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June 22, 2013

Controlled Substances # 4: Investigating "Victimless" Drug Crimes

31-cEIG37XL._SL500_AA300_Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

After a hiatus in my guest blogging series, I’m back to finish up with a few more posts this month.  Thanks again so much to Doug for the opportunity!

At first blush, devoting time to drug investigations in a controlled substances course might seem unnecessary.  After all, a large percentage of criminal procedure cases involve drug prosecutions.  There are, however, many interesting legal and policy questions that related to drug investigations that do not arise elsewhere in the law school curriculum.  Many of these problems center around the “victimless” nature of drug offenses.

As I’ll talk about more in my next post, any course on drug crimes will inevitably include a discussion of whether drug crimes are “victimless” in the moral sense.  Regardless of where one comes out on that issue, there’s no debate that drug offenses are victimless in narrower and often underappreciated sense: they lack a complaining witness.  Most robbery investigations begin after the victim reports the crime to the police.  This is not true of drug crimes.  As a book designed as an investigative resource for drug enforcement officers put it, "[f]requently . . . drug enforcement agents must initiate their own cases."

The hidden, consensual nature of drug activity presents a range of interesting investigative problems.  The entrapment and public authority defenses, racial profiling and pretextual stops, SWAT raids, wiretaps, police corruption, the management of informants — though these issues can arise in the policing of all crimes, they are uniquely important to drug enforcement.  A chapter in my casebook on Investigating Drug Crimes explores this terrain.

A number of key themes arise throughout the material.  Among them is enforcement discretion.  The absence of a complaining witness can, in some cases, give the police an unusual amount of discretion in drug investigations, including the power to pick a target and the power to look the other way. 

The entrapment case, Utah v. J.D.W., provides an example of picking targets for undercover investigations.  There, a police officer with the Davis Metro Narcotics Strike Force — which, like many drug investigation units, appears to have had war in mind when deciding on its name — conducted a “reverse sting” at a suburban mall.  The officer approached over one hundred people over the course of a few hours, offering to sell them marijuana.  Only one person expressed interest, J.D.W., a seventeen year old who purchased $35 worth. 

As a matter of doctrine, J.D.W. presents a concise application of the objective test for entrapment.  The court upholds the conviction but, in a concurring opinion, one judge offers an unusual critical assessment of the officer’s actions.  Judge Orne questions the value of the operation, arguing that “[t]he overall societal cost of such methods is simply too great to justify the arrest of a single juvenile purchaser.  I regret that the current state of the law is such that I can do nothing more than fuss about it.”  The Judge suggests that the Supreme Court or the legislature consider adopting an “entrapment per se” defense, under which the police offering drugs for sale would always constitute entrapment.  To what extent should the law constrain the discretion of law enforcement to choose drug targets?  J.D.W. is a great case for engaging this and related questions.

Enforcement discretion can cut the other way as well.  Without a complaining witness to, well, complain when the police drop an investigation, it can be easy to make a drug case go away.  This can lead to corruption, an issue examined in the chapter.  But, it can create other policy problems as well.  The police might let a drug suspect they’ve caught red-handed remain free in order to help make other cases against others.  In the chapter on sentencing, we see the police wait to arrest suspects until after a third or fourth controlled buy in order to increase the individual’s sentencing exposure.  This is commonplace enough that most students don’t find it unusual at first glance, but would we have the same reaction if the police let a bank robbery suspect hit a few more locations just to gain sentencing leverage over them? 

The police might also decide to let known offenders remain free for investigative purposes.  In a wiretap investigation, for example, listening while peripheral participants sell drugs may be considered necessary to build a case against the ultimate target. 

What if the police decide to let a drug dealer become an informant and, in exchange, let the dealer sell without interference?  In Schalk v. Indiana, an understandably frustrated though badly misguided defense attorney tried to expose this sort of arrangement.  Schalk represented a man charged with selling methamphetamine to a confidential informant named Hyde.  Schalk believed Hyde was continuing to sell drugs while working for the police and set out to prove it by hiring a couple of teens to buy marijuana from Hyde.  Hyde sold marijuana to Schalk’s “investigators” but, when Schalk contacted the police to turn the marijuana in and report Hyde’s crime, the police did not react as he had expected.  Instead of arresting Hyde, the police arrested Schalk, who was ultimately convicted of attempted possession of marijuana.

