Catch As Catch Can

A Washington, D.C., plainclothes policewoman contended that Louisiana Democratic Congressman Joe Waggon-ner Jr. drove up in his car and offered to pay her $50 for an oral sex act. Utah Democratic Congressman Allan Howe allegedly approached two Salt Lake City police decoy prostitutes and promised them $20 if they would show him "a little fun" at their place. Former Judge (and failed Nixon Supreme Court nominee) G. Harrold Carswell has been indicted on charges of making advances to a vice-squad policeman in Tallahassee, Fla. Dallas police have accused ex-Army Major General (and right-wing activist) Edwin Walker of public lewdness after he allegedly "fondled" an undercover policeman in a rest room.

One after another, those scandalous stories have made recent headlines. Carswell and Walker have yet to reply formally to the charges other than to indicate their innocence. But both Wag-gonner and Howe have raised a troubling issue by making a counterallega-tion against the police. They claim they did nothing wrong and were subjected to attempted entrapment--the legal principle that can bar a conviction if law-enforcement officials have incited or enticed an individual to commit a crime.

Trap for Whom? Today there seems to be a rise in the number of such claims, but in fact the concept has never enjoyed much judicial support. In 1864 a Judge Bacon of New York remembered that the plea was "first interposed in Paradise: 'The serpent beguiled me, and I did eat.' That defense was overruled by the great Lawgiver, and [it] has never since availed." Well, hardly ever. The defense was recognized for the first time in a federal court in 1915. In two later cases--involving a police agent in 1932 who begged an acquaintance for some bootleg liquor and a paid informer in 1958 who led a reformed addict back to drugs and then got him arrested for dealing--the Supreme Court drew a line "between the trap for the unwary innocent and the trap for the unwary criminal."

While the rule was not exactly defined, it suggested that providing a passive opportunity for crime was O.K., while actively fomenting the crime probably was not. "That line between catching criminals and provoking crime was a simple principle," says University of Chicago Law Dean Norval Morris. "Now it has been blurred." Three months ago, the Burger court held by a 5-to-3 vote that if a person has a "predisposition" to commit a crime, it will be almost impossible for him to claim entrapment successfully, no matter how much inducement to the crime the Government has provided. Under the ruling, says Aryeh Neier, director of the American Civil Liberties Union, "if anyone does anything, you can say there must have been predisposition."

Law-enforcement officials deny that the decision, which reinforced a similar one in 1973, has led to an upsurge in police tactics that flirt with entrapment. Nonetheless, the techniques employed have grown more imaginative, and there is often great care taken to avoid entrapment. A Chicago undercover man, Joseph Saladino, is perhaps the nation's champion operative in the field. While he says "there's no way I can suggest the crime," he has managed to get hired as, among other things, a hit man, a getaway-car driver and an enforcer--and then to nail his employers with convictions. Most innovative and successful of all have been police-run fencing operations in New York, Chicago and Washington (TIME, March 15).

Even critics of the police concede that the use of decoys and undercover cops is necessary, particularly in narcotics and vice investigations. "But much of it goes beyond the bounds of fair police work," complains Chicago Defense Attorney Patrick Tuite. In New York, ousted Special Prosecutor Maurice Nadjari arranged for undercover police to be indicted on phony charges so they could nab judges and others who took bribes to "fix" their cases. In California, Treasury agents obligingly offered to supply suspects with such essentials as paper and ink, then proudly announced arrests growing out of one of the largest hauls of counterfeit money in history.

Many of the better law-enforcement organizations try to police themselves. The Los Angeles and Washington departments have strict guidelines for decoys on prostitute patrols. Plainclothes, for example, means plain indeed--no hot pants or see-through blouses. "The way some of our female officers dress, they look like they couldn't trap a bulldog with two pounds of hamburger," says one Washington cop. But Assistant Los Angeles City Attorney George Eskin concedes that some suggestive acts may not get reported: "The undercover female officer isn't going to say I winked at him and he responded."

Eye on Police. With little outside review, however, there is usually a tendency not to see police abuse. "If you make a million arrests and there is no complaint, there is no entrapment," says a complacent New York City police attorney. Yale Law Professor Joseph Goldstein believes the potential for improper police actions is inevitable as long as the defendant's criminal predisposition is the critical issue. Instead, he writes, judges should focus on "the appropriateness or offensiveness of the police conduct," with emphasis on disapproving actions "that would be criminal for the private citizen." Justice Felix Frankfurter agreed. "The crucial question," he said, "is whether the police conduct ... falls below standards, to which common feelings respond, for the proper use of Government power." But that was 1958, and Frankfurter was writing only for four Justices. His view remains a minority one, and there seems little likelihood that it will soon prevail.

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