Hampton v. United States

Mr. Justice Powell,

with whom Mr. Justice Black-mun joins, concurring in the judgment.

Petitioner, Charles Hampton, contends that the Government’s supplying of contraband to one later prosecuted for trafficking in contraband constitutes a per se denial of due process. As I do not accept this proposition, I concur in the judgment of the Court and much of the plurality opinion directed specifically to Hampton’s contention. I am not able to join the remainder of the plurality opinion, as it would unnecessarily reach and decide difficult questions not before us.

In United States v. Russell, 411 U. S. 423, 431 (1973), we noted that significant “difficulties [attend] the notion that due process of law can be embodied in fixed rules.” See Rochin v. California, 342 U. S. 165, 173 (1952); cf. Sherman v. United States, 356 U. S. 369, 384-385 (1958) (Frankfurter, J., concurring in result). We also recognized that the practicalities of combating the narcotics traffic frequently require law enforcement officers legitimately to supply “some item of value that the drug ring requires.” 411 U. S., at 432 . Accordingly, we held that due process does not necessarily foreclose reliance on such investigative techniques. Hampton would distinguish Russell on the ground that here contraband itself was supplied by the Government, while the phenyl-2-propa-none supplied in Russell was not contraband. Given the *492 characteristics of phenyl-2-propanone, 1 this is a distinction without a difference and Russell disposes of this case.

But the plurality opinion today does not stop there. In discussing Hampton's due process contention, it enunciates a per se rule:

“[In Russell,] [w]e ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established.” Ante, at 488-489. (Emphasis supplied.)

“The remedy of the criminal defendant with respect to the acts of Government agents, which . . . are encouraged by him, lies solely in the defense of entrapment.” Ante, at 490. (Emphasis supplied.)

The plurality thus says that the concept of fundamental fairness inherent in the guarantee of due process would never prevent the conviction of a predisposed defendant, regardless of the outrageousness of police behavior in light of the surrounding circumstances.

I do not understand Russell or earlier cases delineating the predisposition-focused defense of entrapment 2 to have *493 gone so far, and there was no need for them to do so. In those cases the Court was confronted with specific claims of police “overinvolvement” in criminal activity involving contraband. Disposition of those claims did not require the Court to consider whether overinvolvement of Government agents in contraband offenses could ever reach such proportions as to bar conviction of a predisposed defendant as a matter of due process. 3 Nor have we had occasion yet to confront Government overinvolvement in areas outside the realm of contraband offenses. Cf. United States v. Archer, 486 F. 2d 670 (CA2 1973). In these circumstances, I am unwilling to conclude that an analysis other than one limited to predisposition would never be appropriate under due process principles. 4

The plurality’s use of the “chancellor’s foot” passage from Russell, ante, at 490, may suggest that it also would foreclose reliance on our supervisory power to bar conviction of a predisposed defendant because of outrageous police conduct. Again, I do not understand Russell to *494 have gone so far. There we indicated only that we should be extremely reluctant to invoke the supervisory power in cases of this kind because that power does not give the “federal judiciary a ‘chancellor's foot' veto over law enforcement practices of which it [does] not approve.'' 411 U. S., at 435 , quoted ante, at 490.

I am not unmindful of the doctrinal 5 and practical 6 *495 difficulties of delineating limits to police involvement in crime that do not focus on predisposition, as Government participation ordinarily will be fully justified in society’s “war with the criminal classes.” Sorrells v. United States, 287 U. S. 435, 453 (1932) (opinion of Roberts, J.). This undoubtedly is the concern that prompts the plurality to embrace an absolute rule. But we left these questions open in Russell , and this case is controlled completely by Russell . I therefore am unwilling to join the plurality in concluding that, no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case where the Government is able to prove predisposition. 7

Although phenyl-2-propanone is not contraband, it is useful only in the manufacture of methamphetamine (“speed”), the contraband involved in Russell . Further, it is an essential ingredient in that manufacturing process and is very difficult to obtain. United States v. Russell, 411 U. S. 423, 425-427 (1973); id., at 447 (Stewart, J., dissenting).

