order to give this shock. Id. In this case, it seems clear that the individual's behavior should not be attributed to his disposition, at least if we are to assume that a normally disposed person would not administer such a shock. Id. Later groups of subjects were informed about the experiment and asked to describe the characteristics of the subjects administering the ultimate shock. Id. Even subjects who were aware of the results of the experiment--that administering this shock was the modal response--generally attributed a cold, harsh disposition to these subjects. Id. (80.) Id. at 782-86 (discussing the correlation between overconfidence in one's belief in what a normal actor would do and "extreme dispositional attributions"). Not surprisingly, though there is a correlation between the confidence of an actor with his prediction of how an individual will act and his accuracy in making this prediction, the rate of increase in confidence is considerably higher than the rate of increase in accuracy. See id. at 782 (noting that subjects displayed overconfidence for eighty to ninety-two percent of the total predictions given). (81.) See id. at 775 ("[F]actfinders may infer that the defendant was predisposed to commit the offense merely from the fact that he did so in response to the police inducement."). (82.) Id. at 770. One example of this can be seen in the "Good Samaritan" experiment. In this experiment, a series of seminarians were told to prepare a short talk to be delivered a short distance away, then were divided into three groups: the first group was informed that there was plenty of time before they needed to give the talk, the second was told that they were a few minutes late, and the third group was informed they were extremely late and needed to hurry. Id. at 767-70. En route, the seminarians encountered a woman whose car had broken down, with the purpose of the experiment being determining to what extent the situational factor of delay affected their willingness to help. Id. The result was a substantial disparity in helping behavior that correlated with the delay, demonstrating the influence of this situational factor on the actor's behavior. Id. In addition, a second set of participants, called "observers," were asked whether they believed there would be a difference in behavior, what the level of difference would be, and what would cause this difference. Id. The observers substantially underestimated the disparity. Id. In addition, predicted differences were largely attributed to the religiosity of the participants. Id. These tendencies existed even where observers were informed about the study and its purpose prior to responding. Id. (83.) Id. (84.) Id. (85.) Sherman v. United States, 356 U.S. 369, 372 (1958). (86.) Judge Posner views this as the distinction that gives rise to entrapment: "Police inducements that merely affect the timing and not the level of criminal activity are socially productive; those that increase the crime level are not." Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1220 (1985). (87.) See Sherman, 356 U.S. at 372 (contrasting entrapment with "merely 'afford[ing] opportunities or facilities for the commission of the offense'" (quoting Sorrells v. United States, 287 U.S. 435, 441 (1932))). (88.) See Jacobson v. United States, 503 U.S. 540, 553 (1992) (stating predisposition of defendant to commit crime must be present "prior to the Government acts intended to create predisposition"); United States v. Manzella, 791 F.2d 1263, 1269 (7th Cir. 1986) ("'[E]ntrapment' means the government's inducing a person to commit a crime who was not predisposed to commit it--in other words, who would not have committed [the offense] but for the particular inducement that the government held out.") (emphasis added). (89.) The subjective approach to entrapment, in creating this moral distinction, in some ways acts as a form of excuse. It allows a defense for individuals who have admittedly committed an offense based on their perceived lack of moral culpability due to acquiescence to police coercion. See Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 318-19 (1996) (defining justification defenses as those protecting "acts that produce morally preferred states of affairs" and excuse defenses as "identify[ing] circumstances in which an act is wrongful but the actor blameless"). The inability to exert free choice in individuals with volitional disorders could similarly be perceived as an argument for the creation of an excuse defense, articulating a reason for finding these actors less morally blameworthy. However, I do not make this argument here, only noting the existence of volitional disorders in drug case defendants as a means of rejecting the subjective doctrine's creation of an artificial moral boundary between those currently found entrapped and those found predisposed. (90.) Cf. People v. Decina, 138 N.E.2d 799, 803-04 (N.Y. 1956) (upholding indictment of defendant for criminal negligence where driver made the "conscious choice" to drive despite known history of epilepsy). (91.) See Kevin W. Saunders, Voluntary Acts and the Criminal Law: Justifying