Entrapment defense when Government uses promise of sex to obtain illegal drugs

King, Campbell & Poretz has briefed and successfully asserted entrapment as an affirmative defense to drug offenses in certain situations. A scenario our firm has defended on more than one occasion is when police detectives place on-line ads (e.g. craigslist ads) in which they pose as an attractive woman or prostitute willing to exchange sex for drugs. They then communicate with a person who responds to the ad, set up a meeting in which the person believes he must bring drugs to exchange for sex, and arrest the person who arrives at the meeting with drugs, charging him with possession with intent to distribute the drugs.

The problems with police using this approach to identify and arrest drug dealers are significant. Most importantly, the police cannot know whether the person they catch was already a drug dealer or whether the person only got the drugs because of the police detectives’ request and a desire to have a sexual encounter with a beautiful woman. In other words, when the government uses the promise or suggestion of sex to get a defendant to bring drugs that he did not already have into their jurisdiction, it cannot be known whether the government’s ruse uncovered a criminal or created a new one.

Most states, including Virginia, have an affirmative defense to criminal responsibility for situations in which a person who would not otherwise have committed a crime does so at the urging or insistence of the police. This defense is called entrapment.

In Johnson v. Commonwealth, the Virginia Supreme Court explained the defense of entrapment saying, “The defense of entrapment is, in essence, a rule of fairness that bars the conviction of an accused in the event of improper police conduct” as “[p]olice conduct that constitutes entrapment is contrary to public policy.” Even further back, in 1931, the Virginia Supreme Court stated in Falden v. Commonwealth that, “if an officer, for the sake of reward, promotion, or revenge incites or induces a citizen to commit a crime, then the offender is absolved on the ground that such conduct upon the part of the officer is obnoxious to the fundamental doctrine of public policy.”

While Virginia’s appellate courts have not directly addressed whether police using the promise of sex to induce a person to obtain and deliver drugs constitutes entrapment, there are a lot of reasons to believe that it does.

First, appellate courts in other states that have addressed these types of situations have strongly criticized the government and found that similar scenarios constitute entrapment. In the case of State v. Banks, the Florida Court of Appeals stated that “[w]hen law enforcement agencies utilize confidential informants who use sex, or the express or implied promise thereof, to obtain contraband the defendant did not already possess, there is no way for the courts or anyone else to determine whether such inducement served only to uncover an existing propensity or created a new one.” Another example is the case of People v. Bonner, in which the Appellate Court of Illinois found that the defendant had been impermissibly entrapped by the government because he sold drugs only after an informant, who asked him to sell to them, had sex with him. Similarly, in People v. Wisneski, the Court of Appeals of Michigan found entrapment where a government informant provided sexual favors to a physician, who then provided an improper prescription. The physician had initially refused to write the prescription. The Michigan court explained that, “[t]he real concern in entrapment cases is ‘whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.’”

Second, while the Virginia appellate courts have not directly addressed the issue, a related decision of the Virginia Court of Appeals suggests that the Virginia appellate courts would take a similar view of entrapment as did the courts of Florida, Illinois and Michigan. In Keener v. Commonwealth, the Virginia Court of Appeals indicated that an informant who offered “sexual favors” to get a former boyfriend to participate in a crime “‘might have tended to show entrapment’” and this information should have been presented as evidence to the jury.

When police conduct involves sexual inducement to commit a drug crime, courts in other states have found such conduct to be entrapment. Virginia entrapment law supports the same conclusion here in the Commonwealth. Skilled presentation of this defense, both during pre-trial negotiations with the prosecution and, if necessary, at trial, can be successful and can protect certain defendants from serious felony convictions and jail sentences.

New Virginia Legislation May Provide Parole Remedy After 25 Years to Virginia Juveniles Sentenced to Life or Terms of Years

On February 6, 2018, Virginia Senate Bill 890 passed the Virginia Senate in a 40-0 vote.  This Bill would make juveniles sentenced to life imprisonment, or other long terms of incarceration, eligible for parole after serving 25 years of their sentence. The Bill is now pending in the Virginia House of Delegates.  If it passes the House and is signed into law by the governor, it could go into effect this year.

The legislation appears necessary.  In 2012 and 2016, the U.S. Supreme Court decided two cases which held that imposing life sentences on juveniles without an individualized hearing to determine their capacity for rehabilitation, violates the Eighth Amendment’s prohibition against cruel and unusual punishment.  See Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).  Despite these rulings, only two Virginia inmates sentenced to life for crimes committed when they were juveniles have been resentenced (Randy Ross, resentenced to 99 years in Bedford and Akeem Majeed, resentenced to 26 years in Norfolk).  Further, since these two re-sentencings, there have been a string of legal setbacks for Virginia inmates who received life sentences as juveniles and are now trying to have their sentences re-evaluated.  See e.g. Donte Jones v Commonwealth, 293 Va. 29 (2017)(holding defendant need not be resentenced to a term of years under Miller where trial court had authority to suspend portion of imposed life sentence for capital offense) and Virginia v. LeBlanc, 137 S. Ct. 1726 (2017)(holding Virginia’s geriatric release statute, on habeas review, sufficient to cure Miller violation where statute allows an inmate to seek geriatric release at age 60 after having served at 10 years sentence).

If Senate Bill 890 becomes law, it would provide Virginia inmates who committed crimes as juveniles a remedy specifically approved by the Supreme Court in Montgomery.  In that case the Supreme Court said:

“Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.”

Montgomery v Louisiana, 577 US __(2016)(slip op at 20-21).

King, Campbell, & Poretz currently represents an individual seeking resentencing under Montgomery after having been sentenced to life in prison for offenses committed as a juvenile.  If Senate Bill 890 becomes law, it will provide another way to fight for such clients – by presenting the most detailed and persuasive case to the parole board that their crimes represented “transient immaturity” and that parole release is appropriate and necessary to avoid an Eighth Amendment violation.