Sentencing Entrapment and Manipulation

Sentencing entrapment and manipulation are both claims of injustice that can be made by a defendant during sentencing if they feel they were encouraged to commit a serious crime by authorities or if they committed or are facing a higher sentence than necessary.

Sentencing entrapment & manipulation

Sentencing Entrapment

Photo by: Matt Lord

According to the case of Leech v. State, “Sentencing entrapment is said to occur when the State causes a defendant initially predisposed to commit a lesser crime to commit a more serious offense.” Sentencing manipulation on the other hand is defined as “when the government engages in improper conduct that has the effect of increasing a defendant’s sentence.” (United States v Garcia). Although Sentencing entrapment and sentencing manipulation have slightly different meanings, they are often used interchangeably in court.

Drug busts

Sentencing entrapment and manipulation can occur during organized stings or through the encouragement or persuasion of an officer or informant. All too often these cases of inflating offenses involve drugs. When drugs are involved, there are several ways in which a simple drug charged could be blown up to become something more.

• An undercover agent may know a suspect is a known drug user but not a dealer. By asking the suspect to sell drugs to the undercover officer, he can then be charged with not only possession but also distribution.

• The same bloating of charges can occur if someone sells narcotics and the agent asks the suspect to sell more to have them reach a distribution amount that carries higher penalties.

• In the case of Unites States v. Walls, the undercover DEA agent asked the suspect to supply him with crack and was given powdered cocaine instead. After insisting that he wanted crack and not cocaine, the suspect then complied and had it cooked by a third party. When asked in court why the DEA agent requested crack from the suspect and not cocaine, the agent’s reply was: “Well, crack cocaine is less expensive than [powder] cocaine, and we felt like through our investigation, that it takes fifty grams of crack cocaine to get any target over the mandatory ten years.”

Prostitution

Photo by: Nils Hamerlinck

Prostitution is another common area where sentencing entrapment and manipulation arise frequently; such was the case of Taylor Hummel of southern Utah. Hummel was actively soliciting sex from adults, but through his internet ad and other communication he never stated he wanted children involved. The undercover agent offered prostitution services to which Hummel agreed. The agent then offered a 13 year old girl to be involved with the sexual exploits as well. Hummel was hesitant but did not decline. When the time for the exchange took place, Hummel mentioned he had reservations about a minor being involved and did not pay for sexual services from her. Although he only sought and paid for adult prostitution (Class B misdemeanor) he was still charged with conspiracy to commit child rape (a first degree felony). Had the offer not been made by an undercover agent, Hummel may never have even thought of including minors in his sexual addictions.

The Big Fish story

For whatever reason or hidden agenda, sometimes the crime that a suspect is recognized as being guilty of is not sufficient. It is then that sentencing entrapment and manipulation occurs by officers who wish to create a more serious offense to snare the suspect with. There are several theories as to why police officers would want to be involved in sentencing entrapment.

• Acknowledgement or a pat on the back from their department and the public if the officer helps bring in a serious offender, or “the big fish”;

• The not-talked-about “quotas” that they are unofficially expected to meet;

• Increased chance of promotions or even incentives such as bonuses for making a certain type of arrest; or possibly

• Overtime pay. Many precincts give their officers overtime pay if they are forced to work past their shift in order to complete the arrest and the paperwork that follows. Additionally, overtime pay is often given to law enforcement to be present or even on-call during a court hearing that results from an arrest.

Outrageous official conduct

Photo by: Martin Fisch

Sentencing entrapment and manipulation has been referred to as “outrageous official conduct [that] overcomes the will of an individual” (United States v Jacobsen). In many cases, if officers would have refrained from getting involved to expand a crime or not created a major illegal opportunity to entrap someone in, that person may have gone on to never committing that crime in their lifetime. Instead, many victims of sentencing entrapment and manipulation will spend a lifetime in jail for the inflated offenses.

