Law of Undercover Policing Research Paper

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Undercover policing is an investigative technique that is largely unregulated by constitutional criminal procedure in the United States, though the European Court of Human Rights has proven more willing to regulate the impact of undercover tactics on fundamental rights. American criminal law regulates undercover policing primarily through the entrapment defense, of which there are different variants. Current tests rest on empirical assumptions about the ways in which police investigations influence their target environment. Current versions of the entrapment defense do not take account of the varieties of undercover investigations and the different types of influences undercover agents may exert on their targets.

Key Issues And Controversies Surrounding The Choice Of Regulatory Framework

Undercover policing is proactive an investigative tactic that allows police officers and informants to infiltrate criminal organizations or to test the criminal resolve of suspected offenders by disguising their true identities and orchestrating criminal opportunities. Undercover tactics have been examined through a rich variety of regulatory prisms, each of which captures a different feature that makes such operations vulnerable to abuse. Criminal law scholars worry about entrapment, which is an affirmative defense for targets of undercover stings who can show that government agents convinced them to commit a crime when they were not predisposed to engage in such criminal activity. Criminal law scholars also consider the potential criminal liability of undercover agents and informants who participate in the crimes they investigate. Criminal procedure scholars examine the impact of undercover investigations on the constitutional rights of criminal defendants, including their legitimate expectations of privacy under the Fourth Amendment and the ways in which undercover operations can compromise the privilege against compelled self-incrimination under the Fifth Amendment and the Sixth Amendment right to counsel.

Many civil libertarians look beyond the rights of criminal defendants to the First and Fourth Amendment interests of ordinary citizens. These concerns center on covert operations that pursue intelligence rather than evidence, since such investigations are likely to affect not only criminals but anyone who belongs to religious and political organizations that the government seeks to infiltrate. Because such investigations may not be predicated on concrete suspicion of wrongdoing, they may cast a wider net, yielding information whose validity may never be tested in court; covert scrutiny of this sort may burden the exercise of freedom of speech, assembly, and religion and may compromise the privacy of confidential communications between members of targeted organizations. Finally, state bar associations and courts that interpret state ethics codes have from time to time become concerned that prosecutors who supervise undercover operations might infringe disciplinary rules that prohibit attorneys from sanctioning acts of deception, or from sponsoring direct or indirect contact with represented parties, outside the presence of their lawyers.

Among this multiplicity of regulatory options, the entrapment defense remains the most significant, if only because most of the other types of challenges have proven either legally ineffectual or limited in scope. Appeals to civil liberties, in particular, have been notably less successful in the United States than in the European Union, where the European Court of Human Rights (ECtHR) has interpreted the Convention on Human Rights (ECHR) to protect the fair trial rights of criminal defendants whose convictions rest on evidence obtained undercover. Within the European Union, many national legislatures have understood the Convention’s protections for privacy (set forth in Article Eight) as requiring statutory regulation of undercover operations and the enactment of a warrant procedure that ensures prior approval and continuing oversight by judicial officers. The Convention’s privacy protections have been interpreted to limit the use of undercover tactics primarily to the pursuit of serious crimes, after showing that other, less intrusive investigative tactics seem unlikely to yield evidence against highly secretive offender groups. Accordingly, European legal systems authorize undercover operations primarily for the investigation of organized crime. Statutory constraints limit both the types of crimes undercover agents can investigate and the tactics they can use, as undercover agents in many European countries risk criminal sanctions for facilitating or taking part in crimes for which undercover tactics are not authorized by law – even when such assistance or participation serves exclusively investigative purposes. The European Court of Human Rights has also sustained challenges to undercover operations on grounds of entrapment, or because of the use of secret evidence, without adequate opportunity to question undercover agents and informants at trial. Both types of challenges invoked the right to a fair trial, as guaranteed by Article Six of the ECHR.

