Wednesday, June 20 , 2018, 5:59 pm | Fair 68º


Susan Estrich: Pitfalls of Entrapment

Fighting terrorism one predisposed teenager at a time is not the way to wage war

Defenders of Mohamed Osman Mohamud are already arguing to the media that he was set up and in court that he was entrapped. Every state recognizes a defense that argues a defendant was “entrapped,” but most of them define it narrowly, as do the federal courts.

Susan Estrich
Susan Estrich

The debate in entrapment law has been between the “objective” view, which asks whether law enforcement went too far, and the “subjective” view, which asks whether the defendant was predisposed to do it.

The “objective” view is famously hard to quantify. Justice Felix Frankfurter, in language reminiscent of Justice Potter Stewart’s “know it when I see it” definition of obscenity, explained that entrapment is established when “police conduct ... falls below standards, to which common feelings respond, for the proper use of governmental power.” More practically, the inquiry is whether the police action would be likely to induce wrongdoing in a person who would otherwise resist ordinary temptation.

The “subjective” test is famously hard to meet. It focuses on whether the defendant was “predisposed” to commit the offense, defined to mean that he or she was “ready and willing” to do it if presented with a favorable (or even very, very favorable) opportunity to do so. The subjective test is the one most states and the federal courts apply today. The best proof that a person was predisposed to do something is, as here, that he or she did it.

Under either test, at least based on what we know today, this sting operation should pass legal muster. It isn’t below “common feelings” for the FBI to aggressively seek out those who would bomb a downtown Christmas tree lighting by providing them the opportunity and testing their resolve.

The defense is already pointing to an allegedly incomplete tape of an early session with agents — in which, they will claim, the critical agreement was forged and inducement was dangled. But it sounds like agents went out of their way in subsequent meetings to offer the defendant a chance to pull out and demonstrate his lack of predisposition, which he did not do. Given the context, that should be enough.

However, the fact that the government sting passes legal muster doesn’t answer all of the troubling questions it raises. The most troubling questions, of course, are how a teenage citizen of this country could hate it so much and how many other such young people are out there.

The sting operation in this case had to proceed virtually to the final step to ensure that the government would have sufficient evidence to prove the single count of attempt. Attempt requires substantial steps, if not the last ones. There was no conspiracy to charge here, much less an enterprise, because the only people the defendant ever conspired with were federal agents. All those resources had only one teenage target.

As a matter of law, I don’t have a problem with going after domestic terrorism, one predisposed teenager at a time. But as a matter of policy, it seems frightfully inefficient. Ideally, our policy would not be to lure teenagers, but to ensure that they aren’t lured by others; to go after the real bad guys, the ones who train and arm and incite these kids to violence.

When you lure a kid, you eliminate a risk that may or may not have been realized: A kid who might never have committed a crime gets incapacitated. While I certainly don’t think he has any claim to being blameless, and I would hope his successful prosecution would deter others from going down that road, fighting terrorism one predisposed teenager at a time seems like a very costly and inefficient means to wage a war.

— Best-selling author Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her.

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