Culpability Based on the Existence of Volition, 49 U. PITT. L. REV. 443, 455-56 (1988) (describing the view of voluntary conduct as conduct the agent believes himself to be engaged in). (92.) Wolfgang Prinz et al., Toward a Science of Volition, in DISORDERS OF VOLITION 2-3 (Natalie Sebanz & Wolfgang Prinz, eds., 2006) (emphasis omitted). (93.) Id. at 2 (emphasis omitted). (94.) See Antoine Bechara, Broken Willpower." Impaired Mechanisms of Decision Making and Impulse Control in Substance Abusers, in DISORDERS OF VOLITION, supra note 92, at 399, 400 [hereinafter Bechara, Broken Willpower] (describing two separate but interacting neural systems, an impulsive neural system for signaling immediate prospects of an option and a reflective system that considers the future prospects of an option). This distinction is not unknown within the criminal law. See Laura Reider, Toward a New Test for the Insanity Defense: Incorporating the Discoveries of Neuroscience into Moral and Legal Theories, 46 UCLA L. REV. 289, 303-12 (1998). In the insanity context, there are two different kinds of insanity defenses. See id. (describing the two). The majority test, known as the M'Naghten test, focuses on the inability for an individual to understand the wrongness of his actions, indicating malfunctions in his ability to reason properly. Id. Where this form of insanity defense is granted, it is affording a defense based on breakdowns within the reflective system. Id. A competing test is the "irresistible impulse" test, which provides a defense where a mental disease prevents a defendant from being able to exercise control over his own actions, signaling problems within the impulsive system. Id. The MODEL PENAL CODE combines the two, allowing a defense where either the impulsive or the reflective systems are malfunctioning. Id. (95.) Bechara, Broken Willpower, supra note 94, at 404. Bechara states that these two processes cause physiological reactions in the subject in response to two stimuli: primary inducers, those present in the immediate environment, trigger the impulsive system while secondary inducers, thoughts or memories of past primary inducers, trigger the reflective system. See Antoine Bechara, Risky Business: Emotion, Decision-Making, and Addiction, 19 J. GAMBLING STUD. 23, 26-27 (2003) [hereinafter Bechara, Risky Business] (contrasting the two processes and describing the methods in which they operate). (96.) See Antoine Bechara, Decision Making, Impulse Control and Loss of Willpower to Resist Drugs: a Neurocognitive Perspective, 8 NATURE NEUROSCIENCE 1458, 1460-61 (2005) [hereinafter Bechara, Decision Making]. (97.) Bechara, Broken Willpower, supra note 94, at 406-07. (98.) See id. at 406-07 (discussing impulse control and its development through knowledge and learning). (99.) Id. at 408. (100.) See Bechara, Decision Making, supra note 96, at 1461. (101.) Nora D. Volkow & Ting-Kai Li, Drug Addiction: The Neurobiology of Behaviour Gone Awry, 5 NATURE REVIEWS NEUROSCIENCE 963, 963-64 (2004). (102.) Id. at 964. (103.) See Antoine Bechara & Hanna Damasio, Decision-Making and Addiction (Part 1): Impaired Activation of Somatic States in Substance Dependent Individuals When Pondering Decisions with Negative Future Consequences, 40 NEUROPSYCHOLOGIA 1675, 1685-87 (2002) (comparing decision-making characteristics of substance dependent individuals with individuals diagnosed with VmPFC disorders); see also Steven Grant et al., Drug Abusers Show Impaired Performance in a Laboratory Test of Decision Making, 38 NEUROPSYCHOLOGIA 1180, 1185 (2000) (citing such evidence as a "smaller [volume] of grey matter in the pre-frontal lobe" in drug abusers than control subjects, "differences in metabolic activity in the VmPFC when compared with matched controls," and a "high degree of co-morbidity" between substance abuse and disinhibitory behavioral disorders); Bechara, Risky Business, supra note 95, at 25 (noting that patients with VmPFC damage "develop severe impairments in personal and social decision-making, in spite of otherwise largely preserved intellectual abilities"). (104.) Grant, supra note 103, at 1184 (describing addictive behavior as including the "persistence of a positively rewarded behavior despite adverse consequences"). (105.) See id. at 1183-84; Bechara & Damasio, supra note 103, at 1680. Both of these papers dealt with an experiment known as the "gambling test." Grant, supra note 103, at 1183-84; Bechara & Damasio, supra note 103, at 1680. Subjects were presented with two decks and told to draw cards from the deck of their choosing. Each card would contain a monetary amount, indicating either a gain or a loss to the subject. Id. One deck had cards with both large gains and large losses, structured so that continually drawing from this deck would result in a net loss over time. Id. The other deck had more moderate gains and more moderate losses, with continuous drawing resulting in a net gain over time. Id. Generally, the control groups would reject the "losing" decks, gaining a net positive score over the course of the experiment. Id. However, members of the substance dependent group were considerably