The Federal Bureau of Entrapment

Angela Nolan-Cooper was a fool for love. She also laundered money for wealthy criminals. The combination of the two was her undoing.

On Feb. 7, 1994, a confidential informant for the IRS introduced Nolan-Cooper to a drug dealer from New Orleans named Louis Richard. Richard was flush with money from the narcotics trade. He needed a skilled lawyer, like Nolan-Cooper, to hide his wealth from the Feds. Richard was tall, muscular, flashy, charismatic and liked to have fun. She was attracted to him. They quickly worked out an arrangement.

As the months went by and their partnership deepened, they grew closer. Richard took Nolan-Cooper to expensive restaurants, gave her presents and called her affectionate nicknames. Friends later said they believed the two were a couple. One night, after a double date, they had sex.

Shortly thereafter, Nolan-Cooper was arrested.

“Louis Richard,” she learned, was an alias. The man she’d fallen for was actually undercover federal agent Louis Oubre, who’d played in the National Football League before entering law enforcement. Oubre’s male friend on their double date was also a federal agent.

Nolan-Cooper was a money launderer before meeting Oubre. But she was induced by law enforcement to commit this particular crime, committed the crime, and was punished for doing so. What were her rights in this situation? This is where the idea of “entrapment” comes in. On the face of it, the legal concept of entrapment seems to be fairly straightforward. Generally, it means that defendants cannot be convicted when law enforcement has pressured or unduly influenced them to commit a crime.

But the fact is, the legal rules regarding entrapment are a confusing, unworkable mess. Entrapment can mean one thing in one state and something fundamentally different in another. In federal courts, where the entrapment defense is most needed, it hardly exists at all, which has caused a full-blown crisis of confidence in our criminal justice system.

The law requires courts to protect citizens who can prove that they committed the crime for which they’ve been charged as a result of police pressure or manipulation. However, even as police increasingly use creative and controversial ways to induce suspects to commit crimes, the defense is still a rarity—the legal equivalent of a “Hail Mary!” pass. According to an article in the University of Pennsylvania Law Review, defendants raise it in just .08% of criminal cases—and they lose two-thirds of those cases.

This entrapment problem shows that a law enforcement culture has definitely emerged, especially within federal agencies like the Federal Bureau of Investigation and the Drug Enforcement Administration, that uses some of the sleaziest tactics imaginable—deception, trickery, betrayal, false friendship, even crime itself—to convince suspects to break the law. Trial court judges tolerate these dirty tricks and then appellate court judges approve the convictions that result on review. Meanwhile, the accused are denied the fair treatment the Constitution should afford them.

While these agencies generally try to keep their resources and operations hidden from the public to protect their reputations, Freedom of Information Act requests, publicly available court documents and good journalism have cast enough sunlight on their activities that public trust in federal law enforcement (and the courts that encourage these tactics) is cratering. Right-leaning, left-leaning and libertarian news sites alike are expressing concern. Morally repugnant police behavior seems to be one of the few problems in our politically polarized society most of us agree on.

But all is not lost. The Supreme Court can help restore order, fairness and confidence in the rule of law by announcing that the Constitution bars police from violating the private lives of suspects in shocking, outrageous or illegal ways for the purpose of inducing them to commit crimes. A small but principled minority of judges and legal scholars have advocated for such a rule for generations. As federal law enforcement agencies continue to grow, both in size and in their willingness to imitate the very practices of the criminals they’re pursuing, the adoption of such a rule has never been more urgent.

Law enforcement has always made use of undercover officers and confidential informants who have lied, tricked and used other innovative forms of chicanery in order to make arrests. This has been especially true in cases involving criminal organizations, like drug cartels, sex trafficking rings and street gangs, for whom crime is an underground business enterprise. It’s also true of subversive groups that plot political violence. Sting operations germinated during the Prohibition era and spread while the nation fought the War on Drugs, but it was the terrorist attacks of Sept. 11, 2001, that ushered in the current era of widespread amoral crime-fighting.

