NCJ Number
75995
Journal
Criminal Law Bulletin Volume: 17 Issue: 1 Dated: (January-February 1981) Pages: 69-72
Date Published
1981
Length
4 pages
Annotation
This article examines three aspects of the Abscam 'sting' that were called into question: the leaking of the charges in advance of grand jury action; the method of selecting members of Congress for attempted bribing; and the act of attempting to bribe that was viewed by some as entrapment.
Abstract
The easiest criticism to accept is that of exposing the tentative fruits of an ongoing criminal investigation. However, the objection to the method of selecting those to whom bribes were to be offered is more difficult to credit. The predicate for the objection is that it is inappropriate to offer any person an opportunity to engage in crime without having some reason to suspect that the person is a potential criminal. However, according to the Department of Justice, investigators were led to particular members of Congress by representations, from those discovered in a conventional undercover operation in stolen goods, that they could also deliver political favors. Some have suggested that allegations of criminals should not be considered. However, it is one thing to say that these tipsters might be impeached as witnesses in a trial of any resulting indictment; it is another to forbid an investigation to proceed if premised on a report from one who could be impeached. As to the final criticism of entrapment, a person could be considered entrapped, only if indisposed to commit crimes of that nature and if induced by activities of an agent to do so. However, a competing view of entrapment asks whether the Governmental action was capable of ensnaring innocents and, if it was, the tactic should be forbidden as improper law enforcement. One difficulty with this minority test is in determining what kind of hypothetical innocent it should employ. The next difficulty is in assessing when the profit is so extraordinary as to be capable of seducing the law abiding. Applying this to Abscam, while $25,000 is surely a profit that could lure an innocent into some kinds of criminality, it seems to be appropriate to say that a hypothetical innocent public official would not be enticed. A consequence of the contrary view would be to insulate those in high-paid crime from undercover activity. Further, a judicial holding setting a certain price as the maximum which could be offered without creating a risk of entrapment would have the effect of setting a minimum price for those criminals wishing to avoid prosecution. For both these reasons the minority test of entrapment ought either to be rejected or to be construed so as to permit undercover efforts to uncover serious crime. Finally, since crimes of official corruption have no victim, if subversion of Governmental process is to be discovered, it must be by undercover activity. Footnotes are included. (Author abstract modified)