THE BLOG
06/10/2014 12:01 pm ET Updated Aug 10, 2014

"Stinging" Poor Racial Minorities

A man trolls from bar to bar in the seediest part of town searching for recruits to rob a drug stash house. He announces there are massive quantities of drugs, a huge pay day, the need to carry guns and instructions on where to go, and what to do. The recruits are not felons; some have never even committed a crime. But they live in poverty, are out of work and despite the risks, are enticed by the lucrative reward. They arrive at the "stash house" and are promptly arrested by members of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. The stash house is a fiction, a sting operation concocted, scripted and directed by ATF to apprehend criminals. In fact, the operation already has netted over 600 people, many of whom have been sentenced from 15 years to life.

ATF has been especially creative, and overzealous, in concocting sting operations. Recall the recent Gunwalking scandal known as Operation Fast and Furious in which ATF, to try to stem the flow of guns into Mexico, authorized licensed firearms dealers to sell weapons to illegal straw buyers in hopes of tracking the guns to Mexican drug cartel leaders. However, ATF lost track of most of the guns sold, many of which were found at crime scenes on both sides of the Mexican-American border, and in one case U.S. Border Patrol Agent Brian Terry was killed. It's been reported that at least 150 Mexican civilians have been killed with these guns, and no high-level cartel figure has been arrested.

To be sure, the prayer to "Lead us not into temptation" applies to everybody except the government. Spies, stool-pigeons, undercover agents and informants abound; the government's deception and trickery is intended to prevent criminals from committing present crimes and trap would-be criminals into committing future crimes. The danger, of course, is that traps, scams and manufactured crimes, while attracting real criminals, are also capable of luring vulnerable non-criminals who would never have gone astray but for the extravagant inducements presented to them.

In fact, the ATF concoction of the fictitious stash house sting operation is a striking example of how far the government can go in creating crimes, offering lavish inducements to unsuspecting persons, writing a script for them to follow, directing them on how to commit the phony crime and then arresting them for something that was impossible to commit but for the government's involvement. This operation is even more pernicious because it gives the government the power to control the punishment by instructing the recruits to carry guns -- resulting in enhanced punishment -- and inflating the amount of drugs it tells the "robbers" are present in the stash house - a further enhancement. And if the government does not attempt to identify at the beginning of the operation targets who are most likely to violate the law -- and there is no indication in the stash house cases that the government makes its selections this carefully -- then the government has the power to lure innocent people into its sting who if left alone might never have violated the law.

Whether the government uses its power responsibly in order to trap people into committing a crime that would otherwise not be committed except for the government's creation is debatable. If a person is waiting for a good opportunity to commit a crime and the government's undercover tactic simply provides that person with an opportunity to commit the crime, then the government has not created a new criminal but merely stopped a would-be criminal from harming society. But if we assume that the person selected by the government has committed no crime in the past, has no plans to commit a crime presently and would never commit a crime in the future if left alone, then it is an abuse of power for the government to offer lavish inducements to tempt these people into committing crimes, especially people who may be most vulnerable to these temptations.

This is especially so when the government uses undercover operations to target and trap with lavish financial inducements persons living in poor minority neighborhoods who are most vulnerable to the government's blandishments. Several federal judges recently condemned this targeting, saying that the government "verges too close to tyranny" when it sends agents trolling through bars tempting vulnerable people to engage in criminal conduct and then locking them up for unconscionable periods of time when they succumb to the temptation. Further, as these judges wrote, the government's scheme to troll into a "bad part of town" and target "bad guys" smacks of racial discrimination in the same way that random, suspicionless "stop and frisk" police tactics disproportionately target members of racial minorities.

Also, most perversely, as Judge Richard Posner has noted, this sting operation makes a counter-productive contribution to the so-called War on Drugs. By deterring would-be stash house robbers (scared because it may turn out to be a sting), the effect of the fictitious stash house sting is to make real stash houses more secure by reducing the likelihood that they will be robbed. The greater security that the fictitious stash house sting gives to real stash houses means that the real stash house can reduce its cost of self-protection -- a major cost of the illegal drug trade -- and thereby lower prices charged to drug buyers and increase drug sales. As Judge Posner observes wryly, "The operators of stash houses would pay law enforcement to sting potential stash house robbers."

The young men rounded up by this fictitious stash house sting might have become productive members of society if left alone. Because they fell prey to the government's temptations, they have now been added to a prison population that is a national disgrace -- a population that has increased eight-fold since 1972 to an astonishing 2 million inmates, at least half of whom are there for drug crimes. Here is the good question: Does the huge cost to taxpayers of this massive incarceration outweigh other much less costly endeavors such as educating, training and creating jobs for some of the people that the ATF has duped into crime?