9/11 was such a catastrophic event that federal authorities shifted their priorities from solving crimes to preventing them. As they’ve taken on more of a national security role—acting less like police officers and more like domestic spies—the ethically dubious operations they once did secretly are now performed more routinely and undeniably. For instance, the FBI now has 10 times as many confidential informants snooping on their fellow Americans than it did in the 1960s, when it was bugging Martin Luther King Jr.’s hotel rooms and infiltrating the Black Panthers. A full 35% of terrorism convictions since 9/11 have been set up by the government via FBI stings, and the shadiness of many of them have set off alarm bells.

The case of radical environmentalist Eric McDavid illustrates the type of aggressively deceptive methods used with more frequency after 9/11.  He was arrested in 2006 after developing romantic feelings for Zoe Elizabeth Voss (with the informant name of “Anna”), who had encouraged him to blow up targets like the Nimbus Dam and the Department of Agriculture’s Institute of Forest Genetics, both in California. “Anna” was given “crisp hundred-dollar bills,” fake bomb-making materials, and numerous other resources to turn McDavid into a terrorist. Voss’s handlers encouraged her to convince McDavid that there might be romance, but only after his mission was accomplished. 

McDavid was released after eight years in prison when the FBI confessed to hiding evidence from the defense during his trial, including love letters between McDavid and their informant.

The Feds commit small crimes, they say, to protect us from big ones, just as they pay and do favors for less dangerous criminals to bring down the worst of the worst. However, the line between “good guy” and “bad guy” in these operations often gets hopelessly blurry, and this kind of unseemly policing has blurred so many lines that police can’t keep from tripping over them.

In 2011, the FBI allowed its confidential informants to commit more than 5,600 offenses. That number exceeded 5,900 in 2012. In all, the FBI paid informants $294 million between 2012 and 2018. Taxpayer-funded criminals, offending with impunity or even in partnership with their government handlers, have metastasized into nearly every corner of our society. Many of them steer their law enforcement partners toward criminal rivals to eliminate competition and gain bigger shares of illegal markets. The law enforcement-informant relationship is often symbiotic: Just as snitches work for the police, the police work for them.

When police target suspects in sting operations, they invert a core principle of our constitutional system, necessary in any free society—the presumption of innocence. They target someone they believe, but can’t yet prove, is a criminal, and then manipulate that person in ways that ensure he or she will be caught doing something illegal. If the engineered offense is nonviolent in nature, like fraud or drug trafficking, surveilling agents will often allow it to occur. If violent, they tend to collect as much incriminating evidence of preparation and intent as possible—recorded phone calls, text messages, video footage, etc.—before arresting the suspect for an inchoate crime like “solicitation of a crime of violence” or “attempted use of a weapon of mass destruction,” for which they can be sentenced to lengthy prison terms with no one getting hurt.

Traditionally, criminal defendants were not allowed to argue that they were not guilty due to entrapment. The Supreme Court first recognized the entrapment defense in 1932 in a case arising out of the massive illegal liquor market created during Prohibition. In Sorrells v. United States, a federal agent named R.V. Martin, pretending to be a furniture salesman on vacation, struck up a conversation about World War I with William Sorrells, who’d served in that war. Martin revealed that, like Sorrells, he had served in the Thirteenth Division of the American Expeditionary Forces. They went on to share war stories and reminisce.

Finally, Martin asked Sorrells if he could buy some alcohol. Sorrells declined, telling Martin that “he did not fool with whiskey.” Undeterred, Martin repeated his request. After a few entreaties, Sorrells finally sold Martin a half-gallon of whiskey for $5, for which he was ultimately sentenced to 18 months in a federal prison.

While all but one Supreme Court justice agreed that Sorrells’ conviction should be reversed, they were divided on how this new entrapment defense should work. Chief Justice Charles Evans Hughes’ opinion for the majority, still binding in federal courts, prohibited the conviction of defendants when federal agents had induced them to commit a crime that they originally didn’t want to commit.