It is easy to question Schalk’s judgment and the case surely presents an opportunity to talk with students about the ethical boundaries of zealous representation.  But underneath Schalk’s poor choices are very real policy and practical problems.  If the police are letting Hyde sell drugs while he informs on others, can he be trusted to provide reliable information?  Any defense attorney in Schalk’s position would want to get this information before a jury to call Hyde’s credibility into question.  But how?  If the police have made a deal to look the other way in exchange for information from Hyde, it may be exceedingly difficult to get this evidence. 

On the other side of the equation, how should conscientious police and prosecutors balance these issues in their work?  In order to uncover hidden activity like drug deals, the government will need to rely more often on informants, undercover officers, and so on.  What principles should prosecutors and police use to guide them in deciding when to let informants go unpunished in exchange for information, for example.  Should the law play a more active role in cabining this discretion?

Prior post in series:

June 22, 2013 at 10:16 AM | Permalink


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Glad to see you back. Just two points for now:

1. "...there’s no debate that drug offenses are victimless in narrower and often underappreciated sense: they lack a complaining witness."

It's really hard to be a complaining witness, or a complaining anything, after you've died from the overdose.

Also, even the addicts who don't OD never complain. Being addicts, they love the stuff. They're not about to complain. They want more and more as their lives descend into ruin.

2. "If the police are letting Hyde sell drugs while he informs on others, can he be trusted to provide reliable information? Any defense attorney in Schalk’s position would want to get this information before a jury to call Hyde’s credibility into question. But how?"

Cross examination.

3. Now just let me as you a question, Alex: Do you think that, overall, we'd have a better country if people used more drugs? I know that's not a strictly legal question, but its answer is a crucial backdrop to the subject of your text.

Posted by: Bill Otis | Jun 22, 2013 10:46:27 AM

Bill Otis points to the problem of the addict, but many legal things involve abuses of oneself, including gambling, alcohol and cigarette use, eating, bad marriages and so forth. As to "more drugs," the question is also if the likely increase (but only so much) in usage will be balanced out by the decrease of other harms, including restraints on reducing the negative effects of drugs that are now inhibited by the criminal model in place.

I am somewhat surprised that it "often underappreciated" that there is not a complaining witness, since I see the matter referenced repeatedly in these discussions, including the listing of various problems like entrapment etc. Supporters of criminalization appear to accept usage of informers, undercover agents, concerned parents and other individuals etc. here though it does lead to various problems. Presence of corruption is accepted as an institutional given up to a point as well including before modern drug policies existed.

Posted by: Joe | Jun 22, 2013 12:30:30 PM

Hey Bill: I will let Alex respond to points 1 and 2, but I want to tease out some of your thoughts (and others) on item #3. I assume, for starters, from the context your question here concerns (1) drugs that are currently completely prohibited by federal law, and (2) we are discussing use by competent adults. (I tend to think "we'd have a better country" if less men used ED drugs and more women used morning-after pills to prevent unwanted pregnancies, but these kinds of legal with prescription drugs raise all sorts of societal issues that I presume you are not focused on.)

Even with that context, I also wonder if your concern is really drug ABUSE, not use. I think there is consensus that we'd have a better country with less drug ABUSE. But our experiences with alcohol over the last century suggests that effective regulation perhaps fosters a reduction in drug ABUSE even while increasing drug use.

Finally, with those caveats and reflecting my own utilitarian instincts, I would say for any illegal drug --- as well as for any other dangerous but enjoyed/useful item ranging from guns to cars to Big Gulps and fried foods --- I think we'd have a better country from more use of that item if we could be confident greater use would, for a greater number of Americans, increase life, liberty and the pursuit of happiness. I am not sure some currently legal item ranging from cigarettes to assault weapons now contribute to serving this greater good for a great number of Americans if/when used more, and I am of the view that some currently illegal items ranging from marijuana brownies to gay marriage would contribute to this greater good for a great number of Americans if/when used more.

As for some other currently illegal drugs, I think the empirical question I pose concerning contribution to greater life, liberty, pursuit of happiness is much harder to figure out, in part because of substitution effects. If folks who currently ABUSE cigarettes and alcohol and/or illegal drugs could become just functional users of other drugs and suffer less from abuse, I think we would have a better country because we would have less drug abuse. But each substance has a different use/abuse/addiction relationship --- e.g., alcohol has lots of use, limited abuse/addiction, most tobacco users are now is an abuse/addiction position. Not sure how marijuana, cocaine, meth, X, LSD and other illegal drugs would play out, especially if effectively regulated. And, as we see with Oxycodone abuse and the pill mill problem, even efforts to regulate some legal drugs through our health care system does not prevent abuse.