more likely to continue drawing from the "losing" decks and finish with a net loss. Id. The differences between the control subjects and the substance-dependent subjects did not end with behavior; physiological responses related to the internalization of punishment and conditioning occurred less frequently in the substance-dependent group. Id. at 1686. (106.) See Gregory J. Madden et al., Impulsive and Self-Control Choices in Opioid-Dependent Patients and Non-Drug Using Control Participants: Drug and Monetary Rewards, 5 EXPERIMENTAL & CLINICAL PSYCHOPHARMACOLOGY 256, 259 (1997). (107.) In 2004, forty-five percent of federal prisoners and fifty-three percent of state prisoners met the criteria for "drug dependence and abuse" established by the Diagnostic and Statistical Manual of Mental Disorders. CHRISTOPHER J. MUMOLA & JENNIFER C. KARBERG, U.S. DEP'T OF JUSTICE, DRUG USE AND DEPENDENCE, STATE AND FEDERAL PRISONERS, 2004, at 1 (2006), http://bjs.ojp.usdoj.gov/content/pub/pdf/dudsfp04.pdf. In addition, over half of all prisoners self-reported as having used drugs within the month preceding their offenses. Id. Of this self-reporting group, 69.2% of state prisoners and 64.3% of federal prisoners attested to using drugs "regularly," or at least once a week for at least a month. Id. at 2. Though this data does not indicate what the abuse rates are for prisoners committing particular offenses, see id. at 4, one could guess that the abuse rates for those incarcerated for drug crimes would be higher than those found in the general prison population due to regular exposure to addictive substances. The only information provided specifically about drug offenders is that roughly 16.3% of state prisoners and 15.3% of federal prisoners have been incarcerated on prior drug offenses, though criminal history for a large number of the prisoners was unknown. Id. at 4. (108.) See SUBSTANCE ABUSE & MENTAL HEALTH RESULTS, supra note 77 (discussing statistics on drug use among the general public); see also Joseph A. Colquitt, Rethinking Entrapment, 41 AM. CRIM. L. REV. 1389, 1397-98 (2004) (detailing several different kinds of sting operations, including the common "buy-bust" and "sell-bust" operations). (109.) FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES 2009, at tbl.29 (2010), available at http://www2.fbi.gov/ucr/cius2009/data/table_29.html. (110.) Id. Slightly less than one-fifth of these arrests involved the selling or producing of drugs. Id. (111.) See LISA ANNE ZILNEY, DRUGS: POLICY, SOCIAL COSTS, CRIME, AND JUSTICE 228-29 (2011) (describing a variety of detainment methods used by police); see also Monsy Alvarado, Update: Hackensack Drug Bust Nets 25 Arrests, NORTHJERSEY.COM (Nov. 18, 2010, 8:06 PM), http://www.northjersey.com/news/ crime_courts/111810_Hackensack_drug_bust_nets_25_arrests.html (describing an infiltration method used by police). (112.) A "knock and talk" occurs where law enforcement goes to the home of a suspected offender, knocks on the door, and requests permission to enter the home in an effort to elicit incriminating evidence from the user. ZILNEY, supra note 111, at 228. (113.) An "undercover buy" involves a government agent approaching a drug dealer and purchasing drugs. The dealer is then arrested. Id. at 229. (114.) The "reverse sting" occurs where a government agent acts as a drug dealer, and those who transact with the agent are arrested. Id. (115.) See, e.g., Alvarado, supra note 111; Lou Michel, Drug Bust Leads to Charges Against 29, BUFFALO NEWS (Oct. 28, 2010), http://www.buffalonews.com/city/police-courts/police-blotter/ article234023.ece; Mike Morris, 45 Charged in Mexican Drug Ring, ATLANTA NEWS (Nov. 4, 2010), http://www.ajc.com/news/clayton/45-charged-in-mexican-719322.html. (116.) See Elizabeth E. Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 STAN. L. REV. 155, 162-63 (2009) ("If these crimes are to be prosecuted successfully, then the police must infiltrate criminal ranks or play willing victims."). Undercover operations can be largely divided into three categories: (1) surveillance, which seeks to gather information on criminal activity; (2) prevention, which attempts to stop an offense from taking place; and (3) facilitation, which encourages the commission of an offense in order to achieve a conviction. Id. at 163-65. (117.) See Colquitt, supra note 108, at 1397 (stating that undercover operations "almost invariably risk entrapment because of the amount of discretion they afford police officers"). (118.) MARCUS, supra note 5, at [section][section] 4.04C, 4.05B. (119.) Cf. FED. R. CRIM. P. 31 (providing procedures for submission of a jury verdict, but no procedures for specific findings by jury). This general verdict provides no indication of the specific line between acceptable and unacceptable police action, and in fact, may be guided by factors unrelated to the police conduct at issue, such as disgust for the defendant created by the introduction of his criminal record. See Colquitt, supra note 108, at 1426; supra Part II (examining how certain types of evidence used to show predisposition introduce prejudice against the defendant's