Jon Sherman’s “A Person Otherwise Innocent”: Policing Entrapment in Preventative, Undercover Counterterrorism Investigations, published in 2009 by The University of Pennsylvania Journal of Constitutional Law, examines the jurisprudential state of the entrapment defense and its limits on the ground. Federal law enforcement agencies have adopted a strategy of prosecuting pre-terrorism by using conspiracy and material support as a pretext to arrest and neutralize potential terrorists. They frequently combine this strategy with the use of undercover agents, providing a ripe environment for entrapment: the practice of government agents creating crime in order to contrive prosecutions, rather than identifying and stopping real criminal plots. The essence of entrapment is a defense claim that the government (through its agents) caused an alleged criminal act to take place when it otherwise would not have. Most entrapment takes the form of implanting the whole idea and intent of the crime into the individual and thereby inducing a criminal act. But, while the precise boundaries of entrapment remain fluid, the prosecution can generally rebut the defense by proving that the defendant had a “predisposition” to commit any particular crime. Herein lies the essential problem: the government does not want any dangerous act to take place and therefore prosecutes material support or conspiracy. But is entrapment inherent where material support charges can be satisfied without any actual, concrete conspiracy, by merely philosophical support for some organization designated as supporting terrorism? Because “a predisposition to commit such an inchoate (pre-conspiracy) offense could only be established by pointing to the defendant’s ideology and statements,” and acts as simple as loaning one’s house for the night or aligning oneself with an organization can expose an individual to prosecution, the law could forbid not terrorist activities or even active conspiracies, but even unpopular alliances–despite the First Amendment’s longstanding protection of beliefs. Essentially, federal terrorism laws enable investigators to create conspiracies, and engage those conspiracies in larger continuing plots driven by undercover agents who encourage the target’s to involve their affiliates. This practice has simultaneously encouraged a crime and precluded a finding of entrapment by drawing out the defendants’ political affiliations, thereby drawing out their apparent “predisposition” to commit some act of terrorism. Sometimes, the undercover agent is the most active player in the conspiracy, providing materials, initiating contact and conceiving of the plot itself. As Sherman notes:
The risk of entrapping the innocent is particularly high when the Government conceives of the plot and takes substantial steps to aid in its commission, without waiting for the suspects to take the bait and reveal themselves as “would-be violators of the law.”
For these sorts of offenses, the standard of entrapment and rebuttal of it should be adjusted. Mere agreement with some terrorist organization or principle should be enough to rebut the entrapment of defendants, particularly in cases where all the initiative came from the government’s own agent. To do otherwise risks prosecuting ideas rather than bad acts. Sherman argues that the best way to combat these abuses is threefold:
- First, the jury instruction for entrapment should be altered in the context of terrorism cases so that the jury places proper weight on the government’s actions in creating the plot or pressing the defendant to act in the name of religion. This would in essence serve to define entrapment as a certain level of involvement, regardless of the defendant’s support for the crime itself or “predisposition”.
- Second, the court should exclude certain predisposition evidence so the jury is not prejudiced and the defendant’s First Amendment rights are protected. It is not a crime to express support for jihad or terrorist groups and the predisposition evidence should be focused on the willingness to commit a crime, not merely hope for a crime to take place or support for other criminals.
- Third, the material support statutes should be amended so that if the underlying offense is conspiracy, that conspiracy must actually exist. No more conspiring to one day conspire with some other people who may be in a terrorist group.
Finally, Sherman argues that the use of undercover informants and entrapment will ultimately undermine Muslim-American trust in the U.S. government and in so doing, make efforts to combat extremism that much more difficult. When First Amendment rights are violated and violated prejudicially, entire communities can lose their faith in the system — making Sherman’s reforms an imperative for both constitutional rights, as well as national security.