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There are now 5 comments... what are your thoughts?
  1. Neolithicman says

    I have a question.
    Let’s say I’m selling painkillers that I was prescribed by a doctor (I’m not). I was prescribed them for a legitimate reason, and this isn’t something I usually do. One day, an undercover police officer offers to buy from me, but stipulates that I have to sell to him next to a specific pharmacy that, unbeknownst to me, is near a school. If they arrest me, and charge me for dealing and for dealing near a school, is that entrapment? I wouldn’t have sold near a school by choice, and I only did so because the undercover officer told me to.

    • You’re already committing the crime of sale before the undercover got involved. You clearly weren’t entrapped as to the first charge of simple dealing.

      With respect to the school charge, let’s presume you never would have sold near a school on purpose, and the only reason you did so here was because you didn’t know the location was near a school.

      That’s not really an entrapment issue, but one of mistake. The undercover didn’t overcome your free will and force you to do it. You did it freely. You were merely mistaken about the circumstances in which you did it.

      That mistake of fact is only going to be useful to the extent it negates any necessary mens rea. For example, if the statute requires you to know that it was near a school — well, you didn’t know, so that would mean you didn’t commit that offense in the first place. But if (as is more likely) the statute doesn’t care whether you knew there was a school nearby, then your mistake is irrelevant.

      • So the fact that the police officer had to go out of their way to get you to do it by a school, instead of somewhere else, is irrelevant?

    • I’ve read some funny things about those “near a school” laws. I’ve read that they’ve increased the distance quite a lot since they were first drafted, to the point that it’s actually hard for dealers to find somewhere that isn’t “near” a school. That’s lead to the farcical sounding situation where dealers will stick close to schools, since then if caught they’ll only get one count rather than the two or three counts they’d get if they moved further away. I don’t know if it’s true, but it’s not like the law hasn’t created some weird circumstances in the past.

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