United States v. Russell 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed.2d 366 (1973)
Russell and the Connolly
brothers were suspected of running a drug lab. An undercover policeman showed
up and offered them a deal. He would supply propanone (which was hard to
come by) in return for half the meth that they made using the rare
The undercover policeman
took the chemical to the drug lab and watched them make the drugs. They
then gave half of the batch to the policeman.
A month later, the undercover
policeman came back and asked Russell and the brothers if they were
interested in making more. They said that they already got some propanone
from someone else, but that they could always use more. The policeman
returned with a search warrant and found drugs and drug making equipment.
Russell and the Connolly brothers were arrested.
At trial, Russell argued the
defense of entrapment. The judge
issued an order to the jury defined entrapment by the subjective approach.
"Where a person already
has the willingness to break the law, the mere fact that the government
agent provides what appears to be a favorable opportunity is not
Russell was convicted of
various drug offenses. He appealed.
The Appellate Court overturned
the conviction. The prosecution appealed.
The Appellate Court rejected
the subjective approach in favor of an objective approach to defining entrapment.
The objective approach looks to whether there has been "an
intolerable degree of governmental participation in the criminal
enterprise," regardless of the intentions of the accused.
In this case, Russell
could not have made the drugs if the policeman hadn't given him the
The US Supreme Court reversed
and upheld the conviction.
The US Supreme Court found
that Russell was predisposed to commit the crime, and therefore was
barred from using the defense of entrapment.
The Court noted that
propanone was hard to find, but it wasn't impossible to find it, or
illegal to possess it, so the police didn't give Russell anything he
couldn't have gotten (and did get) himself anyway.
Russell had made meth
before and after, so he was a willing criminal. The police involvement
just made it easy to gather evidence against him.
Basically, the Court found
that the crime would have happened anyway, even without the police
The Court found that when
determining if there was entrapment
the courts need to "draw a line between the unwary innocent and the
That's the subjective
If Russell had never been
involved in drugs prior to the sting, maybe his entrapment defense would
The Court read the subjective
approach into the criminal Statute by
saying that Congress wouldn't want the Statute to apply to innocent
Induced + non-predisposed =
The Court noted that, "we
may some day be presented with a situation in which the conduct of law
enforcement agents is so outrageous that due process principles would
absolutely bar the government from invoking judicial processes to obtain
a conviction...But the instant case is distinctly not of that
That leaves open the
possibility of a court ruling based on the objective approach.
In a dissent it was argued
that the Court should adopt the objective approach.
"Supplying the chemical
ingredient used in the manufacture of this batch of 'speed' made the
United States an active participant in the unlawful activity."
"Here, the Government's
agent asked that the illegal drug be produced for him, solved his
quarry's practical problems with the assurance that he could provide the
one essential ingredient that was difficult to obtain, furnished that
element as he had promised, and bought the finished product from the
respondent, all so that the respondent could be prosecuted for producing
and selling the very drug for which the agent had asked and for which he
had provided the necessary component. Under the objective approach that I
would follow, this respondent was entrapped, regardless of his
predisposition or innocence."
The difference between the subjective
approach and the objective
approach is that under the subjective
approach the same government actions
result in opposite verdicts depending on the mind of the accused.