Test Question: Entrapment

Hypothetical: Suppose that an undercover officer, Lefty, repeatedly approaches a person, Pancho, who has never sold drugs before. Suppose next that Lefty begs, pressures, and pleads for Pancho to procure him drugs, saying he is addicted and will suffer without them. Lefty offers a large amount of money to Pancho and continues asking for days. Eventually Pancho agrees to obtain drugs for Lefty.

Question: Is it fair to prosecute Pancho for selling drugs?

In California, entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. Such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect—for example, a decoy program—is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.

There are two guiding principles when it comes to entrapment. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.

Returning to Pancho & Lefty, if a jury believes that Lefty’s persistent pressure and the offer of a large sum of money would cause a normally law-abiding person to commit the crime, this could be considered entrapment in California. So it would probably be most fair if Pancho were let go - out of kindness, I suppose. But also because it sounds like he was legally entrapped under the laws of the State of California.

Grade: B-