case). (120.) Cf. New York v. Belton, 453 U.S. 454, 458 (1981) (noting, in the context of Fourth Amendment searches, that a defendant's rights are secure only "if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement" (quoting Wayne R. LaFave, "Case-By-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 SUP. CT. REV. 127, 142)). (121.) See United States v. Payne, 962 F.2d 1228, 1231-32 (6th Cir. 1992) (recognizing a sting operation where defendant's identity was unknown, and noting that a general characteristic of sting operations is that "new conspirators, who are at first unknown to the government, may be uncovered ..."). (122.) See United States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir. 1985) (determining predisposition requires analyzing five factors, including character, reputation, and criminal record). (123.) See Hay, supra note 1, at 390-91 (posing as participants or confederates is a common police tactic). (124.) See Carlon, supra note 5, at 1125-26 ("The proper sting, then, is an investigative tactic used to infiltrate or identify ongoing or imminent criminal activities.... Entrapment can be seen as ... a false positive. This, of course, is wasteful, but it is also an abuse of the investigative technique."). (125.) See supra text accompanying notes 75-77 (findings suggest that drug crimes are viewed interchangeably). (126.) To illustrate, there is no assessment of the officer's causation of a large-scale drug offense (such as trafficking) where an individual is found likely to commit a minimal offense (such as small-time possession). (127.) See Sherman v. United States, 356 U.S. 369, 383 (1958) (Frankfurter, J., concurring) (stating that the possibility that a defendant would not have committed a specific crime unless induced cannot be ignored). (128.) Related to this is the notion of "sentencing entrapment," where an individual has already engaged in a crime involving the undercover officer, but the officer then changes specifics about the situation in a way that would trigger stricter sentencing provisions. One example would be to take an individual who had already agreed to engage in a drug transaction with an undercover officer, and to convince him to buy a slightly higher quantity of the drug in order to trigger a higher mandatory sentencing level. See Dru Stevenson, Entrapment by Numbers, 16 U. FLA. J. L. & PUB. POL'Y 1, 39 (2005). One incentive for doing this would be to attain greater leverage against the defendant, with an eye towards either getting a guilty plea or "flipping" him to gain information on his cohorts. (129.) See Colquitt, supra note 108, at 1418-19 (noting that funding agencies largely assess police effectiveness based on reduced crime rates or arrest numbers). (130.) See id. at 1421 (noting that high arrest rates result in higher numbers of convictions because of the prevalence of plea bargaining). The incentive presented to a defendant to plead out is considerably higher where the defendant knows that he is likely to be found "predisposed" and will therefore be denied an entrapment defense. See id. (131.) The final piece of this relates to the "broken windows" idea of policing. The belief is that vigorous policing and punishment of all criminals, regardless of offense, will result in lower crime rates through the creation of a strong deterrent effect towards criminality in general and the incarceration of all bad actors in the community. Id. at 1421-22. (132.) Cf. Neal K. Katyal, Conspiracy Theory, 112 YALE L.J. 1307, 1328-32, 1339-40 (2003) (discussing the information extraction function of conspiracy statutes). In investigating criminal networks, one of the primary tools used by police is "flipping," where charged defendants are willing to exchange information about their cohorts and their overall criminal enterprise in exchange for more lenient sentencing. Id. at 1340. Katyal argues that conspiracy statutes create a greater incentive for flipping by adding the threat of additional sanctions to those who refuse to cooperate. Id. ("Because conspiracy law has a five-year term, it may provide a prosecutor with more bargaining power than will other crimes, particularly when the substantive crimes most visible to law enforcement carry the lowest penalties."). However, this is not exclusive to conspiracy, as incentives towards cooperation can exist wherever prosecutors possess discretion regarding charges: the possibility of being sentenced to a crime with a lesser maximum penalty gives the defendant reason to consider giving police information about his organization. (133.) See, e.g., Stevenson, Deterring Police, supra note 6, at 73 (describing "purported purpose" of objective test as "to deter police misconduct"). (134.) Id. at 113-20. (135.) Id. at 120-24. (136.) See supra text accompanying notes 50-53 (noting that the real question is how a normal law-abiding citizen would be affected by government's actions). (137.) See supra Part II (examining how certain types of evidence used to show predisposition may introduce prejudice against the defendant's case). (138.) See supra notes 78-84 and accompanying text (discussing process