dissenting.
It is common ground that “[t]he conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents.” Lopez v. United States, 373 U. S. 427, 434 (1963). For the Government cannot be permitted to instigate the commission of a criminal offense in order to prosecute someone for committing it. Sherman v. United States, 356 U. S. 369, 372 (1958). As Mr. Justice Brandeis put it, the Government “may not provoke or create a crime and then punish the criminal, its creature.” Casey v. United States, 276 U. S. 413, 423 (1928) (dissenting opinion). It is to prevent this situation from occurring in the administration of federal criminal justice that the defense of entrapment exists. Sorrells v. United States, 287 U. S. 435 (1932); Sherman v. United States, supra. Cf. Masciale v. United States, 356 U. S. 386 (1958); Lopez v. United States, supra. But the Court has been sharply divided as to the proper basis, scope, and focus of the entrapment defense, and *440as to whether, in the absence of a conclusive showing, the issue of entrapment is for the judge or the jury to determine.
I
In Sorrells v. United States, supra, and Sherman v. United States, supra, the Court took what might be called a “subjective” approach to the defense of entrapment. In that view, the defense is predicated on an unexpressed intent of Congress to exclude from its criminal statutes the prosecution and conviction of persons, “otherwise innocent,” who have been lured to the commission of the prohibited act through the Government’s instigation. Sorrells v. United States, supra, at 448. The key phrase in this formulation is “otherwise innocent,” for the entrapment defense is available under this approach only to those who would not have committed the crime but for the Government’s inducements. Thus, the subjective approach focuses on the conduct and propensities of the particular defendant in each individual case: if he is “otherwise innocent,” he may avail himself of the defense; but if he had the “predisposition” to commit the crime, or if the “criminal design” originated with him, then — regardless of the nature and extent of the Government’s participation — there has been no entrapment. Id,, at 451. And, in the absence of a conclusive showing one way or the other, the question of the defendant’s “predisposition” to the crime is a question of fact for the jury. The Court today adheres to this approach.
The concurring opinion of Mr. Justice Roberts, joined by Justices Brandeis and Stone, in the Sorrells case, and that of Mr. Justice Frankfurter, joined by Justices Douglas, Harlan, and Brennan, in the Sherman case, took a different view of the; entrapment defense. In their concept, the defense is not grounded on some unex*441pressed intent of Congress to exclude from punishment under its statutes those otherwise innocent persons tempted into crime by the Government, but rather on the belief that “the methods employed on behalf of the Government to bring about conviction cannot be countenanced.” Sherman v. United States, supra, at 380. Thus, the focus of this approach is not on the propensities and predisposition of a specific defendant, but on “whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.” Id., at 382. Phrased another way, the question is whether — regardless of the predisposition to crime of the particular defendant involved — the governmental agents have acted in such a way as is likely to instigate or create a criminal offense. Under this approach, the determination of the lawfulness of the Government’s conduct must be made — as it is on all questions involving the legality of law enforcement methods — by the trial judge, not the jury.
In my view, this objective approach to entrapment advanced by the Roberts opinion in Sorrells and the Frankfurter opinion in Sherman is the only one truly consistent with the underlying rationale of the defense.1 Indeed, the very basis of the entrapment defense itself demands adherence to an approach that focuses on the conduct of the governmental agents, rather than on whether the defendant was “predisposed” or “otherwise innocent.” I find it impossible to believe that the purpose of the defense is to effectuate some unexpressed congressional intent to exclude from its criminal statutes persons who committed a prohibited act, but would not have *442done so except for the Government’s inducements. For, as Mr. Justice Frankfurter put it, “the only legislative intention that can with any show of reason be extracted from the statute is the intention to make criminal precisely the conduct in which the defendant has engaged.” Sherman v. United States, supra, at 379. See also Sorrells v. United States, supra, at 456 (Roberts, J., concurring). Since, by definition, the entrapment defense cannot arise unless the defendant actually committed the proscribed act, that defendant is manifestly covered by the terms of the criminal statute involved.