By contrast, undercover operations in the United States are not authorized by statute and may be initiated without obtaining a warrant or establishing probable cause or even reasonable suspicion that a crime is being committed. In Hoffa v. United States, 385 U.S. 293 (1966), the Supreme Court held that the use of undercover agents and informants does not tantamount to a search, within the meaning of Fourth Amendment, as targets waive their expectations of privacy in the information they voluntarily impart to others; in essence, suspects assume the risk of betrayal by their associates, or the risk that those with whom they commit crimes may turn out to be undercover agents. While listening in on a target’s telephone conversation is a search that infringes on a protected expectation of privacy, eliciting such a target’s confidences through undercover agents or informants does not count as a search within the meaning of the Fourth Amendment. Accordingly, resort to undercover tactics, unlike the use of electronic surveillance, requires no showing that less intrusive investigative methods have been tried or are likely to fail and no showing that the crimes being investigated are sufficiently serious to warrant the use of the undercover technique. In Illinois v. Perkins, 496 U.S. 292 (1990), the Supreme Court also rejected claims that undercover questioning of a custodial defendant violates his Fifth Amendment right to silence, even if he has already indicated his unwillingness to speak to the police, because the Fifth Amendment protects defendants only from compelled self-incrimination; if the defendant does not realize he is speaking to a representative of the police, the Court has reasoned, he cannot experience the conversation as an exertion of pressure by the government. Defendants have had more success challenging undercover questioning of defendants who have invoked their right to counsel. In Massiah v. United States, 377 U.S. 201 (1964), the Supreme Court held that once formal charges are in place, undercover questioning can violate a criminal defendant’s Sixth Amendment right to counsel – but only if the questioning concerns the crimes with which he is charged and only if he has already invoked his right to counsel. Finally, sufficiently outrageous sting operations can violate defendants’ substantive Due Process rights under the Fifth and Fourteenth Amendments. But this remains largely a theoretical possibility, as very few convictions have been vacated on that basis.

In recent years, US courts have also rebuffed claims that undercover policing invades their First Amendment rights of freedom of speech and assembly, though similar claims made in the 1970s and 1980s resulted in consent decrees under the terms of which police departments for cities like New York and Chicago agreed to refrain from surveillance of political and religious organizations absent any concrete evidence of ongoing or incipient criminal conduct. These consent decrees were quietly abandoned in the wake of the September 11 attacks, and the FBI, too, has modified the internal guidelines that restricted domestic intelligence agencies absent evidence of a criminal threat.

If American courts have rarely sustained legal challenges that are framed in the language of rights, and if American legislatures have never enacted a statutory warrant requirement, they have also avoided the regulatory path taken by most European legal systems before undercover tactics came to be regulated by a statutory warrant requirement: that of restraining undercover tactics through the threat of criminal sanctions for undercover agents or informants who take part in the crimes they investigate. Courts have taken the position that “[c]riminal prohibitions do not generally apply to reasonable enforcement actions by officers of the law” (Brogan v. United States, 522 U.S. 398 (1998)). And state legislatures have enacted broad immunities for undercover agents, through the so-called “public authority” defense, which protects law enforcement officers generally from criminal liability for enforcement actions that were duly authorized by their superiors. Unlike French and Italian immunities, which spell out the undercover tactics in which undercover agents and informants may lawfully engage, the American defense makes no effort to enumerate the enforcement actions – undercover or otherwise – for which the defense is designed.

The Dominant Framework: Entrapment

Accordingly, the entrapment defense remains the primary regulatory constraint on the criteria by which targets of undercover operations are selected and on the ways in which undercover investigations are planned and carried out. But there is an ambiguity at the heart of the entrapment defense, which accounts for the divergent ways in which it has been codified and discussed. Does the rationale for the defense rest on the view that targets do not deserve to be punished if they would have been unlikely to commit the charged offense without the criminal opportunity they were offered by government? Or does the entrapment defense exist primarily to reorient investigators away from targets of opportunity to “real” criminals, to whom the government merely tenders a convenient occasion to commit acts in which they would otherwise engage undetected?

