The Crime Report's two-part investigation last week of how the little-known “outrageous government conduct” defense has fared in the nation's courtrooms attracted numerous comments—many of which went beyond the legal wrangling triggered by undercover sting operations in recent years to raise essential questions about police practices.
Should police be allowed to conduct fake stash-house stings with fake drugs to catch people they say are dangerous? Do such practices keep the public safe?
And perhaps, most importantly: Is this the way we should deploy our crime-fighting resources?
At CBS News.com, which cross-posted our stories (and later discussed on air by TCR contributing editor Graham Kates), one common reaction was that these stings keep the public safe and the targets would have committed a crime at some point anyway.
“It would be difficult to claim entrapment unless the person being entrapped has a low IQ. Even with 'temptation,' most good people wouldn’t be caught up in a scheme like the first one described. Bottom line – most people who get caught up in these schemes have the propensity to be criminals anyways,” wrote commenter Beewaximus.
“Temptation is everywhere,” wrote a poster who signed his name as Vicjsm. “The bad circumstances in his life would still be there. He was stopped before he committed a crime that wasn’t set up, possibly saving innocent lives.”
“So you’re an advocate of thought crimes and arresting people before they commit crimes,” wrote DJTRUMP4PREZ2016 in response to Vicjsm.
“Until you can see the future with 100% accuracy, 'could’ve' is not a measure of reality. He wasn’t stopped from doing anything because there is zero proof other than in your mind that he would’ve committed any crime,” wrote Arthemisa.
“It is not the job of the police to drum up business; it is their job to stop illegal acts in the process —not create the problem,” wrote Rocky5077.
In other reactions, Douglas A. Berman of the Sentencing Law and Policy blog wrote positively on the stories, saying, “In these two extended pieces, TCR highlights the extraordinary examples of extreme stings and the limited willingness of courts to police the work of police and prosecutors in this arena.”
We also heard from a defense attorney about a case we missed in reference to “selective enforcement.”
We mentioned in the second story that defendants in stash-house cases have recently tried arguing they were victims of “selective prosecution.”
In the past two years, we wrote, defendants in Illinois, Connecticut, New York, Pennsylvania and New Jersey have filed discovery motions to get the Department of Justice, the Bureau of Alcohol, Tobacco, Firearms and Explosives, or the Drug Enforcement Agency to fork over its targeting criteria.
A defense attorney in Maryland pointed us to an active case he is involved in. He has filed similar discovery motions in an attempt to prove “selective prosecution”—so add Maryland to that list of states where defendants are aggressively litigating stash-house cases using a “selective prosecution” argument.
The most interesting comments, however, came from an inmate of the Federal Correctional Institution of Bunter, NC.
Joshua Boyer was sentenced to 24 years in prison for agreeing to participate in what turned out to be a fake stash-house robbery.
In an email to The Crime Report, Boyer wrote that when he was sentenced 15 years ago, the court “disagreed” with the lengthy sentence but was “powerless to do anything about it.” He said this reflects a larger problem about our country's failure to honor our Constitutional guarantees.
“The Separation of Powers in our Constitution has become nonexistent,” Boyer wrote. “Prosecutors and agents hold all the cards (and they make) executive officials judge, jury and executioner in more cases than a lot of people know.”
Boyer went on to write:
Primarily—arguably, the only—reason positions of power are now concerned with growing inequality and are at least talking about criminal justice reform is because of the growing discontent manifest in different social movements. Behind the scenes, however, maintaining the status quo is still the primary objective. Projecting the appearance of reform is the ultimate goal. Especially when it comes to stash house stings.
Recently, citing cases we mentioned where judges dropped drug charges in stash-house cases in Illinois, Boyer appealed for re-sentencing—but was shot down. He is scheduled to be released in April, 2022.
“Sorry to hear of the judge’s passing. We need more people in law enforcement who are willing to buck the corrupt systems as they appear,” wrote Wary Alaskan.
Irenas is the judge who went out on a limb to rule the government had engaged in “sentencing entrapment” in the Terrance Hardee case. The government appealed his sentence and the Third Circuit has not yet ruled on the matter.
If upheld, his decision to sentence below guidelines due to “sentencing entrapment” may be a sign to other judges that downward departing in stash-house cases is OK. We'll see.
There's a lot more to find out about “reverse stings.”
Recently, we came across an article by former DEA agent Michael Levine, who tweeted out a link to our story last week. Check out his piece, “Reverse Sting Operations—The American Hustle: The Unethical Use of Reverse Sting Operations and the Creation of Crime”
Lastly, a reader on Twitter pointed us to a great podcast, Criminal, which dedicated an episode to fake stash-house stings two weeks ago.
It's worth a listen.
The story of “outrageous government conduct” continues with every new case where a defendant raises the motion. Many of the cases we wrote about are active, so we plan to follow their progress to monitor how courts treat motions of “outrageous government conduct” and “sentencing manipulation.”
Please help keep us informed through by email or on Twitter of any related cases or articles you come across.
Adam Wisnieski, a Connecticut-based freelance reporter, is a contributing writer to The Crime Report. You can follow him on Twitter @adamthewiz or reach him at firstname.lastname@example.org. He welcomes comments from readers. TCR thanks all the readers who helped make his two-part investigation possible through indieGoGo, as well as the Fund for Investigative Journalism, who provided generous support.