Furthermore, to say that such a defendant is “otherwise innocent” or not “predisposed” to commit the crime is misleading, at best. The very fact that he has committed an act that Congress has determined to be illegal demonstrates conclusively that he is not innocent of the offense. He may not have originated the precise plan or the precise details, but he was “predisposed” in the sense that he has proved to be quite capable of committing the crime. That he was induced, provoked, or tempted to do so by government agents does not make him any more innocent or any less predisposed than he would be if he had been induced, provoked, or tempted by a private person — which, of course, would not entitle him to cry “entrapment.” Since the only difference between these situations is the identity of the tempter, it follows that the significant focus must be on the conduct of the government agents, and not on the predisposition of the defendant.
The purpose of the entrapment defense, then, cannot be to protect persons who are “otherwise innocent.” Rather, it must be to prohibit unlawful governmental activity in instigating crime. As Mr. Justice Brandeis stated in Casey v. United States, supra, at 425: “This prosecution should be stopped, not because some right of Casey’s has been denied, but in order to protect the *443Government. To protect it from illegal conduct of its officers. To preserve the purity of its courts.” Cf. Olmstead v. United States, 277 U. S. 438, 470 (1928) (Holmes, J., dissenting); id., at 485 (Brandeis, J., dissenting). If that is so, then whether the particular defendant was “predisposed” or “otherwise innocent” is irrelevant; and the important question becomes whether the Government’s conduct in inducing the crime was beyond judicial toleration.
Moreover, a test that makes the entrapment defense depend on whether the defendant had the requisite predisposition permits the introduction into evidence of all kinds of hearsay, suspicion, and rumor — all of which would be inadmissible in any other context — in order to prove the defendant’s predisposition. It allows the prosecution, in offering such proof, to rely on the defendant’s bad reputation or past criminal activities, including even rumored activities of which the prosecution may have insufficient evidence to obtain an indictment, and to present the agent’s suspicions as to why they chose to tempt this defendant. This sort of evidence is not only unreliable, as the hearsay rule recognizes; but it is also highly prejudicial, especially if the matter is submitted to the jury, for, despite instructions to the contrary, the jury may well consider such evidence as probative not simply of the defendant’s predisposition, but of his guilt of the offense with which he stands charged.
More fundamentally, focusing on the defendant’s innocence or predisposition has the direct effect of making what is permissible or impermissible police conduct depend upon the past record and propensities of the particular defendant involved. Stated another way, this subjective test means that the Government is permitted to entrap a person with a criminal record or bad reputation, and then to prosecute him for the manufactured *444crime, confident that his record or reputation itself will be enough to show that he was predisposed to commit the offense anyway.
Yet, in the words of Mr. Justice Roberts:
“Whatever may be the demerits of the defendant or his previous infractions of law these will not justify the instigation and creation of a new crime, as a means to reach him and punish him for his past misdemeanors. ... To say that such conduct by an official of government is condoned and rendered innocuous by the fact that the defendant had a bad reputation or had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhorrent transaction.” Sorrells v. United States, supra, at 458-459.
And as Mr. Justice Frankfurter pointed out:
“Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition. No more does it vary according to the suspicions, reasonable or unreasonable, of the police concerning the defendant’s activities.” Sherman v. United States, supra, at 383.
In my view, a person’s alleged “predisposition” to crime should not expose him to government participation in the criminal transaction that would be otherwise unlawful.2
*445This does not mean, of course, that the Government’s use of undercover activity, strategy, or deception is necessarily unlawful. Lewis v. United States, 385 U. S. 206, 208-209 (1966). Indeed, many crimes, especially so-called victimless crimes, could not otherwise be detected. Thus, government agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit the crime an opportunity to do so. Osborn v. United States, 385 U. S. 323, 331-332 (1966). See also Sherman v. United States, supra, at 383-384 (Frankfurter, J., concurring).