The so-called objective test accords with the latter rationale, as it concerns itself with the nature and strength of the inducement employed by the government instead of the predisposition of offenders. While a particular defendant may well have been predisposed to commit the crime with which he is charged, an excessively appealing inducement may nonetheless amount to entrapment if it has a tendency to overcome the resistance of the average law-abiding citizen. Only a minority of jurisdictions, such as California and Oregon, have embraced this version of the entrapment defense. By contrast, the subjective variant of the entrapment defense accords with the former rationale, as it makes the defense available only to those offenders who were not predisposed to commit the crime they were eventually encouraged or persuaded to commit. A third, hybrid variant makes the defense available only if the defendant can establish both that he was not predisposed to commit the crime and that the government’s tactics were unfair, meaning that the pressures and inducements it used were excessive. This is the most restrictive variant of the entrapment defense, as a purely subjective test would sustain a defense of entrapment even when the government offered a target otherwise reasonable inducements, so long as the targeted offender could establish a lack of predisposition.

In Sherman v. United States, 356 U.S. 369, 372 (1958), the Supreme Court embraced this hybrid version of the test by asking whether the inducement was objectively excessive and whether the government’s tactics in fact implanted the idea for the crime in the mind of an “unwary innocent,” reasoning that the legislature that defined the criminal offense could not have intended the criminal prohibition to apply to those who would not have committed such a crime without encouragement by undercover agents or informants. Critics of the subjective entrapment defense and its hybrid variant have pointed out that any claim that targets who lack predisposition do not deserve criminal punishment must explain the unavailability of any similar defense to those “unwary innocents” who were led astray by their friends rather than government agents or informants.

Critics of all three variants of the entrapment defense point out that all current versions of the test make the assumption that one can meaningfully distinguish “true criminals” from “unwary innocents.” Commentators argue that almost anyone can be induced to commit a crime if the “criminal offer” is sufficiently tempting, so that the distinction between deserving and undeserving targets is at best a fluid one. The true question, for many reformers, is what level of inducement is considered reasonable, with some commentators using a market framework to argue that so-called above-market offers should be prohibited, because they may ensnare at least some targets who would be unlikely to commit crimes under “normal market conditions,” meaning that they would be unlikely to take advantage of the ordinary of criminal opportunities they are likely to encounter in their normal surroundings.

Legal scholars who would prohibit the government from offering targets more than the “market price” as inducements to commit a crime have often been vague about what constitutes an excessive inducement, as they have generally not examined or systematized the variety of government sting operations that might give rise to a defense of entrapment. In the realm of sociology, however, Gary Marx’s path breaking study, Undercover: Police Surveillance in America (1988), has identified a wide range of ways in which infiltration can alter a target’s conduct or environment, along with a large number of factors that can distort the “naturalism” of an undercover operation. Marx points out that undercover operations can alter not only the opportunity structure for criminal conduct but also the motives, rewards, markets, or resources that shape targets’ decisions about whether to offend and how. And among types of undercover operations, those in which an operative investigates past crimes are less likely to shape criminal conduct than anticipatory investigations that seek to prevent or facilitate future offenses. Investigations that offer criminal opportunities randomly will pose different risks of abuse than sting operations undertaken in response to prior intelligence about specific targets. Even if efforts to avoid concerns about entrapment lead investigators to emulate the natural criminal environment in their design of a criminal opportunity, too much realism may also overbear a target’s autonomy, since “[i]n genuine criminal encounters, one party may coerce or threaten another party into participating” or may offer sex or drugs as an inducement.

