442 A2D 1377 - Harrison v. State

QUILLEN, Justice,

¶1dissenting:

¶2I confess shock at the absence of a clear federal constitutional restriction on the material inducement that a law enforcement officer or his agent can offer to another to get the other to commit a crime.1 While some of the same considerations are present, the question of a constitutional restriction is necessarily entirely separate from any legislative or common law intent as to the defense of entrapment.2 The independence arises necessarily from the language of the Fourteenth Amendment, “nor *1389shall any State deprive any person of life, liberty, or property, without due process of law”. The United States Supreme Court has said:

“... Judicial review of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.”

¶3Malinski v. New York, 324 U.S. 401, 416-417, 65 S.Ct. 781, 789, 89 L.Ed. 1029 (1945). That is a different question than the question of legislative intent in the defense of entrapment.

¶4I recognize that abuse is rampant in defense claims of entrapment. I also recognize that the recent, well publicized, despicable conduct of certain public officials in the ABSCAM cases has made entrapment related defenses particularly unpopular nationally. Nor can I disagree with the majority here as to our particular statutory defense of entrapment. The history of the statute and the placing of the burden of proof on the defendant in the affirmative defense classification demonstrate the factual nature of the inquiry into the origin, inducement and disposition issues.3

¶5But I would have thought, given the frailty of mankind, that one difference between our society and totalitarian societies would be a constitutional recognition that government should not have the power to extend limitless temptation to make the average citizen a criminal, subject, at the State’s discretion, to the loss of liberty and property.4 We have enough crime without giving the State unlimited power to buy more. In other societies, particularly the Soviet Union, government sponsored corruption and related selective law enforcement are used as a means to perpetuate State subjugation of the citizenry. Under such a system everyone becomes subject to prosecution at the whim of the State.5 Failure to clearly recognize a similar potential evil in State sponsored crime in the entrapment context, in my opinion, is a glaring void in our constitutional case law. There is something fundamental at stake.

¶6The majority opinion has reviewed the prevailing federal authorities. In my judgment, the United States Supreme Court decisions are inconclusive as to the constitutional limit on government inducement of criminal activity.6 Although perfectly legitimate, I consider it foreign to a sense of order in American law for each State jurisdiction to interpret general constitutional concepts as frolics of its own. Thus, I *1390would, at this point, avoid the expediency of turning to our State Constitution.7 Rather, given the depth of the shock to a just sense of ordered liberty and the lack of definitive due process statements from the United States Supreme Court in the entrapment context, I with considerable embarrassed reluctance, presumptuously take the opportunity to minimally suggest that federal due process may be touched when the State, in a transaction of illegal drug delivery, induces a citizen through State bribery to be a State sponsored criminal conduit between a State sponsored supplier and a State sponsored recipient. The crime of illegal delivery is clearly being committed by the State. In my judgment, before the State can criminally convict the conduit, its own agent, it should, as a matter of constitutional law before the trial judge,8 be prepared to demonstrate it had reasonable grounds to suspect the defendant was engaging in criminal activity related to the State originated crime 9 or the State should be prepared to demonstrate that there had existed so significant a threat to the public order that there was no reasonable alternative to its investigative tactic.10 Lacking such a nonjury showing before the trial judge, the conduct, in my opinion, is outrageous and violates due process.11 Fundamental fairness should not permit a conviction.

¶7In the instant case, I would reserve jurisdiction and remand the case to the Trial *1391Judge to conduct a due process hearing and to make the necessary findings of fact and rulings of law. Thus, I would require a due process focus by the Trial Judge before rendering appellate judgment. By this separate opinion, I do not intend to suggest what the result of that focus would or should be in this case,

¶8. I emphasize that my shock is directed to the law and not to this particular police activity. It is the courts that have failed to provide clear constitutional guidelines with regard to due process claims.

¶9. I recognize with deference that a three Justice plurality of the United States Supreme Court in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) denied the existence of a due process right of a defendant beyond the federally recognized defense of entrapment. Under that federal defense, the defendant’s “conceded predisposition” was said to render the entrapment defense, and derivatively the due process defense, unavailable. But in summarily denying that police conduct might deprive the defendant of a “right secured to him by the United States Constitution”, the plurality opinion is singularly unconvincing. Significant contrary considerations have weighed heavily, at least in the entrapment context, on the minds of Brandéis, Holmes, Frankfurter, Harlan, Douglas, Black and Stewart. See Justice Brennan’s dissent in *1389Hamptonand Justice Douglas’s and Justice Stewart’s dissents in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The views expressed in this dissent may be in error but I am satisfied that they are not idiosyncratic.