by which jury determines predisposition). (139.) See England v. State, 887 S.W.2d 902, 914 (Tex. Crim. App. 1994) (holding evidence of "other crimes, wrongs, or acts" not relevant to an objective inquiry); People v. Barraza, 591 P.2d 947, 954 (Cal. 1979) (stating that subjective approach's use of predisposition is "misplaced and impairs our courts in their task of assuring the lawfulness of law enforcement activity"). Some aspects of the defendant's conduct may be relevant to an assessment of the officer's conduct, such as where the individual initially resisted the officer's inducements for some time and only relented after considerable pressure. England, 887 S.W.2d at 914 ("[E]ven under a purely objective test for entrapment, evidence of other 'transactions' between the same parties leading up to the alleged entrapment may be admissible as 'context' evidence."). However, as the question of entrapment is generally a question of law for the judge, these aspects of the defendant's case will not be put before the jury and therefore will not taint the defendant's case-in-chief in the event the entrapment claim is denied. MARCUS, supra note 5, at [section] 5.06. For example, imagine a case where officers planned a drug sting, roamed an area, noticed that a drug sale was occurring, and purchased marijuana from the dealer in that transaction. The dealer had a prior conviction for the possession of marijuana. See Tate v. State, 912 S.W.2d 919 (Mo. 2005). Under a subjective analysis, the evidence of the prior conviction would likely be admitted as evidence of predisposition. Id. at 925-26 (finding that prior convictions of defendants are admissible under predisposition claim, but there must be balancing of "probative value" and "prejudicial harm" under Mississippi's equivalent of FED. R. EVID. 403). Under an objective analysis, the evidence of the prior conviction would be excluded as irrelevant in determining the reasonableness of the officers' conduct. England, 887 S.W.2d at 914 (stating that prior bad acts are irrelevant to objective analysis). However, contextual elements of the sale, such as what led the officer to the particular defendant, whether the target resisted the officer's attempts to make the sale, or whether there were any prior transactions between the officer and the target, would be admissible before the judge in determining whether the officer's total conduct would have been enough to create a substantial risk of increased criminality under the circumstances. See, e.g., Grossman v. State, 457 P.2d 226, 230 (Alaska 1969) ("The transactions leading up to the offense, the interaction between the officer and the defendant, and the defendant's response to the inducements of the officer are all to he considered in judging what the effect of the officer's conduct would be on a normal person."). These factors would be considered only by the judge in deciding a question of law, and therefore would not be put before the jury. (140.) The predisposition prong of the subjective approach is an attempt to avoid this concern. See United States v. Manzella, 791 F.2d 1263, 1269 (7th Cir. 1986) (explaining that inducement is appropriate where it "merely affects the timing of the offense ... taking out of circulation a person who, had he not been caught, would have committed the same crime, only in different circumstances," but is not appropriate where "the inducement was so great that it tempted the person to commit a crime that he would not otherwise have committed"). (141.) Sherman v. United States, 356 U.S. 369, 379-80 (1958) (Frankfurter, J., concurring). (142.) Take, for example, the notion of "readiness." Simply assuming that the individual was predisposed does not necessarily determine whether the individual was in any position to commit the charged crime without the officer's help. Where the entrapment defense turns simply on a notion of predisposition (or "willingness" to commit a crime, which it would appear that the introduction of prior criminal acts would aim to prove), predisposition is overinclusive of those people who are "predisposed" towards commission of crimes, but would not have had the means of doing so absent police intervention. See United States v. Hollingsworth, 27 F.3d 1196, 1200 (7th Cir. 1994). As Judge Posner stated in Hollingsworth: Predisposition is not a purely mental state, the state of being willing to swallow the government's bait. It has positional as well as dispositional force.... The defendant must be so situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so; only then does a sting or other arranged crime take a dangerous person out of circulation. Id. However, Judge Posner errs slightly in his discussion of the notion of readiness, noting perfunctorily that drug addicts have the ready means to become drug dealers. Id. This statement is extremely oversimplified, as it does not account for the type or amount of drug in question; a small-time marijuana user is unlikely to have the ready means of becoming a heroin trafficker on his own without substantial additional training. Posner's analysis, while limiting the overreach of the predisposition