To finish this point, let me ask you this related follow-up (2-part) question: (1) which risky items/drugs/activities currently legal (e.g., tobacco, guns, fried foods, sky-diving) if done a lot less would you think make us a better country , and (2) what do you think is the most effective and economical way for the federal government to seek to "nudge" use rates lower?

Posted by: Doug B. | Jun 22, 2013 12:46:27 PM

The correct answer has already been provided many times here.

The adult pleasure license (APL). It leaves users alone to their harmless pleasures. It restrict access to addicts and other causing harm to selves and others.

At the age of adulthood, one gets a license for all adult pleasures, say alcohol.

One drinks and beats up the wife. She reports it. The police verify it and report it to the APL Board. One gets a point. The foreman of your crane operation business sees you fall down drunk at work. He reports it. Two points. The police finds you drunk in a single car crash. Point three. No one may serve you alcohol, or they face draconian criminal and civil penalties. You never get the alcohol license again, because it is a chronic condition.

Leave the social drinkers alone. Restrict the harmful drinkers.

Posted by: Supremacy Claus | Jun 22, 2013 3:21:28 PM

Hi Bill, thanks for your thoughts. In response:

To point 1: It sounds like you are agreeing that drug crimes typically lack a complaining witness--whether a drug buyer is an addict or a non-addicted casual user, she is exceedingly unlikely to go to the police to report the crime of having been sold drugs. My point in the post was that this fact (the absence of a complaining witness) raises a set of interesting legal and policy issues that are not usually addressed elsewhere in the law school curriculum.

To the extent your point is to suggest that drug crimes aren't victimless in the broader, moral sense, I think I was pretty clear in the sentence immediately before the one you quoted that this was not the subject of this post. As I said, regardless of where comes out on the debate about drug crimes being victimless in the moral sense, we can all agree that they are "victimless in the narrower" sense that they lack a complaining witness. Again, from what you've said, it seems like you agree with that premise.

To point 2: Now, I'm certainly not an experienced trial lawyer, but it seems to me that the problem with relying on cross examination alone in this circumstance is that witnesses might sometimes lie. Maybe I'm mistaken and drug dealing informants can be trusted always to tell the truth when they're being cross examined by a defense attorney. If so, please feel free to set me straight. But assuming there's a decent chance that a drug dealing informant will falsely deny he's continuing to sell drugs while he works for the police (and while they look the other way), then I think we come back to the same place.

Shalk heard that the guy snitching against his client was continuing to sell drugs. He wanted to catch the informant in the act, report the crime to the police, and get the guy arrested. To put a finer point on it: given the perils of relying exclusively on the informant to honestly answer questions during cross examination, Shalk wanted to get some specific evidence to confirm what he'd heard. As misguided as Shalk was, it seems like he was right about one thing: the informant was continuing to sell drugs while he worked for the police and the informant wasn't arrested for his crimes. Whether this was because the police were knowingly permitting the informant to continue selling or because they genuinely had no idea what the informant was doing or something in between--willful blindess to the informant's drug business perhaps?--we don't know. But the informant against Shalk's client was continuing to sell drugs while snitching--that much Shalk was right about.

So, while I agree with you that cross examination is a useful tool for testing informants (a fact noted in the informant materials in the casebook), I don't think it really answers the problem posed by Shalk. Indeed, it appears Shalk was motivated to do what he did because he didn't think he could rely on cross examination alone.

To 3: I'm afraid I don't think that my thoughts on prohibition, legalization, or whether "we'd have a better country if people used more drugs" are particularly relevant to this text or to the focus of my posts here (let alone a crucial backdrop). The book is a casebook, not a polemic or a book putting forward some particular thesis about drug law/policy. It includes cases and materials intended to highlight different sides of the various issues it covers. For example, the book includes a relatively long excerpt of James Q. Wilson's "Against the Legalization of Drugs"--in my opinion, one of the best concise arguments in support of prohibition (which is why I decided to pay the copyright fee for it from my meager copyright permissions budget, even though I had to excise most copyrighted materials that required a fee for use).

I get the sense that you're eager to discuss drug legalization with me. To be sure, I agree the debate about these issues is very interesitng. But it just isn't the focus of the casebook or my posts: I'm not trying to advocate for any particular point of view here. I'm trying to encourage more people (current professors and prospective adjuncts) to teach courses on controlled substances law (and maybe sell a few books in the process. :) I'd love for qualified people with all points of view about drug policy to consider using my casebook. I believe the book could be used by a hardcore drug warrior AUSA, the most ideologically devoted libertarian drug policy reform advocate and anyone in between to teach a class on controlled substances law.

