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The Long History of Entrapment Insanity


America has seen a profusion of entrapment schemes in recent years. Many of the most high-profile domestic-terrorism cases have been ginned up by FBI agents who preyed on persons who had little competence for creating perils on their own. The explosion in entrapment operations is partly the result of a profound shift in the type of abuses that courts will countenance from government agents.

Many of the government’s recent law-enforcement “success stories” would have been thrown out of court in earlier generations. One of the first recorded judicial decisions on this subject was handed down in 1894, when a person who illegally mailed contraceptive information successfully claimed entrapment after proving that the mailing was in response to a request for information from an undercover government agent.

Prohibition provided a golden opportunity for entrapment — until the Supreme Court pulled in the reins. Supreme Court Justice Louis Brandeis warned in 1928, “To declare that … the government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution.” In 1931, the Supreme Court overturned the conviction of a man who had been befriended and repeatedly entreated by a federal agent to sell him moonshine. The Court ruled, “The act for which the defendant was prosecuted was instigated by the prohibition agent … and that defendant had no previous disposition to commit it.” In a 1958 case of a person entrapped into selling narcotics, the Supreme Court announced, “Congress could not have intended that its statutes were to be enforced by tempting innocent people into violations.”

Prior to the 1970s, entrapment operations were often struck down as due-process violations. Paul Marcus, a professor of law at William & Mary Law School, observed, “Some of the most strongly worded condemnations of police conduct are found in cases involving so-called ‘take-back’ sales. These cases involve clear evidence showing that one police agent provided illicit drugs to the defendant, who then illegally dispensed the drugs to a second agent.”

But a series of Supreme Court decisions soon tilted the playing field in favor of government agents. The Supreme Court basically proclaimed that it was “open season” for law enforcement to hunt American citizens. In a 1986 Montana case, a federal judge ruled that it was permissible for an undercover federal agent to illegally kill protected wildlife as part of a scheme to entrap other persons into violating federal wildlife laws.

On March 6, 1989, 275 heavily armed federal and state wildlife officers, supported by planes and helicopters, assaulted San Luis Valley, Colorado (the most impoverished region in the state, with an extremely high unemployment rate), in a pre-dawn raid to arrest people who had sold game to an undercover federal agent. A Fish and Wildlife Service agent set up a shop and advertised for people to sell him antlers, hides, or carcasses from elk, deer, bear, and eagles. In the two and a half years of the operation, the agent purchased at least 500 elk, 2,000 deer, and 95 eagles. As the Los Angeles Times reported, “Many of those arrested … say they would not have violated the game laws if the government had not set up the market. Some said that [the FWS agent] openly encouraged them to kill game.”

After the raid, the local sheriff received “about 30 complaints from people who said wildlife agents kicked in doors, dragged people outside in their underwear at gunpoint and improperly stopped and searched people,” according to the Associated Press. U.S. Attorney Mike Norton declared after the raid, “We will not tolerate the theft of the public’s wildlife resources. We will use every available legal means to stop this activity.”

But considering that the U.S. government owns up to 80 percent of the land in some Western states, and considering the poverty of many Americans living in those areas, the U.S. government’s massive persecution resembles English monarchs’ vendettas against peasants who hunted in the king’s forests.

Stings that go bad

The FBI is carrying out hundreds of undercover operations a year. With such mass production, little details sometimes get overlooked. The Miami Herald reported in 1994 that an FBI sting against Medicare abuse turned into a fiasco after FBI agents sold 35 Medicare cards to a suspected fraud operation. The FBI used the Social Security numbers of legitimate Medicare recipients on the cards in order to add authenticity to its scheme. Unfortunately, the agency lost control of the cards — and, as the Miami Herald noted, “now they have a monster on their hands.” Medicare recipients have been shocked and horrified to receive massive bills for expensive operations that they never received, courtesy of the FBI sting operation. One of the victims of the FBI-Medicare botched sting observed, “How can they let this happen to people they are supposed to protect? I had to play cop with the clinics myself, making calls to them and complaining to Medicare.”

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. Houston attorney Kent Schaffer complained in 1994, “The government has brought in more cocaine than the Medellin Cartel.” 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, according to the General Accounting Office. The Texas State Highway Patrol publicly complained that most of the methamphetamine they were finding in the state was being supplied to people by the DEA .

