Entrapment by law enforcement officials who are trying to produce proof of criminal activity is normally not an attractive subject for the mainstream media. However, the recent well-publicized arrest of a Somali teenager on terrorism charges in Portland, Oregon, has raised questions in the media about the government’s tactics in building their cases against people like this Somali-born terrorism suspect.

Some people, including Atlanta criminal defense attorneys, are questioning the fundamental fairness of law enforcement using entrapment to lure people who pose no real danger of committing crimes into pretend conspiracies. In this way the government prods the suspect into taking action toward committing a crime. But the actions never would have been taken if not for the government’s pushing for them to be taken.

In the case of the Somali teenager, Mohamed Osman Mohamud, 19, federal authorities claimed that Mohamud was given opportunities to abandon the criminal enterprise and seek a non-violent way to express his views, but that Mohamud refused. (Note that the claim is that Mohamud was given the opportunity to follow an alternate path, not that he was pushed or even encouraged to follow that path.)

Attorney General Eric Holder characterized the Mohamud sting operation as “part of a forward-leaning way in which the Justice Department, the F.B.I., our law enforcement partners at the state and local level are trying to find people who are bound and determined to [commit crimes].”

Law enforcement’s affidavit in the Mohamud case says that in the first meeting with the suspect, an informer gave Mohamud five options to “help Islam,” some peaceful, some illegal, and that Mohamud chose a violent, illegal option. For some reason, though, there is no recording of that meeting, even though there are recordings of all subsequent meetings.

Courts will examine entrapment defenses by looking at how predisposed the defendant was to commit a crime, and how much the police pushed him to commit it.

What are the Justice Department’s guidelines regarding how far a law enforcement agent can go to influence a suspect’s behavior? We don’t know. The Department keeps those guidelines secret.

Source: New York Times “In U.S. Sting Operations, Questions of Entrapment” 11/30/2010