Enmeshed in Entrapment

Entrapment is the illegal and unsavory practice of luring someone into committing a crime and then prosecuting him for it. The question for the Supreme Court last week was whether the following situation qualified: Under cover Narcotics Agent Joe Shapiro suspected that Richard Russell of Whidbey Island, Wash., was manufacturing methamphetamine pep pills (or speed), so Shapiro offered to do business with him. As part of the deal, Shapiro supplied a hard-to-get chemical ingredient. After Russell produced the speed and sold him some, Shapiro eventually made the arrest. Was that entrapment or a necessary and lawful use of deceit?

Necessary and lawful, said Justice William Rehnquist, speaking for a five-man majority that chose to hew to a line of earlier decisions. Infiltration of a drug ring and "limited participation in [its] unlawful present practices is a recognized and permissible means of apprehension." And by extension so is the providing of "some item of value," since "an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them." Treading a delicate line, Rehnquist ruled that "it is only when the Government's deception actually implants the criminal design in the mind of the defendant" that the official conduct becomes unacceptable. Potter Stewart, William Brennan, William Douglas and Thurgood Marshall constituted a dismayed minority. As Stewart said: "The purpose of the entrapment defense cannot be to protect persons who are 'otherwise innocent.' Rather, it must be to prohibit unlawful governmental activity in instigating crime." The focus, in other words, should be not on the defendant but "on the conduct of the undercover Government agent." A friend-of-the-court brief filed in the Russell case by the A.C.L.U. had contended that the rule against entrapment had not stopped undercover agents from fostering serious crimes --such as the Camden, N.J., raid on draft files for which a paid Government informer provided key plans of the target office and allegedly stirred up the plot again when it was all but moribund. Concluded Stewart: "It is the Government's duty to prevent crime, not to promote it."

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