In recent years, entrapment schemes have exploded as government agencies seek to distract attention from their failure to protect citizens from real criminals and to maximize their power to intimidate the citizenry. Entrapment is “the act of officers or agents of the government in inducing a person to commit a crime not contemplated by him, for the purpose of instituting a criminal prosecution against him.”
Up until the mid 1970s, defendants often successfully challenged entrapment schemes as a violation of due process. But in 1973, the Supreme Court, in an opinion written by William Rehnquist, gutted most defenses against government entrapment by focusing almost solely on the “subjective disposition” of the entrapped person. If prosecutors can find any inkling of a defendant’s predisposition to commit the crime, then the person is guilty, no matter how outrageous or abusive the government agents’ behavior. Rehnquist sneered that “the defense of entrapment is not intended to give the federal judiciary a ‘chancellor’s foot’ veto over law enforcement practices of which it did not approve.” Justice William Brennan dissented, warning that the decision could empower law enforcement agents to “round up and jail all ‘predisposed’ individuals.”
Thanks to the prevailing judicial sentiments, it is a federal crime to be unable to resist repeated acts of temptation by the government or to resist deadly threats from undercover agents intent on making a case. A 1982 Senate report on undercover operations condemned government agents for “the use of threats by police to induce targets to commit criminal acts” and “the manipulation by police of a target’s personal or vocational situation to increase the likelihood of the target’s engaging in criminal conduct.” Despite this warning, entrapment operations have proliferated, leaving a trail of ruined lives and occasional dead bodies in its path.
In Los Angeles, police officers have gone undercover to pose as high-school students in order to implore other students to buy drugs for them, after which the students are arrested, expelled, and permanently denied federal college loans for their education. Some cops have even gotten romantically involved with their targets. The American Civil Liberties Union complained, “When other adults try to get young people involved with drugs, we call it contributing to the delinquency of a minor. When the LAPD does it, we call it the school-buy program.”
In late 1992 and 1993, New Jersey school systems were compelled by the state attorney general’s office to sign agreements authorizing police undercover operations (called “School Zone Narcotics Enforcement Working Groups”) in their schools, despite the strong objections of some school officials. Across the nation, schoolchildren in the Drug Abuse Resistance Education (DARE) program have been encouraged to talk about relatives with drug problems; as a result, numerous parents have been busted. (See “Destroying Families for the Glory of the Drug War” by James Bovard, Freedom Daily, February and March 1997.)
In a 1992 Michigan case, a defendant alleged that undercover FBI agents lured his daughter out of a drug rehabilitation program and gave her cash to buy narcotics, which resulted in her getting readdicted to drugs. Federal drug officials have enticed individuals to accept government money and a government-supplied airplane to fly to Colombia to pick up cocaine; when the person returns, he is busted. Customs Service “controlled deliveries” accounted for more than half of all the cocaine seized by the Customs Service in south Florida in the late 1980s. The Texas State Highway patrol publicly complained a few years ago that most of the methamphetamine they were finding in the state was being supplied to people by the DEA. The DEA has even placed advertisements for chemical kits in magazines such as Popular Science; after a person places an order, DEA agents arrive to bust the person on drug conspiracy charges.
The Postal Inspection Service has specialized in sting schemes seemingly designed to turn normal postal workers into mass murderers. In Boston, one undercover inspector took advantage of a mail sorter’s depression about his wife’s recent death from brain cancer to ply him with marijuana — and then got him arrested and fired. In Miami, a recovering alcoholic mail carrier had cocaine repeatedly pressed into her palm by an undercover inspector. In Cleveland, 20 postal workers were fired because of false information provided by one informant who also robbed the till in his spare time. Postmasters and postal supervisors nationwide have encouraged abusive entrapment schemes because the Postal Service gave them cash bonuses based on the number of busts of their employees — a “dollars for collars” program. Congressman Bill Clay, chairman of the House Post Office and Civil Service Committee, declared in 1994: “These are the kind of activities — illegal as hell — that the Postal Inspection Service has been involved with for the last 10 years.”
Pudenda are increasingly being used to inflate arrest statistics. In 1987, a federal appeals court explicitly sanctioned the government’s use of sex in order to persuade people to break the law: “The deceptive creation and/or exploitation of an intimate relationship does not exceed the boundary of permissible law enforcement tactics.”
In 1990, federal agents recruited a former lover of Washington, D.C., Mayor Marion Barry to fly to Washington, lure the mayor to her hotel room, and — after he refused seven times — persuade him to fire up a crack pipe. In Michigan, a man’s wife and an undercover officer posing as her cousin hectored a man for two months to buy them cocaine; when the harried husband finally relented, he was busted for cocaine possession. A judge, reversing a lower court’s conviction, threw the case out in 1991, ruling, “The [police] officer engaged in reprehensible behavior. Not only did the undercover officer initiate the crime, he exploited and manipulated a marital relationship and created a fictitious family relationship to carry out the crime.”