analysis, still leaves the predisposition prong as extremely overinclusive. (143.) See supra notes 100-04 and accompanying text (discussing drug use as cause of lack of volition). (144.) NAT'L INST. ON DRUG ABUSE, TREATMENT STATISTICS 1 (2011), http://www.drugabuse.gov/PDF/InfoFacts/TreatmentStats.pdf. (145.) Id. (146.) See supra notes 76-77 and accompanying text (discussing courts' tendencies to allow evidence of prior drug use to be used as evidence of predisposition to sell drugs). (147.) See Sorrells v. United States, 287 U.S. 435, 452 (1932). (148.) See supra Part III (examining drug users' lack of volition). (149.) See supra notes 76-77 and accompanying text (discussing courts' tendencies to allow evidence of prior drug use to show predisposition to sell drugs). (150.) MODEL PENAL CODE [section] 2.13(1)(b) (2001); United States v. Russell, 411 U.S. 423, 445 (1973) (Stewart, J., dissenting) ("[W]hen [police] conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then--regardless of the character or propensities of the particular person induced--I think entrapment has occurred.") (emphasis added). (151.) Russell, 411 U.S. at 445. (152.) See Pezzella v. State, 513 So. 2d 1328, 1330 (Fla. Dist. Ct. App. 1987) (explaining defendant's status as a quaalude addict must be included as part of the objective analysis). The fact that the officer knows the individual to be a drug addict is key, as the addiction is only relevant to the extent that it bears on the reasonableness of the officer's conduct. Id. Where the officer is unaware of the drug addiction, and therefore could not be said to be targeting drug addicts specifically, the addiction has no role in the objective analysis. Id. (finding inducement because the "informant knew the defendant was a quaalude addict and used this information to induce the defendant's participation in the drug deal"). (153.) The difference between the two approaches becomes clearer when considering a concrete situation. Assume that an undercover officer offers a known drug addict the opportunity to sell a quantity of drugs, with a few doses of the drugs as his payment. See id. Under the subjective approach, the previous drug use leading to the defendant's addiction would be sufficient evidence of his predisposition to engage in drug-related crime, resulting in the denial of his entrapment defense regardless of whether he had any history of actually selling drugs. See supra note 76 (citing examples of cases in which the defendant was denied the availability of the entrapment defense because evidence of prior drug possession was used to support predisposition to sell drugs). Under the objective approach, the question is whether the average law-abiding individual in the defendant's shoes--which may include his status as an addict--would have been induced into committing a crime he would not otherwise commit. Here, the size of the inducement is large enough to create a substantial risk of inducement, and an entrapment defense is available. Pezzella, 513 So. 2d at 1330 (finding that defendant was entrapped as a matter of law in the fact pattern provided). (154.) See supra Part IV (addressing the individual nature of the subjective approach). (155.) U.S. DEP'T OF HEALTH & HUMAN SERVS., SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., 2007 NATIONAL SURVEY ON DRUG USE AND HEALTH, APPENDIX G: SELECTED PREVALENCE TABLES G.1-G.2, available at http://oas.samhsa.gov/nsduh/2k7nsduh/AppG.htm. (156.) Id. at G.3-G.4. This means that at any given moment, substantial percentages of the general public are active illegal drug users and therefore potential criminal defendants. (157.) William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 791 (2006) ("[P]olice discretion matters a great deal when it comes to drug crime. Illegal drugs are scattered through the population. Whom the police catch depends on where they look. Where they look is largely up to them."). (158.) One example of this is the "reverse sting," where officers sell or provide illegal materials, then arrest the buyers. See Joh, supra note 116, at 166 ("In variations of 'reverse stings,' undercover officers may provide the illegal drugs themselves, the chemicals necessary for drug manufacture, or the 'buy' money to the suspects."). (159.) Michal Tamir, Racial Profiling: Who Is the Executioner and Does He Have a Face?, 15 TEX. HISP. J.L. & POL'Y 71, 85 (2009) (noting that large amounts of discretion can lead to "selective enforcement"). (160.) The argument that expanded police discretion creates an opportunity for discriminatory enforcement has been made often in the Fourth Amendment context. See Kevin R. Johnson, How Racial Profiling Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 GEO. L.J. 1005, 1066-70 (2010) (arguing that the sanctioning of pretextual stops effectively "immunize[s] police from any challenges for race-based law enforcement conduct"); Tracey Maclin, Terry v. Ohio's Fourth Amendment Legacy: Black Men and Police Discretion, 72 ST. JOHN'S L. REX,. 