By Monu Bedi. Full text here.
“I was just following orders,” and, “The government made me do it,” are phrases from two different criminal law defenses: obedience to orders and entrapment. A military defense, obedience to orders allows a soldier to escape liability by arguing that she was obeying orders when she committed the supposed crime. The civilian defense of entrapment allows a defendant to escape liability by arguing that the police pressured her to commit the crime. Despite the fact that both defenses require a level of government involvement, courts and scholars alike have treated these defenses differently. This Article finally addresses this inconsistency and reorients obedience to orders to more closely resemble entrapment.
Currently, obedience to orders carries dual subjective and objective requirements, similar to other civilian criminal law defenses such as mistake of law and duress. A defendant must have a good faith belief and, more importantly, this belief must pass a reasonable person standard. The purpose behind objectively scrutinizing the defendant’s state of mind is to promulgate a uniform community standard for private citizens. But unlike obedience to orders, where disobeying an order could lead to criminal sanction, neither mistake of law nor duress involves any level of government pressure or coercion.
Entrapment serves as the better model for this defense because both entrapment and obedience to orders involve government agents pressuring citizens to commit crimes. Courts use two different tests for entrapment, but neither carries an objective scrutiny component targeting the defendant’s state of mind. The rationale here centers on the fact that the government plays a key role in the crime, so there is less reason to promulgate a uniform community standard. The same respective tests and underlying reasoning should apply with equal or greater force in the obedience to orders case. This Article presents the first workable reconceptualization along these lines—one that better serves soldiers caught between disobeying an order and committing a crime.