Reason magazine recently described Florida police attempts to arrest men and charge them with soliciting underage girls for sex. The libertarian magazine described what it called “outrageous” and “absurd” sting operations in which agents texted with men posing as young girls.
Leaving aside the question of whether Michigan agents would or could use similar tactics, the tactics of Florida agents offer a good moment to compare the tests for deciding if police have used entrapment in Florida with the quite different tests used in Michigan.
What is entrapment?
Entrapment is when an agent of the government persuades someone to commit a crime they would not have committed otherwise. The agent influences someone so that they commit a crime they started out having no intention of committing.
What did Florida police do?
According to Reason, agents posing as underage girls were relentless in aggressively flirting with adult men.
Quoting local coverage, the magazine describes agents asking the men to meet for sex and guiding conversations back to sex even when the men tried to steer them back to nonsexual topics.
One agent even posed as the father of a girl giving his permission for the suspect to have sex with his supposed “daughter.”
Florida’s “subjective” test for entrapment looks at the suspect
Depending on the state, U.S. courts use one of two kinds of tests to judge whether agents entrapped suspects.
Florida uses the so-called subjective test, which focuses on the mind of the defendant arrested for, in this case, soliciting underage people for sex.
The defendant must prove that they were not inclined, willing or ready to commit a crime. The actions of the police are not the issue. Only the defendant’s attitude matters and they must prove they were not “predisposed” to commit the crime.
Michigan’s “objective” test for entrapment looks at the police
In Michigan courts, the test for entrapment focuses on the actions of the police and not on the mind of the defendant.
The court must ask if the police behaved so poorly that it cannot allow a guilty verdict based on police evidence.
Under this test, it is entrapment if police took actions they cannot take to get a law-abiding citizen to break the law. The test also says it is entrapment if police behavior was so wrong or immoral that the court cannot allow it as public policy.