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Elizabeth Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155 (2009).

Maybe it’s because I’m related to card-carrying members of the Tea Party movement, but I have a thing about government secrecy.  It makes me nervous.  In my own scholarship I have fretted a lot over state encroachments on personal privacy.  But when I really dig down deep, the truth is that I worry much less about what the government knows about me than I worry about what I do not know about it.

This probably explains my current research project, which is about (naturally) government secrecy in criminal justice.  It probably also explains my admiration for articles like Alexandra Natapoff’s Snitching:  The Institutional and Communal Consequences, 73 U. Cin. L. Rev. 645 (2004), and Jacqueline Ross’s The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany, 55 Am. J. Comp. L. 493 (2007).  Most recently, it certainly accounts for my fascination with and applause for the article I want to discuss here: Elizabeth Joh’s Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155 (2009).

Joh’s piece is a must read for anyone who teaches Criminal Law and happily puzzles over those impenetrable attempt cases in which the defendant is exculpated because his putative criminal confederate was in fact an undercover agent, or for anyone who teaches Criminal Procedure and feels slightly dishonest for the scholarly establishment’s general lack of interest in vice crimes  (even though they largely account for the explosion in the prison population).   In other words, there is a little something for everyone.

Her basic, and to my mind indisputable, premise is that although “petty deceptions pervade the craft of effective policing,” Joh, supra at 161, there is something different in kind, and worth noticing, about the practice of authorized criminality in covert investigations.  Citing sociologist Gary Marx, she begins by delineating the three categories of undercover policing:  surveillance, prevention, and facilitation.  Facilitation efforts, which require officers to pose either as vulnerable (and thus attractive) victims or as willing (and thus encouraging) accomplices, run the greatest risk of crossing legal and ethical lines.  Undercover agents may be required to engage in authorized criminality in order to provide opportunities for the target to commit an offense (such as by supplying drugs to a manufacturer), to maintain their false identity (such as by smoking marijuana), or to acquire access (such as by committing offenses necessary to gain authority in a criminal organization).

Authorized police criminality raises a range of concerns, Joh argues, yet very little is known about it.  She specifically highlights the problems of its secrecy and lack of accountability, its unrestrained grant of police discretion, and its disturbing moral ambiguity.  She notes the tension between the values of democratic policing and the reality that “[t]here is little available public knowledge about the frequency, nature, and conditions of authorized criminality in undercover work.”  Id. at 183.  Authorized criminality, moreover, can generate moral confusion for the officer engaged in the deception, as well as undermine the expressive authority of the police among community members aware of the tactic.

Despite these real risks, authorized criminality is effectively unregulated in the American legal system (though less so elsewhere).  Prosecutors rarely charge officers, and those that are charged can assert the well-recognized public authority defense.  Moreover, to the extent that entrapment law or due process might present some ex post regulation (and thus arguable deterrence), those substantive doctrines have been defined so narrowly as to lose all meaning.  Lastly, police departments themselves have left the area largely untouched by internal rules or guidelines.

The ultimate goal of the piece, having identified the issue, is to set forward three initial recommendations.  Joh recommends greater transparency, primarily through more rigorous recording and dissemination of data related to instances of authorized criminality.  She also recommends limiting the exercise of discretion through the development of internal departmental guidelines.  She closes by encouraging legal scholars to resist the beckoning beam of constitutional criminal procedure, and instead shine some light on the shadowy corners of local and state level police practices.

Breaking the Law appealed to me on three levels, two of which spring directly from a more general reading of her closing exhortations.   First, in an era of ill-defined wars both domestic and abroad (on terror, on sex offenders, on drugs, on gangs, etc.), it seems that questions of the permissible boundaries of covert operations, and especially authorized criminality, are particularly necessary and timely.  I am mindful here of Jackie Ross’s wonderful work (cited above), which opens with a striking account of a scandal in Germany that resulted from multiple policing agencies infiltrating the same organization, unaware of one another’s identity, such that in the end it turned out that they had spent most of their time covertly studying one another.  That cautionary tale dovetails nicely with the recent news about the Maryland State Police, who admitted to having covertly infiltrated various advocacy groups like Code Pink and PETA, leading investigators to improperly identify fifty-three nonviolent political activists as “terrorists” in national government databases.

So why have both courts and legislatures left this area entirely unregulated, even as they (as Joh points out) have minutely prescribed the procedures for interrogation or a stop and frisk?  I kept summoning the image of Jack Nicholson in A Few Good Men on the witness stand barking: “You can’t handle the truth!”  I suspect that neither judges nor lawmakers want to sully their hands with the dirty business of police breaking the law, and may secretly (or not so secretly) even believe it to be the only way to go about effectively policing some offenses.  But as hydraulic pressures push toward more invasive and imaginative tools in the War Against [fill in the blank], it seems that at the very least there ought to exist some conversation on the topic.  In this respect, I appreciate that Joh’s piece sounds a valuable alarm just as the fire is spreading, but no one is yet awake.

Second, perhaps my favorite thing about Joh’s piece was that it endeavored to do some of what I have strived to do in my own work:   focus on state and local level policing and not shy away from the subject despite an admitted lack of empirical data.  Joh knows that she is, in a sense, going a bit “rogue” herself by making arguments regarding a practice about which there is no good information, but that does not stop her from doing it.  She is careful in her claims, and particularly in sticking to her process-oriented guns (more data! more guidelines!) as a result, but I liked the plucky way she reminded us at the end that legal scholars all too often enable Supreme Court worship in criminal justice, with all its resulting pathologies.  Both directly and by example, Joh urges scholars not to shy away from scholarship focused on the states and localities (with their 770,000 police officers),  even though it is so often hard to figure out what’s going on in them.

This leads me to my last observation about Joh’s piece:  I desperately wanted her to throw caution to the wind and dive into the substantive values that she deliberately avoided.  We have made national entertainment of catching sex predators in the act (NBC) and our courts are clogged with undercover buy-bust cases, but anyone who watches The Wire (and everyone should) knows that the Big Criminal Fish still swim pretty freely.  So my mind immediately wandered here: what is the proper axis of analysis when thinking about the propriety of such covert ops?  Vice crime on one side of the scale and on the other the complex financial frauds that have brought the economy to its knees?  Or is it low-level dealers on one side and the corrupt politicos on the other?   Is it type of crime or scale of target that matters?  Is there a place where the two meet in the middle-say, Joe Sex Offender?

Surely there must be crimes that we are willing to let go unpunished, rather than authorize police criminality and run the risk of the many and real harms Joh so ably identified.  When I teach Welsh v. Wisconsin, 466 U.S. 740 (1984), students inevitably squirm at the thought that the criminal will just get away, all because the Court was a bit squeamish about warrantless entries in the home.  Maybe the reason this area has remained so unexamined and unregulated isn’t at all about fear of rustling the bushes and releasing the snakes.  Maybe instead it reflects a shift from a bounded view of the place of policing crime in society to something more colonial — able and entitled to travel wherever it might fit.  If so, then that  is the most disturbing implication of all.

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Cite as: Erin Murphy, Going Rogue, JOTWELL (April 1, 2010) (reviewing Elizabeth Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155 (2009)), https://crim.jotwell.com/going-rogue/.