Presenting, Back from the [Almost] Dead, the Entrapment Defense

Abstract

Thomas Tobias, Ralph Hubert (“Sonny”) Barger, Richard Wayne Mummert, Kenneth Musslyn, and J. Wilton Hunt have much in common: each was induced by a government agent to commit a crime he would not have otherwise committed, and, as such, each was convicted despite the presentation of a sensible entrapment defense. In those cases, each was found to have been predisposed toward criminal activity. Much has changed, however, since those decisions, and today, each of those five defendants would have a strong chance of winning his entrapment claim based on the predisposition standard. Two United States Supreme Court decisions helped shift the application of that subjective standard centered on predisposition: Sherman v. United States and United States v. Jacobson. These decisions essentially moved the emphasis from an exclusive analysis of the defendant’s state of mind to one accounting for the nature of the improper government inducement. The challenge is to identify individuals who pose a serious threat to the community without government solicitation; thus the better approach is to apply the tried and true criminal law notion of causation to entrapment. Presented within this more proper context, each of the five defendants likely would have acquitted, and rightfully so, as the proper purpose of the entrapment defense is to determine if the defendant was truly a threat to society.

Keywords: induce, crime, conviction, predisposition, entrapment, defense, Sherman, Jacobson, government, threat