The Ethics of the Sting
A century before modern debates on police entrapment, Washington courts were already grappling with the line between preventing crime and creating it.
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Legal decisions reported within the present year illustrate the progress of thought in the courts upon the use of detective methods. An instructive one comes from Michigan. A lawyer named Saunders, who seems to have been a rascal, was planning to steal some papers from a courtroom. He arranged with the policeman in charge of the building that the latter should leave the door unlocked. The police then lay in wait; late that night they caught the thief in the act. He was tried, but the court expressed strong disapproval of the police promoting the commission of an offense for the sake of punishing it. The judge pronounced this practice 'scandalous and reprehensible,' stating that courts will never encourage officers who may lead persons to commit crimes in order to arrest them.
A pair of burglary cases are instructive as showing the tendency of the courts to unite upon a very closely drawn rule. One occurred in Kansas. A policeman informed the proprietor of a saloon that certain persons were planning to steal the contents of the money drawer. The proprietor, with policemen, concealed themselves in the rear. The suspects came, opened the door, entered, and began upon the safe; the party in ambush came forth and arrested them. The Kansas judges said this device was lawful. A shopkeeper is not bound to keep his door locked at night, and leaving it unlocked is not offering any temptation or consent to a marauder.
But in a California case, the court said the detective went too far. The detective encouraged a man named Collins to join in a burglary, then went first into the building himself, took the money out of the drawer, marked it with acid, gave it to Collins, and then whistled for the police. The judges said that here was no burglary. If the detective wasn't guilty of theft because he had the sheriff's permission, Collins was merely a bystander, and if they weren't guilty, he could not be. These cases illustrate that the law struggles to distinguish between clever investigation and the active promotion of wrong-doing.
“The fact that a person contemplating a crime is supposed to be an old offender can be no excuse for such a course. Human nature is frail enough at best, and requires no encouragement in wrong doing.”
This 1880 report highlights a perennial struggle in the American justice system: the line between 'sting operations' and entrapment. Just as 19th-century judges worried that detectives were 'promoting the commission of an offense,' modern Seattle continues to debate the ethics of proactive policing and the necessity of safeguarding the accused from government-led temptation.
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