Undercover Policing, Overstated Culpability

This Article examines the legal doctrine of “sentencing manipulation,” a claim, raised at the time of sentencing, in which the defendant argues that undercover police officers purposefully encouraged him to commit particular criminal conduct in order to expose him to a higher, and often mandatory, punishment. Currently, the sentencing manipulation claim has no consistent animating theory nor uniform definition or procedural treatment. Based on traditional theories of punishment as well as the systemic interest in an accurate determination of a defendant’s culpability, this Article argues that inducements, used by undercover officers and their agents to encourage the suspect to commit particular criminal conduct, should be the central focus of a reformed sentencing manipulation doctrine. The sentencing manipulation doctrine as currently conceived fails to recognize the potential and problematic impact of police inducements on an assessment of a defendant’s culpability and reflects binary concerns of guilt versus innocence that, while perhaps appropriate for a claim made at trial, are inapposite for a claim made at the time of sentencing. In determining where to draw the line between police inducements that affect a defendant’s culpability and those that do not, this Article also suggests a new way to view police conduct — on a continuum ranging from conduct that “facilitated culpability” to conduct that “overstated culpability.” A reformed doctrine of sentencing manipulation, as proposed by this Article, appropriately directs courts’ focus to inducements used by the police or their agents that result in the overstatement of a defendant’s culpability, and to offense conduct which should therefore be removed from the sentencing calculus.