with whom Mr. Justice Stewart and Mr. Justice Marshall concur, dissenting.
I joined my Brother Stewart’s dissent in United *496States v. Russell, 411 U. S. 423, 439 (1973), and Mr. Justice Frankfurter’s opinion concurring in the result in Sherman v. United States, 356 U. S. 369, 378 (1958). Those opinions and the separate opinion of Mr. Justice Roberts in Sorrells v. United States, 287 U. S. 435, 453 (1932), express the view, with which I fully agree, that “courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced.” 356 U. S., at 380. The “subjective" approach to the defense of entrapment — followed by the Court today and in Sorrells, Sherman, and Russell — focuses on the conduct and propensities of the- particular defendant in each case and, in the absence of a conclusive showing, permits the jury to determine as a question of fact the defendant’s “predisposition” to the crime.1 The focus of the view *497espoused by Mr. Justice Roberts, Mr. Justice Frankfurter, and my Brother Stewart "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.'. . . 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.” 411 U. S., at 441. Petitioner’s claims in. this case allege a course of police conduct that, under this view, would plainly be held to constitute entrapment as a matter of law.
In any event, I think that reversal of petitioner’s conviction is also compelled for those who follow the “subjective” approach to the defense of entrapment. As Mr. Justice Rehnquist notes, the Government’s role in the criminal activity involved in this case was more pervasive than the Government involvement in Russell. Ante, at 489. In addition, I agree with Mr. Justice Powell that Russell does not foreclose imposition of a bar to conviction — based upon our supervisory power or due process principles — where the conduct of law enforcement authorities is sufficiently offensive, even though the individuals entitled to invoke such a defense might be “predisposed.” Ante, at 495. In my view, the police activity in this case was beyond permissible limits.
Two facts significantly distinguish this case from Russell. First, the chemical supplied in that case was not contraband. It is legal to possess and sell phenyl-2-propanone and, although the Government there supplied an ingredient that was essential to the manufacture of methamphetamine, it did not supply the contraband itself. In contrast, petitioner claims that the very nar*498cotic he is accused of selling was supplied by an agent of the Government. Compare ante, at 489, with ante, at 491-492.
Second, the defendant in Russell “was an active participant in an illegal drug manufacturing enterprise which began before the Government agent appeared on the scene, and continued after the Government agent had left the scene.” 411 U. S., at 436. Russell was charged with unlawfully manufacturing and processing methamphetamine, id., at 424, and his crime was participation in an ongoing operation. In contrast, the two sales for which petitioner was convicted were allegedly instigated by Government agents and completed by the Government's purchase. The beginning and end of this crime thus coincided exactly with the Government’s entry into and withdrawal from the criminal activity involved in this case, while the Government was not similarly involved in Russell’s crime. See Greene v. United States, 454 F. 2d 783 (CA9 1971).
Whether the differences from the Russell situation are of degree or of kind, ante, at 489, I think they clearly require a different result. Where the Government’s agent deliberately sets up the accused by supplying him with contraband and then bringing him to another agent as a potential purchaser, the Government’s role has passed the point of toleration. United States v. West, 511 F. 2d 1083 (CA3 1975). The Government is doing nothing less than buying contraband from itself through an intermediary and jailing the intermediary. United States v. Bueno, 447 F. 2d 903, 905 (CA5 1971). There is little, if any, law enforcement interest promoted by such conduct; plainly it is not designed to discover ongoing drug traffic. Rather, such conduct deliberately entices an individual to commit a crime. That the accused is “predisposed” cannot possibly justify the action of government officials in purposefully creating *499the crime. No one would suggest that the police could round up and jail all “predisposed” individuals, yet that is precisely what set-ups like the instant one are intended to accomplish. Cf. United States v. Russell, 411 U. S., at 443-444 (Stewart, J., dissenting). Thus, this case is nothing less than an instance of “the Government . . . seeking to punish for an alleged offense which is the product of the creative activity of its own officials.” Sorrells v. United States, 287 U. S., at 451.
These considerations persuaded the Court of Appeals for the Fifth Circuit to hold that where the Government has provided the contraband that the defendant is convicted of selling, there is entrapment as a matter of law. United States v. Bueno, supra. That court has also concluded that this holding was not affected by Russell. See, e. g., United States v. Oquendo, 490 F. 2d 161 (1974); United States v. Mosley, 496 F. 2d 1012 (1974). The Court of Appeals for the Third Circuit agreed, and followed Bueno after Russell was decided.2 United States v. West, supra. Even if these courts erred in holding that Russell did not foreclose the finding of “entrapment” as a matter of law in Bueno, see ante, at 492 n. 2, I agree with my Brother Powell that “entrapment” under the “subjective” approach is only one possible defense — he suggests due process or appeal to our supervisory power as alternatives — in cases where the Government's conduct is as egregious as in this case. Ante, at 493-495.3 *500Petitioner makes no claim to the benefit of an entrapment defense that focuses on predisposition. Ante, at 489. For the reasons stated I would at a minimum en-graft the Bueno principle upon that defense and hold that conviction is barred as a matter of law where the subject of the criminal charge is the sale of contraband provided to the defendant by a Government agent.4 Cf. Olmstead v. United States, 277 U. S. 438, 470 (1928) (Holmes, J., dissenting); Casey v. United States, 276 U. S. 413, 423-425 (1928) (Brandeis, J., dissenting).
While the Court has rejected any view of entrapment that does not focus on predisposition, a reasonable alternative inquiry might be whether the accused would have obtained the contraband from a source other than the Government. This factor could be brought into the case through the jury charge. Once the accused comes forward with evidence that the Government is the supplier, the prosecution would bear the burden of proving beyond a reasonable doubt either (1) that the Government is not the supplier or (2) that the defendant would have obtained the contraband elsewhere to complete the transaction. Cf. United States v. West, 511 F. 2d 1083, 1086 (CA3 1975); United States v. Bueno, 447 F. 2d 903 (CA5 1971).
The Court of Appeals for the Seventh Circuit also followed Bueno in United States v. McGrath, 468 F. 2d 1027 (1972). This Court remanded that case for reconsideration in light of Russell, 412 U. S. 936 (1973), and the Court of Appeals apparently concluded that Bueno did not survive Russell. United States v. McGrath, 494 F. 2d 562 (1974).
It might be suggested that the police must on occasion supply contraband to catch participants in drug traffic, but this justification is unconvincing. If^the police believe an individual is a distributor of narcotics, all that is required is to set up a “buy”; the putative *500pusher is worth the investigative effort only if he has ready access to a supply. See United States v. Russell, 411 U. S., at 448-449 (Stewart, J., dissenting).
For present purposes it would be sufficient to adopt this rule under our supervisory power and leave to another day whether it ought to be made applicable to the States under the Due Process Clause. In addition to the authorities cited in Russell, supra, at 445 n. 3 (Stewart, J., dissenting), some state courts have adopted the objective approach. See, e. g., State v. Mullen, 216 N. W. 2d 375 (Iowa 1974); People v. Turner, 390 Mich. 7, 210 N. W. 2d 336 (1973); Lynn v. State, 505 P. 2d 1337 (Okla. 1973).