A Nassau County, New York, judge dismissed charges in 1993 against a teacher who had fallen prey to an undercover cop who became her best friend, her confidante, and her business manager. The cop eventually enticed her into making a few small cocaine buys and then threatened to ruin her life unless she became an informant against a motorcycle gang; Judge Raymond Harrington observed, “The police chose to try to terrorize her into agreeing to help them.”
Prostitution entrapment schemes are a dime a dozen among the nation’s police forces. In August 1993, Charles County, Maryland, police were embarrassed by reports that two undercover officers visiting strip joints had gone too far while enjoying “personal lap dances.” In Albuquerque, New Mexico, police placed a classified ad in a local paper advertising for men to work as paid escorts and then arrested 50 men who answered the ad for violating laws against prostitution.
In Honolulu, police paid private citizens to pick up prostitutes in their cars, engage in activity, pay, and then drive the prostitutes to nearby police cars for arrest. (The lawyer of one convicted prostitute complained: “You can now serve your community by fornicating. . . . Once the word gets out there will be no shortage of volunteers.”) In Des Moines, Washington (a Seattle suburb), police hired a convicted rapist to have sex with masseuses. The local police explained that they hired the felon after plainclothes policemen themselves were unsuccessful in their attempts.
Federal law makes it a crime for a business or individual to have any hazardous waste product transported by a company that does not display its waste-hauling license. Naturally, this has inspired politicians to set up scams to snare businessmen. Minnesota Attorney General Hubert Humphrey III set up an E-team undercover unit that created a phony business and mailed fliers to 600 businesses offering to haul away their waste for cut-rate prices. Two companies bit; one paid the front $65 to haul a single barrel of paint thinner waste that had been sitting around for three years. The grand tally of felons amounted to one grandmother and one part-time youth hockey coach. Attorney General Humphrey hailed the bust, claiming that it “sends out a powerful message: that we are going to be watching for those who intend to violate our hazardous waste transportation laws.” But the scam was widely denounced throughout the state, and a judge not only threw out the charges but forced the government to cover the legal costs of the defendants.
The Food and Drug Administration launched a massive entrapment scheme in the nation’s health food stores in July 1993 in order to gin up evidence for a congressional hearing on new laws to suppress the vitamin industry. FDA Commissioner David Kessler ordered investigators in all regions to go undercover to health food stores and ask for recommendations for dietary supplements to treat problems such as high blood pressure. As soon as a clerk would mention that garlic pills might help with blood pressure, the FDA was empowered to confiscate all the garlic pills in the store; the agency considers that such a claim makes all the garlic pills “misbranded,” since the FDA has not recognized the medical benefits of garlic. FDA agents even labeled as guilty several health food clerks who merely handed the agents reference books discussing the general benefits of vitamins. Sen. Orrin Hatch (R-UT) declaimed, “It is hard to imagine a clearer case of government entrapment and misuse of taxpayer dollars.”
Foolish laws fuel entrapment schemes. In 1984, President Reagan and Congress effectively coerced all states into raising the minimum age for purchasing alcohol to 21 — thereby creating millions of new criminals. In recent years, police across the nation have recruited 18-, 19-, and 20-year-olds to go into liquor stores or bars to try to buy alcohol. (According to some liquor store owners, police recruit young males who look significantly older than their age.) After a buy is made, the police arrive, hand out arrest warrants — and later, press releases. The entrapment schemes have provided ammo for politicians to declaim about a “nationwide epidemic of underage drinking.” However, no politician has yet explained how someone is fit to join the Marine Corps at age 17 but not fit for a beer until four years later.
The proliferation of entrapment schemes represents the triumph of an authoritarian concept of justice — that government should be allowed to do anything it chooses in order to catch anyone who any government official thinks might be a criminal. As Gail Greaney wrote in 1992 in the Notre Dame Law Review, “The due process defense is basically a nullity. . . . With each case, it appears that the line of intolerable police conduct is being pushed further toward the outlandish.”
The criminal justice system is increasingly like a socialist factory, designed solely to maximize the number of convictions and the number of incarcerated. Entrapment epitomizes the triumph of a “body count” approach to law enforcement. Entrapment schemes have proliferated partly because it is easier to manufacture crime than to protect private citizens. Entrapment schemes wreck individuals’ lives in order to boost arrest statistics. Some politicians have sought to justify entrapment schemes as a necessary response to the crime wave in recent years. Thus, the argument goes, the worse the government fails to prevent crime, the more power government should have to violate people’s constitutional rights.
The United States should take a lesson from new democracies such as Poland and the Czech Republic, which have banned almost all entrapment schemes as a violation of human rights. At a minimum, Americans called to jury duty should stand up for moral principle and refuse to convict their fellow citizens snared by government misconduct. Principled juries that refused to convict helped bring an end to Prohibition, and the same stand against tyrannical tactics can once again force politicians and police to cease this intolerable conduct.