Someone “otherwise innocent” shouldn’t be punished by the government “for an alleged offense which is the product of the creative activity of its own officials.” Because this version of entrapment focuses less on police conduct and more on whether particular defendants are predisposed to commit the crime, it’s known as the “subjective” approach.

In a strongly worded dissent, Justice Owen Roberts argued that this approach would bog down trials with irrelevant background evidence about the defendant’s personality to determine whether he was prone to committing crimes. The focus during entrapment cases, he insisted, should be on what government agents actually did, not what defendants may or may not have been inclined to do. The subjective approach was dangerous because it empowered officers who acted with the worst sort of lawless abandon, so long as juries believed their targets already had a criminal predisposition.

Justice Roberts feared precisely the problem we’re dealing with now—that the public would lose faith in the system. “(C)ourts must be closed to the trial of a crime instigated by the government’s own agents,” he wrote. Instead, judges should focus squarely on the officer’s actions because “(i)t is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law.” This “objective” approach would preserve the integrity of the courts (“and the government”) by deterring abuses.

Justice Roberts’ opinion was signed by that era’s great champion of police accountability, Justice Louis Brandeis. Four years earlier, in a case where federal agents illegally wiretapped a suspect’s telephones, Brandeis had famously written a dissenting opinion warning of dark consequences when police exempt themselves from the laws they enforce against others: “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself….”

The court was even more fractured in 1958 when it ruled on its next major entrapment case, Sherman v. United States. Joseph Sherman was under a doctor’s care for heroin addiction when a convicted drug dealer-turned-informant seized on his weakness, pestered him to start using and dealing again, and set him up for arrest. All nine members of the court found the federal government’s conduct repugnant and voted to overturn Sherman’s conviction, but they were split 5-4 on whether the subjective or objective approach should apply.

Chief Justice Earl Warren, writing for the majority, followed the precedent set by Sorrells by applying the subjective approach. As that approach requires, he focused on whether Sherman had been predisposed to re-involve himself with drugs. He found that while Sherman had twice been convicted years before, the facts that he’d sought treatment and had originally resisted the informant’s overtures showed that prior to meeting the informant, he hadn’t been inclined to use drugs again.

Writing for the four dissenters, Justice Felix Frankfurter amplified Justice Roberts’ objections to the subjective approach in Sorrells. To Frankfurter, nothing less than the integrity and viability of the criminal justice system was at stake. Encouraging a drug addict to relapse for no better purpose than to arrest him on a drug charge would’ve been intolerable whatever Sherman’s predisposition. With such methods, the cure is worse than the disease.

The Supreme Court suggested a solution to the problems of the subjective approach to entrapment in 1973. In United States v. Russell, a lower court had ruled that the government’s machinations against the defendant Richard Russell were so outrageous that his conviction should be reversed even though he’d been predisposed to manufacture methamphetamine. To facilitate his conviction, an undercover agent had given Russell a hard-to-find ingredient without which the drug couldn’t be made. The Supreme Court, in another 5-4 decision, disagreed with the lower court and reinstated Russell’s conviction.

However, in his opinion for the majority, (future Chief) Justice William Rehnquist suggested that while it wasn’t crossed in this case, there might be a line beyond which police can’t act to secure convictions, whatever the defendant’s predisposition. He cited the 1952 case of Rochin v. California, in which police—without a warrant—forced a physically resisting suspect, Antonio Rochin, into a hospital and pumped his stomach to retrieve evidence he’d swallowed. The court ruled that police “violate fundamental fairness” and the Constitution’s promise of due process of law with such outrageous tactics.

While providing Russell with a necessary ingredient to make meth didn’t rise to this level, if police were to use tactics “shocking to the universal sense of justice”—as they did when they had Rochin’s stomach pumped—for the purpose of inducing suspects to commit crimes, it might not matter whether the defendant had been inclined to commit the crime. This concept, strongly resembling the objective approach to entrapment, has come to be known as the “outrageous government conduct” defense.

Justice Rehnquist wasn’t known for being sympathetic to those accused of crimes. Perhaps realizing that he’d opened the floodgates for too many hopeful defendants, he repudiated his own idea just three years later. However, other justices, in non-binding opinions, continued to embrace it.