But when the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then — regardless of the character or propensities of the particular person induced— I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.3
*446II
In the case before us, I think that the District Court erred in submitting the issue of entrapment to the jury, with instructions to acquit only if it had a reasonable doubt as to the respondent’s predisposition to committing the crime. Since, under the objective test of entrapment, predisposition is irrelevant and the issue is to be decided by the trial judge, the Court of Appeals, I believe, would have been justified in reversing the conviction on this basis alone. But since the appellate court did not remand for consideration of the issue by the District Judge under an objective standard, but rather found entrapment as a matter of law and directed that the indictment be dismissed, we must reach the merits of the respondent’s entrapment defense.
Since, in my view, it does not matter whether the respondent was predisposed to commit the offense of which he was convicted, the focus must be, rather, on the conduct of the undercover government agent. What the agent did here was to meet with a group of suspected producers of methamphetamine, including the respondent; to request the drug; to offer to supply the chemical phenyl-2-propanone in exchange for one-half of the methamphetamine to be manufactured therewith; and, when that offer was accepted, to provide the needed chemical ingredient, and to purchase some of the drug from the respondent. *447It is undisputed that phenyl-2-propanone is an essential ingredient in the manufacture of methamphetamine; that it is not used for any other purpose; and that, while its sale is not illegal, it is difficult to obtain, because a manufacturer’s license is needed to purchase it, and because many suppliers, at the request of the Federal Bureau of Narcotics and Dangerous Drugs, do not sell it at all. It is also undisputed that the methamphetamine which the respondent was prosecuted for manufacturing and selling was all produced on December 10, 1969, and that all the phenyl-2-propanone used in the manufacture of that batch of the drug was provided by the government agent. In these circumstances, the agent’s undertaking to supply this ingredient to the respondent, thus making it possible for the Government to prosecute him for manufacturing an illicit drug with it, was, I think, precisely the type of governmental conduct that the entrapment defense is meant to prevent.
Although the Court of Appeals found that the phenyl2-propanone could not have been obtained without the agent’s intervention — that “there could not have been the manufacture, delivery, or sale of the illicit drug had it not been for the Government’s supply of one of the essential ingredients,” 459 F. 2d 671, 672 — the Court today rejects this finding as contradicted by the facts revealed at trial. The record, as the Court states, discloses that one of the respondent’s accomplices, though not the respondent himself, had obtained phenyl-2-propanone from independent sources both before and after receiving the agent’s supply, and had used it in the production of methamphetamine. This demonstrates, it is said, that the chemical was obtainable other than through the government agent; and hence the agent’s furnishing it for the production of the methamphetamine involved in this prosecution did no more than afford *448an opportunity for its production to one ready and willing to produce it. Cf. Osborn v. United States, supra, at 331-332. Thus, the argument seems to be, there was no entrapment here, any more than there would have been if the agent had furnished common table salt, had that been necessary to the drug’s production.
It cannot be doubted that if phenyl-2-propanone had been wholly unobtainable from other sources, the agent’s undercover offer to supply it to the respondent in return for part of the illicit methamphetamine produced therewith — an offer initiated and carried out by the agent for the purpose of prosecuting the respondent for producing methamphetamine — would be precisely the type of governmental conduct that constitutes entrapment under any definition. For the agent’s conduct in that situation would make possible the commission of an otherwise totally impossible crime, and, I should suppose, would thus be a textbook example of instigating the commission of a criminal offense in order to prosecute someone for committing it.
But assuming in this case that the phenyl-2-propanone was obtainable through independent sources, the fact remains that that used for the particular batch of methamphetamine involved in all three counts of the indictment with which the respondent was charged — i. e., that produced on December 10, 1969 — was supplied by the Government. This essential ingredient was indisputably difficult to obtain, and yet what was used in committing the offenses of which the respondent was convicted was offered to the respondent by the Government agent, on the agent’s own initiative, and was readily supplied to the respondent in needed amounts. If the chemical was so easily available elsewhere, then why did not the agent simply wait until the respondent had himself obtained the ingredients and produced the drug, and *449then buy it from him? The very fact that the agent felt it incumbent upon him to offer to supply phenyl-2-propanone in return for the drug casts considerable doubt on the theory that the chemical could easily have been procured without the agent’s intervention, and that therefore the agent merely afforded an opportunity for the commission of a criminal offense.
