Covert policing necessarily involves deception, which in turn often leads to participation in activity that appears to be criminal. In undercover operations, the police have introduced drugs into prison, undertaken assignments from Latin American drug cartels to launder money, established fencing businesses that paid cash for stolen goods and for “referrals,” printed counterfeit bills, and committed perjury, to cite a few examples.
In each of these instances, undercover police engaged in seemingly illegal activity to gather evidence or to maintain their fictitious identities. Yet unless these acts are committed by “rogue cops” not authorized to participate in illegal activity, these activities aren’t considered crimes. Indeed, they are considered a justifiable and sometimes necessary aspect of undercover policing.
This practice of authorized criminality is secret, unaccountable, and in conflict with some of the basic premises of democratic policing. What is authorized criminality? I define it as the practice of permitting covert police officers to engage in conduct that would be criminal outside of the context of an investigation. We can then distinguish it from other covert policing tactics, such as passively deceptive surveillance, or the police adoption of the role of a victim rather than that of a fellow criminal.
Despite its widespread use in covert operations, authorized criminality is the subject of little regulation or guidance. The absence of meaningful regulation is all the more remarkable because authorized criminality implicates some of the most fundamental questions regarding the role of police in a democratic society. These issues involve the control of police discretion, transparency in police decision making, and the moral authority of the police. This editorial discusses these observations in more detail, and then offers proposals that respond to these concerns.
Undercover Participation in Crime: An Introduction
Unlike an impulsive or opportunistic crime, some crimes involve secretive, complex, and consensual activities. The manufacture of methamphetamine, the bribery of local officials, food stamp fraud, prostitution, dog-fighting rings, and, at one time, homosexuality, are examples of such offenses, and they are difficult, if not impossible, to investigate if the police must wait for victim complaints, witness statements, or physical evidence. If these crimes are to be prosecuted successfully, then, the police must infiltrate criminal ranks or play willing victims. While undercover operations may sometimes seek merely to observe criminal behavior (surveillance operations) or to prevent crime from occurring (preventative operations), many operations involve the active encouragement of crime commission (facilitative operations), either through emboldening suspects—short of entrapment—or by weakening potential victims.
The need for authorized criminality arises most often in facilitative operations, when police must both maintain their covert identities as well as encourage the commission of crime. To encourage crime, police may pretend to be drug users or illegal gun buyers looking for a willing seller. Or in “reverse stings,” the police may provide the illegal drugs themselves, or the “buy” money to the suspects. In addition, covert police may often find themselves tested by criminals trying to flush out suspected police among their ranks by testing their willingness to engage in crime. Without the police playing their fictitious roles as closely as possible, criminals could easily exclude those suspected of infiltrating their ranks, simply by refusing to tolerate passive behavior.
Rules for Breaking Rules
The conditions under which undercover police officers may participate in crime have seldom been the subject of regulatory oversight. Instead, what exists is a patchwork of applicable state and federal constitutional law restraints that loosely regulates undercover operations and generally accepts the notion that undercover police violate the criminal law, but are justified in doing so.
Few, if any, covert police have faced direct criminal prosecution, in part because mental state requirements and the public authority defense are likely to shield the officer from criminal liability. In many instances, an undercover officer who participates in criminal activity will lack the required mental state of an applicable crime, and so risks no criminal liability. For example, an undercover officer pretending to be a drug seller will lack the specific intent to sell or distribute that is an element of many drug possession offenses.
In other cases, the public authority defense provides a justification for authorized criminality. This affirmative defense, recognized in every American jurisdiction, justifies otherwise criminal conduct when the action is taken by a law enforcement official in order to effect an arrest, stop a fleeing criminal, or prevent a crime. Because the defense permits the police to engage in otherwise-illegal conduct for legitimate law enforcement purposes, it certainly should apply to the undercover context. Whatever its conceptual underpinnings, however, the limits of the public authority defense have not been rigorously tested. Instances in which undercover police have used this defense are rare, because they are seldom, if ever, prosecuted.