There is an important distinction between the outrageous government conduct defense and entrapment: There’s no constitutional right not to be entrapped. In Sorrells and Sherman, the court explained that the entrapment defense is statutory, not constitutional, in nature. While the framers of the Constitution never mentioned it, it is implied in every criminal law passed by Congress, the court reasoned, because it is absurd to believe that Congress would intend for police to perpetrate the very acts they’ve been instructed to prevent.

Because it is a legislative creature, Congress has had a free hand to regulate how and when the defense of entrapment can be used. State governments have the same power to regulate it in their courts. Some states have chosen to imitate the federal Sorrells-Sherman subjective approach; others, perhaps swayed by the dissenters in those cases, have opted for the objective approach. Congress has chosen to remain perpetually silent, even as the problems of the subjective approach have grown increasingly pervasive and acute.

Lawmakers tend to respond to public pressure. Those suffering from our entrapment crisis belong to a constituency with virtually no political clout—criminal defendants. As a result, even the most unseemly police efforts to punish them are tolerated, if not openly supported, by members of both major political parties. The executive branch routinely uses such tactics, and the legislative branch always tolerates their use. The very same methods George W. Bush’s Republican administration implemented to target radical Islamic terrorists after 9/11 are now being employed, no less zealously, by Joe Biden’s Democratic administration against January 6th “insurrectionists.”

By contrast, the outrageous government conduct defense is rooted in the Constitution and protects individuals against actions from every branch of government, state or federal. It is rooted in the same “substantive due process” theory of constitutional rights that bars violations of the privacy and dignity of citizens in other especially obnoxious ways. It has stopped the government from barring parents from enrolling their kids in private schools, criminalizing the use of birth control, and preventing adults in love from marrying one another. It’s a theory of fundamental rights based on the understanding that the list of freedoms in our Constitution was never intended to be exhaustive. Instead, some rights, no less substantive than those found in the text, exist by implication in the Constitution’s general promises of “due process of law” and “liberty.”

To say the substantive due process doctrine has been controversial would be an understatement. Like entrapment, it has divided the American judiciary for generations. However, because substantive due process rights profoundly affect all Americans, not just criminal defendants, it has gotten infinitely more public attention.

For numerous reasons, many quite reasonable, the court has been reluctant to recognize substantive due process rights. The doctrine’s opponents argue that it has no basis in law or history and that judges who “find” these unwritten rights in the Constitution are actually just imposing their personal moral and political agendas, often in ways that violate states’ rights, disrupt our system of checks and balances, and minimize democracy by elevating unelected federal judges.

“Just who do we think we are?” Chief Justice John Roberts famously wrote when dissenting from a ruling that, in a 5-4 vote, recognized a substantive due process right. The court has refused to recognize the right to physician-assisted suicide and the right of prisoners to DNA testing of evidence that might exonerate them. In 2022, it overturned its previous decision in Roe v. Wade as having wrongly conferred on women a substantive due process right to have an abortion..

The outrageous government conduct defense combines entrapment and substantive due process defenses so that particularly egregious police attempts to provoke crimes are always prohibited. For example, in 1978 a court reversed William Twigg’s conviction for manufacturing “speed” when it determined that he had been “set up” and “encouraged” to perform menial tasks for a meth lab created, funded and operated largely by the Drug Enforcement Administration.

Twigg didn’t know how to make meth and never learned. Instead, he took orders from a DEA informant who “was completely in charge” while Twigg mostly “ran errands for groceries and coffee.” The DEA’s criminality in this case dwarfed Twigg’s. The court found that it would be fundamentally unfair—a violation of Twigg’s substantive due process rights—to punish him when the methods used to ensnare him had reached such “a demonstrable level of outrageousness.”

But as cautious as courts have been with substantive due process rights, they’ve been downright skeptical of the outrageous government conduct defense. Since Justice Rehnquist suggested it in 1973, the Supreme Court hasn’t reversed a single conviction on this basis. Lower federal courts are split between those that think it exists only in a handful of extreme cases and those that disregard it altogether.

