OPINION: Entrapment, what it is and what loopholes — intentional or not — go along with it

Ross McDonnell Opinion Writer

Entrapment is a term I only very recently learned that not a ton of people are familiar with. Kicking the idea for the column around to friends and family, I actually got more questions than I did feedback. Entrapment, in United States legal speak and according to Merriam-Webster, is a term that refers to tricking, baiting or in their words “luring” a person into committing a crime so authorities can prosecute them. Also, legally, the person or persons who take part in entrapping the victim must be someone affiliated with law enforcement and not a person in general. I will cover that aspect more later. While this definition seems straightforward enough, unfortunately the application of the law is much more complicated.

According to The Ohio Office of the Public Defender, entrapment is a valid defense 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 alleged offense and induce its commission in order to prosecute.” This wording is, unfortunately, a lot less clear than the dictionary definition. Many times, that unclear wording has been used to manipulate verdicts in cases involving entrapment.

As the previously linked page continues, there are multiple instances of people who were convicted after being entrapped, as the jury was instructed that if they believed the defendant was “predisposed” to committing the crime, entrapment was not a valid defense. However, the idea of someone being “predisposed” to a crime or not is, in my opinion, inherently prejudicial and strongly invites the personal biases of the juror.

As I have written before for KentWired, everyone does have a bias. There is the obvious, that some people may have a racial or ethnic bias, that’s not good. While those may be extreme cases, there are a million other types of bias that people may have. I have met people — and I suspect you have too — that are biased against a million different things. Young people, older people, people with long hair, people who dress a certain way, people who have tattoos, don’t have tattoos, people who talk a lot, people who are quiet and the list goes on and on.

Even without bringing into the picture the issue of bias, I still find the “predisposed” logic to be flawed for this reason: what would even determine if someone is “predisposed” to crime? Personally, I don’t think there can be an answer to that, at least not one I would trust strong enough to reach a guilty verdict. Is someone predisposed to crime if the state believes they are? If so, that would undermine the entire idea of the entrapment defense. Is a person who jumps at the chance to buy illegal drugs predisposed to be a drug user? Perhaps, but the target of the operation was still not the one who initially came up with the idea. They were, in a sense, tricked or lured, which by both the dictionary definition and my personal conscience should be counted as entrapment. In what circumstances would a normal, law-abiding citizen commit a crime? I find that an impossible question to answer. What makes a citizen law-abiding? Not having committed any crimes. Therefore, using “predisposition” to counter the entrapment defense seems to automatically add confusion to the minds of the jurors.

Many such concerns in the majority of my debates on the subject are met with similar responses to what a family friend and former federal prosecutor told me: “it would be too difficult to catch criminals otherwise.”

I don’t subscribe to that argument for a number of reasons. Firstly, in my opinion, I do not believe convenience to be a good enough reason to justify unethical practices, especially amongst people that are held to as high of a standard as law enforcement is. Secondly, there is already a fair amount of crime that is committed every year.

According to the FBI, there were 1.2 million violent crimes committed in the United States in 2019 and an additional 6.9 million property crimes.  Before going out of your way to create a new crime — in a sense what entrapment is — I think district attorneys, their prosecutors and the public would be better served to focus on the crime that already happens every day. Additionally, the argument that entrapment is needed to catch crime, in my opinion, is inaccurate. Criminals are caught every day without entrapment, through methods such as investigation, catching people in the act or through confessions; that can, hopefully, be chalked up to common knowledge.

Before I wrap up, a little bit more on a few things I alluded to earlier. Firstly, entrapment is legally defined as something that has to be done by a police officer or similar official. By the letter of the law, this could allow people such as “confidential informants” of a branch of law enforcement to entrap the target of an investigation. In my opinion, entrapment is entrapment, and regardless of how it is executed it is still an unethical practice that could cause would-be innocent people to commit crimes and subsequently be arrested and convicted.

Secondly, while I am not aware of such an occurrence ever happening, if a person wanted to take justice into their own hands (vigilante is the wrong term here, as that usually means a person who tries to deal out punishment without involving any agency of law enforcement) and therefore tried to trick someone into committing a crime so as they could be punished, that should, in my opinion, count as entrapment. I’m pretty sure no such thing has ever happened, and I probably would not want to meet the person — well-intentioned as they may be — who thinks that is a good idea, but it’s a good safeguard to have.

In short, I think simplifying entrapment laws would be easier for everyone involved. It would, in my opinion, actually make law enforcement easier and it would allow police officers to focus on crime that is happening instead of taking time out of their schedule for an elaborate ruse. It would certainly make criminal trials easier if more traditional methods of investigating were used instead of entrapment. Nobody, of course, has the right to commit a crime, but trying to bait otherwise-innocent people into committing crime can be equally wrong and is in any case unethical. No one case, in my opinion, can ever be as important as the integrity of our justice system.

Ross McDonnell is an opinion writer. Contact him at [email protected].