1271, 1310-12 (1998) (arguing that the use of a lesser "reasonable suspicion" standard for frisks instead of a normal probable cause standard created an opportunity for discrimination against African-Americans). (161.) See NAT'L INST. ON DRUG ABUSE, DRUG USE AMONG RACIAL/ETHNIC MINORITIES 34 (3d ed. 2003) (placing rate of illegal drug use within any past month for both blacks and whites at between six and seven percent). (162.) See Kevin R. Johnson, Taking the "Garbage" Out in Tulia, Texas: The Taboo on Black-White Romance and Racial Profiling in the "War on Drugs", 2007 WIS. L. REV. 283, 308-11 (describing disparate impact of policing practices on minorities). In one extreme example, a sting operation in Tulia, Texas led to the charging of roughly twenty percent of the African-American population. Id. at 284. The sting was designed by a corrupt officer who testified falsely about selling drugs to the charged individuals. Id. Ultimately, the defendants were vindicated, but only after an initial conviction. Id. at 287-88. (163.) See, e.g., Commonwealth v. Lucci, 662 A.2d 1, 4 (Pa. Super. Ct. 1995) (describing police operation that pressured an individual in a treatment program to provide drugs to an undercover agent). (164.) See supra Part IV (discussing the ability of police to target former drug users). (165.) See supra note 76 (citing a number of cases in which finding of predisposition resulted in denial of entrapment defense). (166.) An interesting question that has gone untouched in entrapment doctrine is how the prevalence of illegal drug use, particularly marijuana use, among the general population should affect the perception of the "average law-abiding citizen." Where roughly half the population has broken drug laws, it would appear that the average citizen will break these laws at some point, meaning that the average citizen is somewhat less "law-abiding" than is generally assumed. However, it appears that no case has addressed this issue. (167.) See England v. State, 887 S.W.2d 902, 910 (Tex. Crim. App. 1994) (asserting that the use of a subjective analysis causes police misconduct to go unchecked "because in the particular instance it might be inferred, because of the predisposition of the accused, that the improper persuasion was not the real impetus for the offense"). (168.) See, e.g., SUSAN E. MARTIN & LAWRENCE W. SHERMAN, CATCHING CAREER CRIMINALS: THE WASHINGTON, DC, REPEAT OFFENDER PROJECT 20 (1986), http://www.policefoundation.org/pdf/CatchingCareerCriminals.pdf (stating that sting operations "using a variety of unorthodox tactics gives officers an enormous amount of discretion ... [creating an] opportunity to harass, entrap, and otherwise violate a citizen's rights"). (169.) See Sherman v. United States, 356 U.S. 369, 383 (1958) (Frankfurter, J., concurring) (stating that the possibility that a defendant would not have committed a specific crime unless induced cannot be ignored). (170.) See id. (171.) MODEL PENAL CODE [section] 2.13(1)(b) (2001). (172.) State v. Sellers, 875 P.2d 400, 403 (N.M. 1994) (explaining that an objective defense focuses on "improper inducements"). (173.) See People v. Wisneski, 292 N.W.2d 196, 199 (Mich. Ct. App. 1980) ("Police encouragement of an agent's use of sex to induce one who is unwilling and unready to commit a crime constitutes entrapment."). The Wisneski court's use of the "unwilling and unready" formulation at first blush may appear to be an instance of the predisposition analysis masquerading as part of the objective test. However, the Wisneski court used elements of the defendant's conduct as considerations bearing on whether the police officer's conduct was excessive under the circumstances; in essence, where police attempts to induce criminal activity continue despite the protests of the target, these actions in total would be more likely to draw the average law-abiding citizen into criminality. Id. at 198-99. (174.) See Commonwealth v. Lucci, 662 A.2d 1, 8 (Pa. Super. Ct. 1995) (finding entrapment where a police informant targeted an individual recently discharged from drug treatment facility). As Lucci stated: We do not decide today that the police may never approach a person who has recently been released from a drug rehabilitation program.... All we decide today is that, based upon the uncontroverted testimony at trial on the operative facts of this case, appellant was entrapped as a matter of law where: 1) a former very close friend; 2) appealing to the bonds of friendship and the sympathy engendered by the alleged impending death of his mother; 3) and claiming that he, himself, had been through rehabilitation and was now "clean"; 4) approached appellant repeatedly about selling drugs in exchange for which appellant could have a "free high"; 5) all the while knowing that appellant was just out of rehabilitation and that his family was doing everything in its power to help him remain drug-free. Id. (175.) See MODEL PENAL CODE [section] 2.13(1)(b) (providing an entrapment defense based on the conduct's hypothetical effect on the average person with no mention of the individual's predisposition). (176.) See People v. Barraza, 591 P.2d 947, 955-56 (Cal. 1979) (stating considerations relevant to the objective approach include "the transactions