The Federal Court of Appeals for the Third Circuit in Philadelphia, for instance, recognizes the defense but ruled that the conduct of the undercover agent who wooed and slept with Angela Nolan-Cooper hadn’t been outrageous because he had been acting on his own, rather than following orders, when the relationship became sexual. The court also believed that, even if having sex with a suspect had been outrageous, Nolan-Cooper hadn’t been induced by the sex to launder agent Oubre’s money—she would’ve done it, the court wrote, even if he hadn’t slept with her.

The reluctance to recognize the outrageous government conduct defense is understandable, at least in theory. Whatever came before, the defendants in these cases took the bait and committed the acts for which they were convicted. They all had the right to pursue an entrapment defense (using the subjective approach) and, if believed, they would’ve been acquitted. All of them were found to have committed criminal acts that they’d been predisposed to commit before being approached by police. Yet since winning with the entrapment defense is about as common as finding a golden Willy Wonka ticket, the court’s failure to apply the outrageous government conduct test has been a disaster in practice.

Criminal organizations are more clandestine and sophisticated than ever before. In many ways, the dirtiness of modern policing has been an understandable, if still intolerable, response to new dangers. It’s possible that when rooting out the nation’s most dangerous and insulated felons, moral decency isn’t always a luxury those who keep us safe can afford. The actions of FBI agent Joe Pistone, for instance, who spent years infiltrating the Bonanno crime family as “Donnie Brasco,” argue strongly for the use of tactics that, in less serious and successful cases, seem insupportable. His work led to the convictions of more than 100 mob associates and mafiosi. He did a lot of good, whatever else he did.

However, it’s the job of the Supreme Court to protect citizens by raising the Constitution as a shield against particularly intrusive police methods. The justices who heard the landmark entrapment cases in 1932 and 1958, respectively, couldn’t have foreseen that the U.S. Department of Justice would, in its quest to thwart major crimes, turn itself into a factory for the commission of small ones. Had they foreknowledge, they’d have ruled differently.

That’s especially true of the Sherman case. The author of the 5-4 opinion in that case, Chief Justice Warren, was especially contemptuous of the police tactics now commonly used in stings and strongly supported using the substantive due process doctrine to protect the rights of the accused. He’d spent his entire career in law enforcement, professionalizing policing and implementing reforms in California’s criminal system, before joining the bench. As chief justice, he did more than any other judge in U.S. history to curb police excesses. Had he been visited by a “ghost of law enforcement future” and seen that nowadays federal agents can sell illegal cigarettes to suspects for the purpose of punishing those same suspects for selling illegal cigarettes, it’s easy to imagine that he’d have authored a strong majority opinion for the other side in Sherman.

The Supreme Court has been absent without leave on this issue. Not only has it shown no interest in reforming its failed subjective approach, it hasn’t even heard a significant entrapment case in more than 30 years. Like the frog in boiling water, the court has seemed determined to sit still while the temperature keeps rising.

The court should send a message to police and the nation by clearly adopting the outrageous government conduct defense, as defined by Justice Rehnquist in Russell. The definition of outrageous conduct—“shocking to the universal sense of justice”—may seem vague, subjective and written at a high level of abstraction, but its meaning will become clearer and more concrete every time it’s applied to the facts of a new case. With time, the court can develop a case law tradition that enforces universal standards of decency for police behavior.

The defense would function like the once-controversial Exclusionary Rule, which allows defendants to make pre-trial arguments that evidence illegally seized by police shouldn’t be presented to juries. Similarly, outrageous government conduct defendants would argue pre-trial that the charges against them should be dismissed because they’d been induced to break the law as a result of shocking police misconduct. When trial judges rule incorrectly, defendants would appeal to higher courts for relief.

This would reign in the worst police abuses, stimulate reforms more respectful of civil liberties, and restore, at least partially, urgently needed public confidence in federal law enforcement and the judiciary.