Educational Entrapment?

Educational Entrapment? Why not?

Okay, I hear you lawyers out there crying foul and you may be right. Typically, entrapment is a legal defense whose application is limited only to instances where law enforcement officials trick a person into committing a criminal act who otherwise would not have committed it.

First, a little background on the case in question. A principal in New Hampshire confiscated a student's cell phone. As per her standard policy (???) she scrolled through the contact list and called other students. When this didn't yield any results she held onto the phone. A student from a different school text messaged the phone back, which the principal opened. The text message asked, "Yo, need a bag?" The principal messaged back saying she did in fact want a bag and set up a meeting outside her school. The police were called and were waiting for the student when he arrived. They searched him found some drugs and arrested him.  -- Here is a article on it and here is a CNN story (video).

So, where to start with this? 1) a policy of searching students' cel phones is probably illegal (see Klump). It is very possible this arrest was the result of an illegal search (opening the text message) so the student may well get off. 2) Why not call the police? Since when is the principal charged with community drug enforcement? I think this probably should have been handed off to the police the moment it was evident that drugs were going to be involved. You can read the reaction of other local school administrators here.

But, what I want to talk about is the entrapment issue. Now, rest assured this particular case will not win on the entrapment issue. There are a couple of reasons why. First, the school princpal in question worked at a private school, so not a "governmental official" - you will see why that is important in a minute. Second, although the principal's call to the drug dealing student probably triggered the "You need a bag" response, it was still the student that triggered the drug transaction. For entrapment to work, it is the government official that needs to trigger the transaction, not the criminal. So, it will probably not work in this case.

But, could it work in the right case? Perhaps - and let me explain. First, let's look at the language in the most recent Supreme Court case on the issue:

"In their zeal to enforce the law, however, Government
agents may not originate a criminal design, implant in an
innocent person's mind the disposition to commit a criminal
act, and then induce commission of the crime so that the
Government may prosecute." (Jacobson v. U.S.)

"Government agent" is the key language here. Even though later in the opinion the Justices refer to "law enforcement officials" when talking about entrapment, the broad language of "government agent" is probably the controlling language. Teachers, principals and other public school personnel are ... "government agents" under the standard definition. This more broad term of "government" or "governmental official" are used in other Supreme Court cases on entrapment as well (see Mathews & Sorrells)

Now, let's change the facts a little. Let's assume the principal was a public school principal and instead of responding to the text message, she originated the text message to the student asking, "Yo, can you hook me up with a bag?" All the other facts are the same. In this instance, I feel entrapment may be a valid defense even though the student was entrapped by a school official and not a law enforcement officer.

I would have to do more research to be sure, but entrapment by educators seems like a real possibility. This would make for a nice law journal if anyone is interested.

Scott McLeod came across this case this morning and sent it over, so a hat tip to him.

Comments

[Erica Harris]

A lot can be said about this, but before we go into the pertinent details of it all. The student was likely breaking the rule of having a cell phone. By the student having the cell phone it has caused a lot problems to come.

[Justin]

I agree that the kid was doing wrong with the cell phone, but that is not the kid in trouble here. The kid in trouble checked to see what calls he missed, saw that a kid had called, and sent a message back asking if the reason he called was to get some drugs. Clearly, both of these kids are at fault, but that does not excuse the principal in her searches of the student's phone and then her semi-entrapment of the seller. I don't want to make it seem like only the principal was wrong because the kids are at fault too, but the principal also stepped over the line if you ask me.