NCJ Number
87049
Journal
Harvard Law Review Volume: 95 Issue: 5 Dated: (1982) Pages: 1122-1142
Date Published
1982
Length
21 pages
Annotation
This note examines the implications of police using middlemen to induce targeted persons to commit crimes and argues that the new FBI guidelines do not adequately control the ways in which middlemen can induce criminal activity that otherwise would not occur.
Abstract
The criminal defense of entrapment protects defendants against law enforcement conduct aimed at securing a prosecution by inducing the commission of a criminal offense. Because entrapment is ultimately concerned with government conduct and only incidentally with criminal culpability, it offers no defense to persons who succumb to the criminal blandishments of private persons acting alone. It is a common method of law enforcement, however, for a government agent to encourage private persons who are unaware of the agent's identity to act as middlemen in seeking others who will assist them in illegal activity. Whether the entrapment defense is available to third parties induced to commit crime by an unsuspecting middleman is the subject of broad disagreement in the courts; the Supreme Court has never addressed the issue. The development of improved procedures for controlling the use of unsuspecting middlemen can be best achieved administratively by law enforcement agencies themselves. The FBI guidelines represent a first attempt at refining procedures to eliminate the possibility of entrapment. The guidelines, however, do not adequately control the conduct of middlemen who assist government agents in the creation of criminal opportunities. Improved standards should have both prospective and retrospective components. Prospectively, they should require reason for believing that the balance of incentives extended to middlemen will encourage them to bring only predisposed persons to a criminal opportunity. Retrospectively, they should require agents to discontinue the use of a particular middleman when there is a reason to believe that he has attempted to deceive either the agents or the targets. These standards should accompany the judicial recognition that the entrapment defense should be available to most types of defendants who become involved in crime through the solicitation of a middleman. Ninety footnotes are listed.