K. Entrapment
The defense of entrapment seems not to have been available in South Carolina prior to 1961. Affirming a conviction for unlawful sale of liquor in which the jury had been instructed that the fact that the sale had been induced for purposes of prosecution was no defense, the Court observed that even though they did not "approve of the prosecution inducing any one to violate the law in order that he may be caught, yet there are times that it is the only way that a violator of the law can be entrapped." State v. Rippey, 127 S.C. 550, 551, 122 S.E. 397 (1924).
1. The Basic Definitions
South Carolina first recognized the defense of entrapment in State v. Jacobs, 238 S.C. 234, 119 S.E.2d 735 (1961). State courts, of course, are not bound by the federal courts' definition of the defense of entrapment because that represents only substantive federal criminal law and is not mandated by the Constitution. Nevertheless, state courts may look to the federal courts for guidance. Because the South Carolina Supreme Court was dealing with the defense of entrapment for the irst time in Jacobs, it relied on the then two leading cases of the United States Supreme Court on the subject of entrapment: Sorrells v. United States, 287 U.S. 435 (1932), and Sherman v. United States, 356 U.S. 369 (1958).
Referring to Sorrells, the Court in Jacobs defined entrapment as the "conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer." 238 S.C. at 244, 119 S.E.2d at 740. In a further clarification of the meaning of entrapment, the Jacobs Court quoted from Sherman that "the fact that government agents 'merely afford opportunities or facilities for the commission of the offense does not' constitute entrapment. Entrapment occurs only when the criminal conduct was 'the product of the creative activity' of law-enforcement officials." 238 S.C. at 245, 119 S.E.2d at 740-41 (emphasis in original) (citation omitted).
In the test formulated by the majority opinions in both Sorrells and Sherman, and apparently adopted by the South Carolina Supreme Court, the focus is on the character of the defendant; the question is whether he was an otherwise innocent person, or whether he was predisposed to commit this type of crime. It is a subjective standard. What was the predisposition of this particular person? If he had the predisposition to commit the offense before being approached by the governmental agents, then he does not qualify for the defense of entrapment.
The concurring opinions in Sorrells and Sherman suggest an alternative approach to entrapment, emphasizing, not the defendant's character and predisposition, but the conduct of the police. The pertinent question in the minority test for determining entrapment is whether the police conduct was such that people who would not ordinarily engage in forbidden conduct would be so induced. This is an objective test which focuses on the nature of the conduct of the alleged entrappers regardless of the defendant's predisposition.
In United States v. Russell, 411 U.S. 423 (1973), the Court reaffirmed the principles laid down in Sorrells and Sherman by reversing a lower court decision which had expanded the traditional concept of entrapment. This broadened concept would have required a criminal prosecution to be dismissed whenever the court determined that there had been an "intolerable degree of governmental participation in the criminal enterprise." Id. at 427. There were two alternative theories in this new defense: first, entrapment might be found, regardless of the defendant's predisposition, whenever the government supplies contraband to the defendants, and, second, a government agent may become so involved in the criminal activity that prosecution would be "repugnant to the American criminal justice system."
While a minority of jurisdictions use this broader formulation of the defense, e.g., People v. Turner, 210 N.W.2d 336 (Mich. 1973), South Carolina follows the majority approach typified by the majority opinions in Sorrells, Sherman, and Russell. As pithily encapsulated by the Court, the defendant must establish "that he was induced to commit the act for which he is being prosecuted." Babb v. State, 240 S.C. 235, 237, 125 S.E.2d 467, 467 (1962), cert. denied, 375 U.S. 979 (1964) (emphasis added).
In State v. Haulcomb, 260 S.C. 260, 195 S.E.2d 601 (1973), appeal dismissed, 414 U.S. 886 (1973), the Court observed that the following instruction by the trial court correctly defined the defense of entrapment: "Where one is instigated, induced or...
