CRS Annotated Constitution

Fourteenth Amendment -- Table of ContentsPrev | Next

Other Aspects of Statutory Notice.—Conceptually related to the problem of definiteness in criminal statutes is the problem of the requisite notice a person must have that a statute commands that something not be done or alternatively that unless something is done criminal liability will result. Ordinarily, it can be said that ignorance of the law affords no excuse, that everyone is presumed to know that certain things may not be done. Moreover, in other[p.1750]instances, the subject matter or conduct may be sufficient to alert one that there are regulatory laws which must be observed.24

Supplement: [P. 1750, add to text following n.24:]

Persons may be bound by a novel application of a statute, not supported by Supreme Court or other “fundamentally similar” case precedent, so long as the court can find that, under the circumstance, “unlawfulness . . . is apparent” to the defendant.23

In still other instances, the requirement of “scienter” may take care of the problem in that there may be a statutory requirement of intent expressed through some form of the word “willful,”25 but the Court has so far failed in dealing with those cases involving strict liability to develop the implications of the mens rea requirement.26 There remains the case of Lambert v. California,27 invalidating a municipal code that made it a crime for anyone who had ever been convicted of a felony to remain in the city for more than five days without registering. Emphasizing that the act of being in the city was not itself blameworthy, the Court voided the conviction, holding that the failure to register was quite “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” “Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.”28

Entrapment.—Certain criminal offenses, because they are consensual actions taken between and among willing parties, present police with difficult investigative problems. Some of that difficulty may be alleviated through electronic and other surveillance, which is covered by the search and seizure provisions of the Fourth Amendment, and in other respects informers may be utilized, which may implicate several constitutional provisions. Sometimes, however, police agents may “encourage” persons to engage in criminal behavior, by seeking to buy from them or to sell to them narcotics or contraband or by seeking to determine if public employees or officers are corrupt by offering them bribes. The Court has dealt with this issue in terms of the “entrapment” defense, though it is unclear whether the basis of the defense is one of statutory construction—the legislature would not have intended to punish conduct induced by police agents—one of supervisory authority of the federal courts to deter wrongful police conduct, or one of due process command.29


The Court has employed the so–called “subjective approach” to evaluating the defense of entrapment. This subjective approach follows a two–pronged analysis. First, the question is asked whether the offense was induced by a government agent. Second, if the government has induced the defendant to break the law, “the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”30 If the defendant can be shown to have been ready and willing to commit the crime whenever the opportunity presented itself, the defense of entrapment is unavailing, no matter the degree of inducement.31 On the other hand, “[w]hen the Government’s quest for conviction leads to the apprehension of an otherwise law–abiding citizen who, if left to his own devices, likely would never run afoul of the law, the courts should intervene.”32 An “objective approach,” while rejected by the Supreme Court, has been advocated by some Justices and recommended for codification[p.1752]by Congress and the state legislatures.33 The objective approach disregards the defendant’s predisposition and looks to the inducements used by government agents. If the government employed means of persuasion or inducement creating a substantial risk that the person tempted will engage in the conduct, the defense is available.34 Typically, entrapment cases have risen in the narcotics area,35 but more recently, as in the “Abscam” controversy, the focus has been on public corruption and the offering of bribes to public officials.36


24 E.g., United States v. Freed, 401 U.S. 601 (1971) .
25 E.g., Boyce Motor Lines v. United States, 342 U.S. 337 (1952) ; Colautti v. Franklin, 439 U.S. 379, 395 (1979) . Cf. Screws v. United States, 325 U.S. 91, 101–03 (1945) (plurality opinion).
26 E.g., Morissette v. United States, 342 U.S. 246 (1952) .
27 355 U.S. 225 (1957) .
28 Id. at 228, 229–30.
29 For a thorough evaluation of the basis for and the nature of the entrapment defense, see Seidman, The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, 1981 Sup. Ct. Rev. 111. The statutory basis was said to be the ground in the Court’s first discussion of the issue, Sorrells v. United States, 287 U.S. 435, 446–49 (1932) , and that basis remains the choice of some Justices. Hampton v. United States, 425 U.S. 484, 488–89 (1976) (plurality opinion of Justices Rehnquist and White and Chief Justice Burger). The supervisory power basis was argued by Justice Frankfurter in Sherman v. United States, 356 U.S. 369, 380 (1958) (concurring). Utilization of that power was rejected in United States v. Russell, 411 U.S. 423, 490 (1973) , and by the plurality in Hampton, supra, 490. The Hampton plurality thought the due process clause would never be applicable, no matter what conduct government agents engaged in, unless they violated some protected right of the defendant, and that inducement and encouragement could never do that; Justices Powell and Blackmun, id. at 491, thought that police conduct, even in the case of a predisposed defendant, could be so outrageous as to violate due process. The Russell and Hampton dissenters did not clearly differentiate between the supervisory power and due process but seemed to believe that both were implicated. Id. at 495 (Justices Brennan, Stewart, and Marshall); Russell, supra, 439 (Justices Stewart, Brennan, and Marshall). The Court again failed to clarify the basis for the defense in Mathews v. United States, 485 U.S. 58 (1988) , holding that a defendant in a federal criminal case who denies commission of the crime is entitled to assert an “inconsistent” entrapment defense where the evidence warrants, and in Jacobson v. United States, 112 Ct. 1535, 1540 (1992) (invalidating a conviction under the Child Protection Act of 1984 because government solicitation induced the defendant to purchase child pornography).
30 Jacobson v. United States, 112 Ct. 1535, 1540 (1992). Here the Court held that the government had failed to prove that the defendant was initially predisposed to purchase child pornography, even though he had become so predisposed following solicitation through an undercover “sting” operation. For several years government agents had sent the defendant mailings soliciting his views on pornography and child pornography, and urging him to obtain materials in order to fight censorship and stand up for individual rights.
31 Sorrells v. United States, 287 U.S. 435, 451–52 (1932) ; Sherman v. United States, 356 U.S. 369, 376–78 (1958) ; Masciale v. United States, 356 U.S. 386, 388 (1958) ; United States v. Russell, 411 U.S. 423, 432–36 (1973) ; Hampton v. United States, 425 U.S. 484, 488–489 (1976) (plurality opinion), and id. at 491 (Justices Powell and Blackmun concurring).
32 Jacobson v. United States, 112 Ct. 1535, 1543 (1992).
33 See American Law Institute, Model Penal Code Sec. 2.13 (Official Draft, 1962); National Commission on Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code Sec. 702(2) (Final Draft, 1971).
34 Sorrells v. United States, 287 U.S. 435, 458–59 (1932) (separate opinion of Justice Roberts); Sherman v. United States, 356 U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v. Russell, 411 U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton v. United States, 425 U.S. 484, 496–97 (1976) (Justice Brennan dissenting).
35 Thus, in Sorrells and Sherman government agents solicited defendants, in Russell the agents supplied an ingredient, which was commonly available, and in Hampton the agents supplied an essential and difficult to obtain ingredient.
36 The defense was rejected as to all the “Abscam” defendants. E.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v. Williams, 705 F.2d 603 (2d Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d Cir.), cert. denied, 457 U.S. 1106 (1982) .

Supplement Footnotes

23 United States v. Lanier, 520 U.S. 259, 271–72 (1997) .
Fourteenth Amendment -- Table of ContentsPrev | Next