NOTE: This article was updated to explain how the Cannabis Regulation and Tax Act changed Illinois law. After this Act took effect on January 1, 2020, Illinois made cannabis legal to possess and use recreationally, not just medically. But it remains largely unlawful to deliver cannabis or possess cannabis with intent to deliver.
Illinois law provides certain affirmative defenses to specific people accused of crimes. One of these defenses is entrapment, which alleges generally that the police are responsible causing the defendant to commit the offense.
Entrapment is often raised in cases of online solicitation of a child (e.g., where an undercover police officer poses as a minor on the internet and lures the defendant to meeting for a sexual encounter), possession of a controlled substance with intent to deliver (e.g., where an undercover officer is involved in purchasing drugs from the defendant), and prostitution (e.g., where an undercover cop pretends to be a prostitute and offers sexual services to the defendant).
Starting in 2020, cannabis is legal to possess and use recreationally in Illinois, subject to certain restrictions. But unless authorized under state law, it remains a crime to possess cannabis with intent to deliver. As a result, it remains possible for a defendant to face charges for possession of cannabis with intent to deliver for a transaction involving an undercover police officer.
720 ILCS 5/7-12
The statute on entrapment provides the following: A person is not guilty of an offense if their conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of that person. However, this section is inapplicable if the person was pre-disposed to commit the offense, and the public officer or employee, or agent of either, merely affords an opportunity or facility for committing an offense. See 720 ILCS 5/7-12.
Entrapment is an affirmative defense. This means that, prior to trial, the defendant must inform the State that they plan to assert an affirmative defense. In order to assert entrapment as a defense, the defendant must admit that they did in fact commit the crime in question. If the defendant meets their burden of proving that they were induced by the public officer to commit the crime, then the State must show that the defendant was predisposed to commit the crime. If the State cannot prove that the defendant would have committed the crime anyway, the entrapment defense is likely to be successful.
