Wednesday, November 3, 2010


The recent conviction of four men for plotting to blow up a New York synagogue presents one of the most peculiar and most troubling aspects of our criminal justice system, one which takes on new significance in the context of efforts to defend ourselves against terrorist attacks. The four were convicted for participating in a plot paid for and, for the most part, organized by a government informer. No synagogue was blown up. Indeed no one was harmed by the defendants' actions.

Lawyers representing defendants in such cases generally raise the defense of “entrapment,” arguing that their client was an innocent person caught in a web spun by the government to entrap them in criminal activity. In this case, the evidence showed that the defendants, poor persons, were promised $250,000 for their participation in the "conspiracy."

Under the law of entrapment, the government is not permitted to “originate a criminal design, implant the disposition to commit the charged criminal act into an innocent person’s mind, and then induce the person to commit the crime,” according to U.S. District Judge Colleen McMahon, who presided over the trial. It can, however, use undercover agents or paid informants to enforce laws and “resort to artifice and stratagem in order to catch persons who are criminally minded.”

Apparently, the critical distinction is between a person with an “innocent” as opposed to a “criminal” mind. What does that mean? The distinction on the one hand seems to be religious, yet most Western religions are premised on the fact that we are all sinners and can achieve innocence only through God’s Grace.

Is Judge McMahon saying that two people can do the exact same thing, but one is innocent and one is guilty because of a judgment about the state of their minds? And how is such a judgment to be made? If a person says that the impoverished conditions in which so many people live here and in other parts of the world create a breeding ground for terrorists, is that evidence of a less than innocent mind? Can membership in a particular ethnic or religious group be evidence of a criminal mind? There are many Americans who believe that Muslims have minds that, if not criminal, are surely not innocent.

The question of criminal or innocent minds is, of course, most relevant to prosecution for participation in a conspiracy. Under our conspiracy laws, a person can be charged and convicted if he or she agrees with the conspiracy’s object and commits an overt act in furtherance of it. In such a circumstance there is a critical difference between someone who shares the conspiracy’s objects and one who, perhaps, doesn’t even know of them but is simply asked by a friend to get some electrical wire from the hardware store down the street.

But what if the "conspiracy" is organized by a government informer whose object is not to blow up the synagogue, but to arrest persons with “guilty minds?” The threshold question, in my mind, is whether under such circumstance a crime has occurred at all. The mind of the defendant seems entirely irrelevant.