preceding the offense, the suspect's response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission"); Grossman v. State, 457 P.2d 226, 230 (Alaska 1969) ("The transactions leading up to the offense, the interaction between the officer and the defendant, and the defendant's response to the inducements of the officer are all to be considered in judging what the effect of the officer's conduct would be on a normal person."). The officer's knowledge of specific characteristics of the defendant that may create particular susceptibility--such as the defendant's status as a former addict--can also be considered as part of this assessment. (177.) Barraza, 591 P.2d at 956 ("[U]nder this test such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant."). (178.) See Wisneski, 292 N.W.2d at 198-99 (Mich. App. Ct. 1980) (finding police conduct "reprehensible under the circumstances" where officer used sexual acts to induce a target who initially refused to provide a false prescription). (179.) Though the objective doctrine does not explicitly prevent against racial discrimination, the use of a universal standard limiting police excess would have the salutary effect of preventing all excessive operations that target minority communities. This stands in contrast to the subjective doctrine, which allowed discriminatory operations to continue wherever defendants were found "predisposed." In areas where drug use was concentrated, this effectively allowed police to act as they pleased with little threat of a valid entrapment defense. As a result, the objective entrapment's removal of the predisposition shield prevents officers from relying on a belief that the defendant will be predisposed in designing discriminatory and excessive operations. However, it should be noted that the same logic allowing a defense where the officer knew the defendant's past addiction made him particularly susceptible to an inducement would afford some defense against economic discrimination, where the officer knew that the defendant was in dire economic need and would respond particularly to a financial inducement. (180.) Though the data set used was limited, given that only six states were surveyed and the entrapment defense in general occurs in only a small minority of cases, a survey of trial court judges indicated that the success of the subjective entrapment defense is higher than that of the objective defense. See Stephen G. Valdes, Frequency and Success: An Empirical Study of Criminal Law Defenses, Federal Constitutional Evidentiary Claims, and Plea Negotiations, 153 U. PA. L. REV. 1709, 1715-17 (2005). This suggests that in areas with the subjective defense, police are less able to plan sting operations that are not likely to entrap innocents. However, this should not be construed as indicating that the subjective defense is necessarily more defendant-friendly, as the presence of the predisposition prong and the potential for introduction of "bad crimes" evidence may prevent a substantial number of losing entrapment cases from being litigated at all. (181.) See Sherman v. United States, 356 U.S. 369, 384 (1958) (Frankfurter, J., concurring) ("What police conduct is to be condemned, because likely to induce those not otherwise ready and willing to commit crime, must be picked out from case to case as new situations arise involving different crimes and new methods of detection."). (182.) For example, where government agents attempt to pressure a recovering drug addict into selling drugs when there is no evidence suggesting current criminal activity by that individual, this should constitute entrapment. See Pezzella v. State, 513 So. 2d 1328, 1330 (Fla. Dist. Ct. App. 1987) (finding police action constituted entrapment where there was no information that defendant, as a recovering drug addict, was involved in illicit drug activity). However, the analysis could be completely different where the police are acting on knowledge of the target's repeated prior contacts about sales with an informant. See Lusby v. State, 507 So. 2d 611, 611-12 (Fla. Dist. Ct. App. 1987) (rejecting entrapment defense where government established the defendant had repeatedly contacted government informant about the purchase and sale of illicit drugs). There, given the officer's knowledge, the risk that a hypothetical individual in the target's position would be pressured into criminality is substantially lower. Andrew H. Costinett, Georgetown University Law Center, J.D., 2011 ; University of Maryland, College Park, B.A., 2008. I would like to thank the staff at the American Criminal Law Review for their help throughout the editing process, specifically Meghan King and Jonathan Greenberg, who provided substantial edits and excellent commentary. Any errors left in this Note are my own. I would also like to thank Professor John Mikhail for helping me in fleshing out ideas as I prepared the first drafts of this Note for his seminar. Finally, thanks to my family and friends for their support, warmth and (most importantly) tolerance during my law school tenure. [c] 2012, Andrew H. Costinett. |
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