Other states, however, had already begun reversing convictions on entrapment grounds.
[5] Federal courts recognized entrapment as a defense starting with
Woo Wai v. United States, 223 F.1d 412 (9th Cir. 1915).
[6] The
U.S. Supreme Court first declined to consider the question of entrapment in
Casey v. United States, 276
U.S. 413
(1928), since the facts in the case were too vague to definitively rule on the question. Four years later, it did and in
Sorrells v. United States, 287
U.S. 435
(1932) unanimously reversed the conviction of a
North Carolina factory worker who gave in to an undercover
Prohibition officer's repeated entreaties to get him some liquor. It identified the controlling question as "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials".
[7]
In
Sherman v. United States (356
U.S. 369
(1958)), the Court considered a similar case in which one recovering
drug addict working with federal agents from the
Federal Bureau of Narcotics (a predecessor agency to today's
Drug Enforcement Administration (DEA)) solicited another to sell him drugs on the premise that his own efforts were failing. Again unanimous, its opinion focused more clearly on the defendant's predisposition to commit the offense, and on that basis overturned Sherman's conviction as well, since although he had two prior drug convictions, the most recent dated back five years. He was also attempting to rehabilitate himself, had made no profit on the sales and no drugs were found in his
apartment when it was searched, suggesting the absence of a predisposition to break drug laws. "To determine whether entrapment has been established," it said, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal".
[8]
Prosecutors won the next two times entrapment came before the Court, in
United States v. Russell (411
U.S. 423
(1973)) and
Hampton v. United States (425
U.S. 484
(1976)), albeit by narrow margins. In the former, the Court upheld the conviction of a
Washington man for manufacturing
methamphetamine even though an undercover agent had supplied some of the ingredients, and also pondered an "outrageous government conduct" defense, though it did not enable it.
Hampton let stand, by a similar margin, the conviction of a Missouri man who had, upon seeing
track marks on a DEA informant's arms, expressed interest in selling him
heroin. After several sales to the informant and undercover agents, he was arrested. The defendant alleged he had been led to believe by the informant that he was not selling heroin but a counterfeit. The Court found he was adequately predisposed to sell heroin in any event.
This became known as the "subjective" test of entrapment, since it focused on the defendant's state of mind. However, in all cases, concurring opinions had advocated an "objective" test, focusing instead on whether the conduct of the police or other investigators would catch only those "ready and willing to commit crime."
[9] Under the objective approach the defendant's personality (i.e., his predisposition to commit the crime) would be immaterial, and the potential for the police conduct to induce a law-abiding person considered in the abstract would be the test. This, supporters argued, avoided the dubious issue of an unexpressed legislative intent on which the
Sorrells court had relied and instead grounded the entrapment defense, like the
exclusionary rule, in the court's supervisory role over law enforcement. And like the exclusionary rule, they would have had judges, not juries, decide whether a defendant had been entrapped as a matter of law.
[10]