Applicability Of Entrapment Defense To The Varieties Of Undercover Policing

The distortions that can be created by undercover operations may be compared to those inherent in either cognitive science or anthropology. In cognitive science, an experimental design may not correlate well with the real-life setting it seeks to emulate, if the experimental scenario is overly artificial. In the same way, an undercover agent may, perhaps unwittingly, offer a target a criminal opportunity that may be a poor substitute, or proxy, for the types of offenses that a target commits on his own, independently of the government. This may be a particularly salient risk for transactional undercover investigations, in which the undercover agent may agree to buy a much larger quantity of contraband from a suspected dealer than the target ordinarily sells to others. (American courts call this phenomenon “sentencing entrapment,” if the investigator’s aim is to increase the level of offending for the purpose of triggering a mandatory minimum prison term, or some other sentence enhancement.)

But some undercover investigations may more profitably be compared to ethnography, anthropology, or undercover sociology rather than the experimental designs of cognitive science. If an undercover agent infiltrates a criminal organization, learning about kinship patterns and power hierarchies, his presence as a facilitator or coconspirator can reshape some of the internal dynamics of the organization or help the organization to branch out into new territories or to take advantage of emerging criminal opportunities. In this, agents may resemble anthropologists, ethnographers, or sociologists, who become part of a community they are studying, and in the process may influence and alter the social environment, for example, by bringing with them weapons and tools that lead natives to abandon their own technologies or by helping native communities patent their knowledge of the therapeutic effects of local plants and herbs.

If undercover agents participate in the organization’s crimes, instead of proffering criminal opportunities that the government can control, the agents may not only help reshuffle established hierarchies but may shape at least some of the organization’s criminal activities. Agents may also become entangled with and perhaps complicitous in the commission of crimes against innocent third parties or in retaliatory violence against unwitting informants (who may vouch for undercover agents without knowing their true identity.)

Most American undercover investigations can be grouped along a continuum, one end of which resembles the artificial, experimental scenarios through which cognitive scientists seek to reproduce natural occurrences under controlled conditions, while the other end of the spectrum features true infiltration of a natural environment which may, however, be altered by the presence of an outside observer. If undercover narcotics buys are closest to controlled experiments, other analogues to cognitive science experiments include the whole range of “honeypot” operations in which the police offer a criminal opportunity to targets who self-select by taking agents up on their criminal offers. Such investigations include random integrity testing of bank tellers, the establishment of storefront fencing operations, the positioning of bait cars filled with tempting merchandise, or the deployment of decoy officers posing as prostitutes on the street or as underage girls on the Internet. At the other end of the spectrum, undercover agents, sociologists, and journalists have infiltrated mental hospitals, supermarket chains, and extremist political parties, much as long-term moles have infiltrated the Cosa Nostra, the Hell’s Angels, and the Klu Klux Klan.

To be sure, all undercover operations allow the government secretly to influence the crimes it investigates. But the concerns such influence might raise will be different when the government orchestrates an offense as a provable proxy for other, secret criminal activity, than when it allows its agents to take part in and perhaps even steer offenses that are orchestrated by others, in settings and with consequences that the government may either not be able to control or may be able to steer only at the cost of making the organization’s true ambitions and capabilities difficult to disentangle from the government’s own contribution.

Neither objective nor subjective tests for entrapment are currently able to distinguish among these types of influence in assessing targets’ criminal responsibility for crimes to which government operatives contribute in an undercover capacity. That the entrapment doctrine functions as an affirmative defense makes it difficult to treat government influences as a matter of degree. By contrast, Italy and Germany treat entrapment as a scalar concept by making the doctrine available as a mitigating factor at sentencing. (The American doctrine of sentencing entrapment is rarely successful in reducing punishment to reflect government influence on the severity of a target’s offense, as it is invoked only in truly exceptional cases.) This allows targets’ penalties to be adjusted for the degree of government influence on targets’ criminal activities, so that punishment may correspond to the nature and severity of the offenses that targets would have committed on their own. Compared with many of the member states of the European Union, the United States remains unusual in resisting both statutory regulation and warrant requirements, which would compel advance scrutiny of undercover operations, while making much less use of doctrines such as sentencing entrapment to adjust for distorting government influences in their aftermath.


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