In Osceola County, Florida, local police in 1994 proudly announced that they had made the biggest cocaine bust in county history — two kilograms. But police later admitted that the drugs that had been “seized” were already owned by the government and had simply been handed momentarily to a motel owner targeted for a sting. A police spokesman explained that the reseizure of the drugs was counted as if it was an original seizure because it would help the county police appear more productive in their applications for federal and state anti-drug grants. And besides, the reverse sting gave the county an excuse to confiscate the motel from its owner.

The passion to boost arrest statistics leads some police departments to go into manufacturing drugs themselves. The Orange County, California, police laboratory began producing $10 and $20 rocks of crack cocaine in 1993 and, in the subsequent 18 months, more than 350 people were busted for trying to buy the stuff from undercover cops. The Los Angeles Times explained the rationale behind the program: “In Santa Ana, authorities said their stings are intended to make small-time buyers eligible for harsher punishments. Deputy District Attorney Carl Armbrust said Friday that the reverse stings help officers build felony rap sheets against users who will eventually be eligible for prison sentences if they are arrested a second time…. ‘I’m happy with what we are doing,’ Armbrust said.” The program still has had a few glitches, such as when suspects swallow the rock they bought from undercover cops before they can be arrested. One local defense attorney estimated that 42 percent of all the crack sold by the police actually was consumed before the bad guys could be busted.

Manufacturing criminals

The mindset of law enforcement is stark from the occasional entrapment scheme that goes too far. In 1992, a federal appeals court in California threw out an entrapment conviction achieved by means of death threats. Jennifer Skarie, a 41-year-old mother of three, let one of her ex-husband’s relatives, John Byrd (nicknamed “Bear”), move onto her ranch in Valley Center, California, in late 1988. The relative turned out to be a undercover government drug agent who frequently used methamphetamine in her house and endlessly pressured Skarie to put him in touch with people who would sell him drugs.

As the federal appeals court decision noted, “After Bear moved in with Skarie, he began to make sexual advances towards her and towards the women living with her. Bear was a violent person who threatened people regularly and was usually armed, even in the house.” Skarie finally evicted Bear; the court noted,

Bear reacted violently to being thrown out, and made a variety of threats against Jennifer Skarie. In February 1989, Bear asked Skarie to put him in touch with some people who could sell him drugs. Skarie demurred. Bear continued to pressure her to introduce him to people she knew who sold drugs; he would call as often as ten times a day and would often come by Skarie’s house uninvited. Bear also made a variety of threats to Skarie and other members of the household. He impaled one of her chickens on a stick and left it outside her back door; he later stated that what had happened to the chicken could happen to people as well. He told Skarie that it would be easy to slit the throats of her horses, and threatened to kidnap her six-year-old son “so that you will never see him again.”

Skarie finally relented and arranged for him to buy methamphetamine from a person she knew. As soon as the sale was completed, she was arrested for possession of narcotics with intent to distribute (because of the drugs in her acquaintance’s car).

After a vigorous federal prosecution, she was sentenced to 10 years in prison without parole. The appeals court decision noted,

Skarie refused to participate for over two months in the face of repeated requests by the government, and relented only after the government’s agent made a number of graphic and violent threats against her and her family. Skarie’s testimony that she was induced in part by Bear’s threats was not contested at trial.

The U.S. Justice Department apparently believes that putting a person in contact with another person to purchase an illegal substance is a worse crime than maiming animals and threatening to kidnap young children.

Government agents often get promoted on the basis of their statistical performance — how many busts, how many years the defendants are sentenced to, how much private property is confiscated as a result of an investigation. With entrapment schemes, the more private citizens’ lives a government agent destroys, the higher up in the bureaucracy he rises. But the rubble of private citizens’ lives should not be the steppingstones to bureaucratic success. Most undercover government agents would very likely get no bonuses or promotions for reporting that the nefarious people they associated with were not breaking the law. Thus, they have an incentive to encourage whatever crime they are supposedly investigating.

If we want to put government back on a leash, Americans must become intolerant of entrapment operations. There are enough violent criminals out there that the government does not need to manufacture violators of laws, especially drug laws, which should never have been enacted in the first place.

This article originally appeared in the January 2012 edition of Freedom Daily. Subscribe to the print or email version of The Future of Freedom Foundation’s monthly journal, Future of Freedom (previously called Freedom Daily).

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    James Bovard is a policy adviser to The Future of Freedom Foundation. He is a USA Today columnist and has written for The New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader’s Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of Public Policy Hooligan (2012); Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book’s Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.