Internal departmental or agency guidelines provide another source of potential control over authorized criminality in undercover operations. At the federal level, the Department of Justice refers to the Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations.1 The Guidelines explicitly consider the involvement of FBI agents in illegal activity during the course of an undercover operation, providing approval for certain activities by “undercover employees” that would, under other circumstances, “constitute a violation of Federal, state, or local law if engaged in by a private person acting without authorization.”2 In limited circumstances, then, FBI agents may participate in crimes as an official part of their duties. At the state and local level, however, the use of guidelines for undercover operations varies greatly, ranging from departments with rules comparable to the FBI Guidelines to departments that lack any internal rules at all.
The Harms of Police Participation in Criminal Activity
While police, prosecutors, and judges may defend authorized criminality on the grounds of its practical necessity, it is a practice that produces three significant harms.
First, police decisions about authorized criminality in undercover operations lack basic accountability because of their largely secretive nature. The simple absence of transparency in police decision making can be destructive, in its potential both to breed police abuse as well as to foment public distrust. There is little available public knowledge about the frequency, nature, and conditions of authorized criminality in undercover work. Yet the practice suggests a normative paradox: here, the state permits the police to act seemingly “above the law,” even as they enforce the law.
Second, few legal restrictions constrain undercover police regarding the scope of their permissible conduct in the case of authorized criminality as a practical matter. Critical questions are left to individual agencies and departments to decide. The police have considerable latitude over undercover operations, which can range from a straightforward “buy and bust” to a deep undercover operation that may last years and require significant psychological and social adjustments for the officers involved. The applicable legal doctrines are invoked so infrequently, let alone successfully, in cases of authorized criminality that as limits they are more theoretical than practical.
Finally, undercover participation in crime generates moral uncertainties. The risks to individual officers are especially serious. Occupational hazards are legion. Not only must the undercover officer present and maintain a credible false identity in a criminal milieu, but often he must also gain the confidence of his criminal associates. Maintaining this dual identity can sometimes lead to corruption, disciplinary problems, substance abuse, and sometimes severe psychological problems. Permitting agents to participate in crimes adds yet another layer of strain to this tangle of conflicting demands and loyalties by heightening role confusion.
Addressing the Challenge of Authorized Criminality
By itself, covert policing raises a host of problems about the optimal mix of effective enforcement tactics and ethical police behavior. The participation in crime by undercover police is a little known and secretive practice that by its very nature challenges core presumptions about democratic policing. When police are permitted to take the additional step of behaving as if they were in fact criminals but for doctrines justifying their conduct, they pose a host of potential harms to themselves, the public trust, and the stability of what it means to enforce the law.
At least three implications follow from this more complete portrait of authorized criminality. First, we should permit much broader public access than is now available to basic information on undercover work, including the use of authorized criminality. Greater transparency not only encourages public trust of the police, it can also help guide substantive regulation of undercover work by providing practical context. Second, encouraging the use of administrative guidelines can create a system of more guided discretion. Guidelines like those adopted by the FBI provide a useful starting point by providing ex ante guidance to covert police before hard decisions must be made. Third, legal scholars of the police must extend their agendas beyond those concerns identified by the U.S. Supreme Court, thus drawing attention to neglected subjects like authorized criminality. Taking their cues from the Court, legal scholarship has taken up many thorny issues of policing left open, unresolved, or problematic by the Court’s Fourth and Fifth Amendment cases, but at the cost of scholarly attention to areas where the Court has paid very little attention, including undercover policing.
Investigative techniques can’t be measured by their ability to secure convictions alone. Covert operations are an important tool of the police, but the unrestrained use of deceptive practices should give us pause. Even the appearance that the police are in some instances above the law is troubling. Over time, we have decided that some police tactics cannot be countenanced in a democratic society, whatever their instrumental value. It may not be possible to eliminate authorized criminality, but we should remain alert to its potential for harm.
Copyright © 2010 Stanford Law Review.
Elizabeth E. Joh is a Professor of Law at University of California at Davis School of Law.
This Legal Workshop Editorial is based on the following Article: Elizabeth E. Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 STAN. L. REV. 155 2009).
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