Breaking the law to enforce it: undercover police participation in crime.

• Author: Joh, Elizabeth E.

INTRODUCTION I. UNDERCOVER PARTICIPATION IN CRIME: AN OVERVIEW A. The Difference Between Undercover and Conventional Policing B. The Contemporary Significance of Undercover Policing C. Types of Undercover Policing 1. Surveillance 2. Prevention 3. Facilitation D. Participation in Crime 1. Providing opportunities 2. Maintaining cover and access 3. Rogue cops II. RULES FOR BREAKING RULES A. Direct Liability 1. Mental state requirements 2. The public authority defense B. The Prosecution of Targets 1. Defenses raised by targets a. The entrapment defense b. Due process limits 2. Eliminating barriers to conviction C. Internal Guidelines D. Authorized Criminality in Comparative Perspective III. THE HARMS OF POLICE PARTICIPATION IN CRIMINAL ACTIVITY A. Transparency and Police Action B. Unfettered Discretion 1. Police discretion and democratic policing 2. Discretion and authorized criminality C. Moral Ambiguity 1. Moral uncertainty and the undercover officer a. The stress of deception b. The harm of engaging in authorized crime 2. Moral authority and the community IV. ADDRESSING THE CHALLENGE OF AUTHORIZED CRIMINALITY A. Increasing Transparency for Undercover Operations B. Limiting Policing Discretion in Undercover Work C. Expanding the Research Agenda Beyond Criminal Procedure CONCLUSION INTRODUCTION

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, (1) undertaken assignments from Latin American drug cartels to launder money, (2) established fencing businesses that paid cash for stolen goods and for "referrals," (3) printed counterfeit bills, (4) and committed perjury, (5) to cite a few examples. (6)

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. (7) And to the extent that authorized criminality presents mixed messages about their moral standing, it undermines social support for the police. (8) While the practice isn't new, authorized criminality raises fundamental questions about the limits of acceptable police conduct and has been too long ignored.

What is authorized criminality? I define it as the practice of permitting covert police officers (9) to engage in conduct that would be criminal (10) outside of the context of the investigation. (11) 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. (12) Excluded too are instances where police may cross ethical boundaries but not legal ones, such as when undercover investigators stage homicides or other fictitious violent crimes in hopes of building credibility. (13) In Part I, I further situate authorized criminality in the context of covert policing, by discussing how undercover operations differ and why undercover police participate in crimes. While empirical data is limited, the available evidence shows that authorized criminality is a widely used aspect of undercover work.

In Part II, I argue that, despite its widespread use in covert operations, authorized criminality is the subject of little regulation or guidance. In the vast majority of situations, the police are immune from prosecution, so long as their actions lie within the scope of their official undercover role. A legal justification called the "public authority defense" shields these activities from criminal liability. (And the defense is rarely needed because police are very seldom prosecuted. (14)) Other potential sources of regulation, including the entrapment and due process defenses that can be raised by defendants targeted in covert operations, are equally unlikely to regulate authorized criminality in day-to-day practice.

The absence of any meaningful regulation is remarkable because, as I argue in Part III, authorized criminality implicates some of the most fundamental questions regarding the role of police in a democratic society, questions that have captivated legal scholars of the police for the past fifty years. (15) Transparency and rulemaking counterbalance the pervasive and necessary use of police discretion. Yet secrecy and untrammeled discretion characterize the participation of covert police in criminal activity. This has important practical and normative consequences. We do not know much of what covert police do or how they decide to do it. What is known--that the police may in some circumstances act "above the law"--puts the police in a position of moral ambiguity. Enforcement tactics trump concerns about the moral standing of the state. (16)

With these harms in mind, I offer three proposals in Part IV. First, regular public reporting on the frequency and nature of authorized criminality would increase accountability. We know too little about how often and in what circumstances covert police are permitted to participate in crime. The absence of publicly available information about authorized criminality is especially troubling in light of its lax regulation, its consequences, and its increasing importance in terrorism investigations. (17) Greater transparency increases accountability, and can provide us with a basis for determining when participation in crime is not worth its benefits.

Second, the use of administrative guidelines within police departments would curb unnecessarily free discretion when police engage in authorized criminality. Courts and legislatures have expressed little interest in regulating undercover work. And though a few legal doctrines exist to limit police behavior, undercover investigators are too rarely the subject of criminal prosecution for these doctrines to provide meaningful restraint. Courts overwhelmingly deny legal challenges to undercover tactics, albeit with a discomfort exemplified in comments of one federal appellate court: "Undercover police work in general ... is an unattractive business, but that is the nature of the beast...." (18) But this ill-defined notion of necessity usually doesn't involve any consideration of competing concerns, and thus doesn't help regulate authorized criminality in any way. Administrative guidelines, by contrast, can both guide and restrain the police when difficult judgments must be made in the field.

Finally, the scholarly agenda regarding the regulation of the police must venture beyond the confines of the United States Supreme Court's concerns. Legal commentary focuses primarily on constitutional criminal procedure. (19) While undercover policing has long engaged the attention of sociologists, psychologists, and screenwriters, (20) it has failed to capture the sustained interest of legal scholars to the same degree other police practices have. (21) Undercover policing is a marginal legal academic interest. (22) Yet covert policing is rife with "complexity and paradox"; (23) so too is the particular practice of "state sanctioned lawlessness" (24) that takes the form of undercover participation in crime. One explanation for this neglect may be the "pull" of criminal procedure. To the extent that the United States Supreme Court has addressed undercover policing in the investigative stage, (25) it has found the practice to lie outside of the Fourth Amendment's protections. (26) This focus has meant that those police practices left mostly untouched by federal constitutional law lie beyond the focus of the legal academy as well. It isn't obvious, however, that authorized criminality is any less challenging to notions of democratic policing than is racial profiling or excessive force, to take two examples of extensive critical and popular interest.

1. UNDERCOVER PARTICIPATION IN CRIME: AN OVERVIEW

   What is the role of authorized criminality in undercover work, and how is the latter to be distinguished from ordinary street policing? Scholars have identified several analytically useful ways of categorizing undercover work. This Part uses these categories to provide an introduction to undercover policing and the place of authorized criminality in it.

   1. The Difference Between Undercover and Conventional Policing

      At first glance, it may seem that the key distinction between undercover work and all other kinds of policing is deception. Deception is used, however, in many aspects of policing. (27) The detective may lie to the defendant in order to gain a confession. A uniformed officer might con an armed and barricaded suspect into providing entry by promising no arrest. And so the fact is that petty deceptions pervade the craft of effective policing. (28) The difference between these deceptions and those of undercover work may be a matter of a degree, but it is a significant one. A detective may lie in the interrogation room about the status of a case to encourage a confession: a deception of purpose. In undercover work, suspects are unaware of both the purpose and the identity of the police. (29) Indeed, the objective of undercover policing is to capture criminals in their "natural" state, although of course the irony is that the observers are duplicitous, or, in the cases of bait-sales and street crime decoys, (30) are part of the circumstances of the crime.

   2. The Contemporary Significance of Undercover Policing

      Investigative deception is a firmly entrenched aspect of contemporary American policing. Even critics of undercover work generally acknowledge that its elimination is neither feasible nor desirable. (31)

      And two related historical developments...