I agree with the plurality that Russell definitively construed the defense of “entrapment” to be focused on the question of predisposition. “Entrapment” should now be employed as a term of art limited to that concept. See ante, at 488-489. This does not mean, however, that the defense of entrapment necessarily is the only doctrine relevant to cases in which the Government has encouraged or otherwise acted in concert with the defendant.

The entrapment defense was first recognized in the context of simple solicitation of an individual to sell contraband. See, e. g., Sherman v. United States, 356 U. S. 369 (1958); Sorrells v. United States, 287 U. S. 435 (1932). In Russell and in this case, however, we have been confronted with the Government’s supplying of contraband in the course of an investigation. Official involvement in contraband offenses has reached more intensive levels than those revealed in this Court’s cases. See Greene v. United States, 454 F. 2d 783 (CA9 1971).

Judge Friendly recently expressed the view:

“[T]here is certainly a [constitutional] limit to allowing governmental involvement in crime. It would be unthinkable, for example, to permit government agents to instigate robberies and beatings merely to gather evidence to convict other members of a gang of hoodlums. Governmental ‘investigation’ involving participation in activities that result in injury to the rights of its citizens is a course that courts should be extremely reluctant to sanction.” United States v. Archer, 486 F. 2d, at 676-677 (footnote omitted).

The plurality finds no source for a doctrine limiting police involvement in crime. Ante, at 490-491; cf. United States v. Russell, 411 U. S., at 430-431 . While such a conclusion ultimately might be reached in an appropriate case, we should not disregard lightly Mr. Justice Frankfurter’s view that there is a responsibility “necessarily in [the Court’s] keeping ... to accommodate the dangers of overzealous law enforcement and civilized methods adequate to counter the ingenuity of modern criminals.” Sherman v. United States, supra, at 381 (concurring in result). In another context Mr. Justice Frankfurter warned that exclusive focus on predisposition creates the risk that the Court will “shirk” the responsibility that he perceived. Ibid.

The discussion of predisposition, for example, often seems to overlook the fact that there may be widely varying degrees of criminal involvement. Taking the narcotics traffic as an example, those who distribute narcotics — the “pushers” — are the persons who, next to those who import or manufacture, merit most the full sanction of the criminal law. Yet, the criminal involvement of pushers varies widely. The hardcore professional, in the “business” on a large scale and for years, is to be contrasted with the high-school youth whose “pushing” is limited to a few of his classmates over a short span of time. Predisposition could be proved against both types of offenders, and under the flat rule enunciated today by the plurality the differences between the circumstances would be irrelevant despite the most outrageous conduct conceivable by Government agents relative to the circumstances. A fair system of justice normally should eschew unbending rules that foreclose, in their application, all judicial discretion.

I recognize that, if limitations on police involvement are appropriate in particular situations, defining such limits will be difficult. But these difficulties do not themselves justify the plurality’s absolute rule. Due process in essence means fundamental fairness, and the Court’s cases are replete with examples of judgments as to when *495 such fairness has been denied an accused in light of all the circumstances. See, e. g., Rochin v. California, 342 U. S. 165 (1952); Ham v. South Carolina, 409 U. S. 524 (1973). The fact that there is sometimes no sharply defined standard against which to make these judgments is not itself a sufficient reason to deny the federal judiciary’s power to make them when warranted by the circumstances. Rochin v. California, supra, at 169-172 . Much the same is true of analysis under our supervisory power. Nor do I despair of our ability in an appropriate case to identify appropriate standards for police practices without relying on the “chancellor’s” “fastidious squeamishness or private sentimentalism.” Id., at 172 ; see Sherman v. United States, supra, at 384-385 (Frankfurter, J., concurring in result); cf. Rochin v. California, supra, at 172 .

I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction. This would be especially difficult to show with respect to contraband offenses, which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement au *496 thorities in dealing effectively with an expanding narcotics traffic, cf. United States v. Russell, supra, at 432 ; L. Tiffany, D. McIntyre, & D. Rotenberg, Detection of Crime 263-264 (1967), which is one of the major contributing causes of escalating crime in our cities. See President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 221-222 (1967). Enforcement officials therefore must be allowed flexibility adequate to counter effectively such criminal activity.