In this case, the chemical ingredient was available only to licensed persons, and the Government itself had requested suppliers not to sell that ingredient even to people with a license. Yet the Government agent readily offered, and supplied, that ingredient to an unlicensed person and asked him to make a certain illegal drug with it. The Government then prosecuted that person for making the drug produced with the very ingredient which its agent had so helpfully supplied. This strikes me as the very pattern of conduct that should be held to constitute entrapment as a matter of law.4
It is the Government’s duty to prevent crime, not to promote it. Here, the Government’s agent asked that the illegal drug be produced for him, solved his quarry’s practical problems with the assurance that he could provide the one essential ingredient that was difficult to obtain, furnished that element as he had promised, and bought the finished product from the respondent — all so that the respondent could be prosecuted for producing and selling the very drug for which the agent had asked and for which he had provided the necessary component. *450Under the objective approach that I would follow, this respondent was entrapped, regardless of his predisposition or “innocence.”
In the words of Mr. Justice Roberts:
“The applicable principle is that courts must be closed to the trial of a crime instigated by the government’s own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.” Sorrells v. United States, supra, at 459.
I would affirm the judgment of the Court of Appeals.
Both the Proposed New Federal Criminal Code (1971), Final Report of the National Commission on Reform of Federal Criminal Laws § 702, and the American Law Institute's Model Penal Code §2.13 (Proposed Official Draft, 1962), adopt this objective approach.
See Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L. J. 1091, 1111 (1951):
“Clearly entrapment is a facet of a broader problem. Along with illegal search and seizures, wire tapping, false arrest, illegal detention and the third degree, it is a type of lawless law enforcement. They all spring from common motivations. Each is a substitute for *445skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when dealing with known criminals or the 'criminal classes/ justifies the employment of illegal means.”
Several federal courts have adopted the objective test advanced by Mr. Justice Roberts and Mr. Justice Frankfurter, or a variant thereof, focusing on the conduct of the government agents, rather than the “predisposition” of the particular defendant. See, e. g., United States v. McGrath, 468 F. 2d 1027, 1030-1031 (CA7 1972); Greene v. United States, 454 F. 2d 783, 786-787 (CA9 1971); Carbajal-Portillo v. United States, 396 F. 2d 944, 948 (CA9 1968) ; Smith v. United States, 118 U. S. App. D. C. 38, 44, 46, 331 F. 2d 784, 790, 792 (1964) (en banc); United States v. Chisum, 312 F. Supp. 1307 (CD Cal. 1970). Cf. United States v. Morrison, 348 F. 2d 1003, 1004 (CA2 1965); Accardi v. United States, 257 F. 2d 168, 172-173, n. 5 (CA5 1958); United States v. Kros, 296 F. Supp. 972, 979 (ED Pa. 1969). Moreover, this objective approach is the one *446favored by a majority of the commentators. In addition to the Proposed New Federal Criminal Code and the Model Penal Code, supra, n. 1, see Williams, The Defense of Entrapment and Related Problems in Criminal Prosecution, 28 Fordham L. Rev. 399 (1959); Cowen, The Entrapment Doctrine in the Federal Courts, and Some State Court Comparisons, 49 J. Crim. L. C. & P. S. 447 (1959); Donnelly, supra, n. 2; Comment, Entrapment in the Federal Courts, 1 U. San Francisco L. Rev. 177 (1966).
Some federal courts have ordered indictments for receipt, possession, or sale of contraband to be dismissed, upon a showing that Government agents themselves had supplied the contraband. See United States v. McGrath, supra; Greene v. United States, supra; United States v. Bueno, 447 F. 2d 903 (CA5 1971); United States v. Chisum, supra; United States v. Dillet, 265 F. Supp. 980 (SDNY 1966). The same considerations obtain here.