¶10. Compare the Proposed Criminal Code with Commentary (1973) § 432 with the current 11 Del.C. § 432. In particular, I find nothing to indicate that the “not otherwise disposed to do so” issue was intended to be judged solely by the defendant’s conduct prior to the governmental contact.

¶11. It is not a complete answer, in my opinion, to say that people should not commit crimes. Besides normal human sinfulness in face of monetary reward, there can be weakness due to numerous pressing variables such as illness in the family, overwhelming educational expenses or, in the case of a prison guard, limited salary and limited opportunity for advancement in a difficult work environment. These factors do not justify crime but, absent justification, it should not be the State that preys on the citizen’s weakness.

¶12. See Katsenelinboigen, “Coloured Markets in the Soviet Union”, Soviet Studies, vol. XXIX, no. 1, January 1977, 62-85. See also Judge Aldisert’s dissent in United States v. Jannotti, 673 F.2d 578 (1982) (en banc).

¶13. It is particularly noted that the plurality opinion in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), is limited to three Justices. Five Justices, two in concurrence and three in dissent, recognized a role for due process in the entrapment context even if the defendant was otherwise disposed to commit the crime. I recognize that the factual situation in Hamptonis similar to this case and therefore the concurring opinion can be viewed as contrary to this dissent. But the whole context of Hamptonfocused on the contention “that the Government’s supplying of contra*1390band to one later prosecuted for trafficking in contraband constitutes a per se denial of due process.” Justice Powell’s concurrence in particular must be judged in that limited context. I suggest in this dissent that we should explore the constitutional issue beyond that context.

¶14. It is, of course, open for State courts to interpret State constitutions to provide greater rights than the corresponding provisions in the federal Constitution. Goddard v. State, Del. Supr., 382 A.2d 238, 240, n. 4 (1977). See also Hunter v. State, Del.Supr., 420 A.2d 119, 134, n. 4 (1980) (Quillen, Justice, dissenting).

¶15. As I see it, the due process issue is an issue of constitutional law for the trial judge. Thus, matters which might be considered prejudicial, if placed before the jury, can be freely heard and evaluated. In the instant case, for example, the source of the rumors relating to the defendant’s involvement in illegal drug traffic could be weighed in judging the State’s actions.

¶16. This would be a lesser standard than probable cause to arrest. It is a standard that has proved workable under our arrest law. State v. Deputy, Del.Supr., 433 A.2d 1040, 1042-1043 (1981). See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

¶17. It is impossible, of course, to foresee every situation and, as related to the instant case, drug use in a prison could constitute a significant threat. The nature of the defendant’s official position should also be considered. Thus, a strict standard of reasonableness would still supply needed flexibility.

¶18.Compare the concurring opinion of Justice Powell and the dissenting opinion of Justice Brennan in Hampton, supra.The modest due process threshold suggested here would have been met on the basis of the informant’s testimony in Hamptonand in an overwhelming number of entrapment cases. Compare also United States v. Twigg, 3d Cir., 588 F.2d 373, 378-379 (1978) and Greene v. United States, 9th Cir., 454 F.2d 783, 787 (1971). The focus of due process inquiry has been on (1) whether government supplied contraband per se mandates dismissal or acquittal or (2) whether the degree and character of governmental activity is outrageous. Nothing herein is intended to take issue with the rejection of the first by a majority of the United States Supreme Court or the approval of the second by a different majority of the same Court. Admittedly, I am suggesting a different focus dictated by the present factual record in this case but it is one which draws by analogy on existing precedent in an attempt to provide some measure of citizen protection without interference with legitimate law enforcement. To suggest, as does the Third Circuit majority in Jannotti, supra, that such an inquiry is an invasion of the province of the law enforcing executive branch is, in my opinion, to misconstrue the fundamental role of the judicial branch. The protection of the individual citizen against a prosecuting State is not “more appropriately considered through the political process where divergent views can be expressed in the ballot box.” Compare Jannotti, 3d Cir., Nos. 81-1020 & 81-1021, slip op. at 66 at-(Feb. 11, 1982) (en banc).

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