Legal counsel

Anyone who is facing charges where they feel law enforcement used entrapment or manipulation to increase their possible sentencing is encouraged to seek legal counsel. If someone has committed a crime, they should only have to face those crimes in court, not the top sentencing, inflated version of it.

All Have the Right to a Trial by Jury

Having a trial by jury is a Constitutional right bestowed upon all persons facing jail time with criminal charges.

Sixth Amendment rights

Trial by Jury

Photo by: Frits Ahlefeldt Hiking.org

According to the Sixth Amendment to the Constitution of the United States, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed”.

The default

Although everyone is entitled to a trial by jury, all too often cases are tried by a single judge instead of a panel of peers. Utahcourts.gov states “Depending on the type of action, a case may be tried before a judge (bench trial) or before a jury with a judge presiding. “ The option of a trial by jury is there for everyone, but defendants without proper counsel may be unaware of that right at first and miss their window of opportunity.

Constitutional rights with an expiration

Photo by: Chris Betcher

Photo by: Chris Betcher

A trial by jury is available to those facing jail time due to felonies or misdemeanors; however depending on the charges, this Constitutional right expires if not claimed in a set amount of time. Rule 17 of the Utah Rules of Criminal Procedure explains that:

“(c) All felony cases shall be tried by jury unless the defendant waives a jury in open court with the approval of the court and the consent of the prosecution.

(d) All other cases shall be tried without a jury unless the defendant makes written demand at least 14 days prior to trial, or the court orders otherwise. No jury shall be allowed in the trial of an infraction.”

Trial by jury or judge?

A trial by jury is an option for all defendants facing serious charges, but when is the right time to take advantage of this Constitutional right? Ultimately it is up to the defendant to decide whether a trial by jury is the right call for their case but it is always recommended to be represented by a knowledgeable criminal defense attorney to ensure that the best decision for a trial is made.

Drivers Cautioned of Increased Risk of Auto-Pedestrian Accidents

As thousands of Utah children head to the streets after dark tonight, drivers are cautioned to be extra attentive to the increased risk of auto-pedestrian accidents on Halloween.

Halloween hazards

Photo by: Srdjan Jovanovic

Photo by: Srdjan Jovanovic

Each holiday has hazards that are somewhat distinctive to that holiday alone. Independence Day sees a large amount of accidental fires and burn victims while there is always an uptick of drunk drivers on holidays such as New Year’s Eve. Unfortunately on Halloween there are more auto-pedestrian accidents than any other holiday and most of the victims involved are children.

Increased auto-pedestrian accidents and deaths

A 20 year study by the Centers for Disease Control and Prevention states: “Overall, among children aged 5-14 years, “an average of four deaths occurred on Halloween during [the hours of 4 p.m. through 10 p.m.] each year, compared with an average of one death during these hours on every other day of the year.” According to the CDC, this drastic surge of auto-pedestrian accidents and deaths on Halloween is likely due to these factors:

• Most of the foot traffic is at night compared to daytime when children are usually outside;
• Kids are less likely to cross at crosswalks and will take the fastest route to the next house which can often take them into the roadway on blind corners and between parked cars;
• Many costumes children wear are dark colored making it harder for drivers to see them;
• Children may be too distracted to be aware of vehicle dangers;
• Young trick-or-treaters may be unable to cross the street swiftly enough;
• Masks and other costumes may limit a child’s vision and hearing;
• Young children may not fully understand the danger of cars; and
• Some kids may not realize that they can be hurt, even in a crosswalk.

Criminal charges for drivers involved

Drivers are expected to be extra vigilant when driving on the evening of Halloween. Although most auto-pedestrian accidents are not deliberate, drivers who are involved may end up facing charges for their role, especially if a death occurs. The charges could be both criminal and civil and can range from misdemeanors to felonies, depending on the severity of the incident and whether negligence or impairment was involved. Drivers who are involved in auto-pedestrian accidents are urged to speak with a criminal defense attorney immediately.