Beyond that, FWIW, my own view "we'd have a better county if…X" is only tangentially relevant to the question of whether we should criminalize something. For example, I think we'd have a better country if we were less superficial, with less plastic surgery, fewer photoshopped pictures of models adorning magazine covers, etc. But I don't think that's a sufficient reason to criminalize nose jobs, lock a delivery driver carrying a truckload of Vogue magazines in a cage for a lengthy mandatory minimum term, etc. … I'll have to leave it at that for now as I'm in London for a conference and need to get going.

Briefly in response to Joe's point about this being under appreciated, I agree with you that it is well understood in the drug policy literature and among attorneys who do a lot of drug cases in their practice. But it's a point that many outside of this area--even people who spend a lot of time thinking about other aspects of criminal law or criminal procedure--often miss or haven't thought out in detail. I've had more than one thoughtful criminal law/procedure professor express initial surprise that I have a separate investigations chapter in my book ("isn't that material already covered in criminal procedure?"). That is all that I meant by under appreciated--not that the lack of a complaining witness is a novel insight by any means, but that it's one a lot of people outside of particular niches haven't given a lot of attention to.

Posted by: Alex Kreit | Jun 23, 2013 2:35:43 AM

¿ Would the Feds/DEA fuss were I to offer for sale a parsec³ of uncut heroin ?

¿ Should the Feds/DEA fuss were I to offer for sale a parsec³ of uncut heroin ?

¿ Who is or would be the victim ?

Docile Jim Brady – Columbus 43209

Posted by: Just Plain Jim | Jun 23, 2013 7:13:32 AM

Alex --

Thanks for your response.

1. When a man quietly tortures puppies in his basement, there is no complaining witness on the charge of animal cruelty. When some guy sells booze to a 14 year-old before the drag race, there is no complaining witness (the purchaser is more than happy to have it). When some 12 year-old escapes her abusive stepfather and enlists with a (relatively) kind-hearted entrepreneur (sometimes known as a "pimp"), there is no complaining witness. And of course, as I pointed out, when the drug addict gets his hit -- either the one that kills him or some earlier one -- there is no complaining witness.

So of course I agree that in drug crimes, as in the others you don't mention, there is no complaining witness. What I disagree with is the implicit suggestion that, where there's no complaining witness, aren't we a little nuts to be making these things crimes? And that IS what you're getting at, isn't it?

2. "Now, I'm certainly not an experienced trial lawyer, but it seems to me that the problem with relying on cross examination alone in this circumstance is that witnesses might sometimes lie."

EVERY witness might lie. Indeed, there are many of us who thought the Attorney General lied when he told Congress there was no "potential prosecution" of a news reporter for whom the AG sought a criminal search warrant, and that the Director of National Intelligence lied when he told Sen. Wyden that NSA was not engaged in any widespread surveillance of citizens.

To say that witnesses might lie is simply to say that witnesses exist. Of course they are particularly likely to lie, or suborn others to lie, when they are correctly accused of a crime and want to find some way out of the impending conviction.

Your question was what alternative counsel had, other than to do what a defense lawyer would refer to as a "set up" by conspiring to engage in an illegal drug transaction. As noted, the alternative was to rely on the truth-testing procedures the law allows, rather than engage in vigilantism.

But your absence of trial experience shows. Before the government called the informant to the stand, it would have called the supervising case agent. It would have established through that questioning that the informant was selling drugs as part of a law enforcement operation -- the kind of operation long-since approved of by the courts. The AUSA would then have asked whether, during the operation involving the defendant AND LATER, the informant had continued to sell drugs as part of this operation, to which the agent would have said, "sure."

At that point, all the air is out of the defense balloon (which is why almost no defense lawyer tries the stunt you describe -- they know that nothing will come of it except their own arrest and conviction). When the informant takes the stand, there's no "surprise" to spring on the jury about how he's been continuing to work in the same sting that caught this defendant.

Defense counsel is perfectly free to make the (thoroughly routine) argument that the informant is a criminal, has a record, is trying to curry favor with the prosecutor, is even engaged in ongoing crime, and thus has every motive to lie. But that witnesses may lie is just part of a litigator's life -- and far more frequently a part of the prosecutor's angst than of the defense lawyer's.

Who do you really think lies the most? Police? Or drug dealers (and their associates)?

Again: My answer to your question is that counsel must rely on cross examination despite the known risk that witnesses may lie. What counsel does is ask questions designed to illustrate those risks to the jury.

And let me make one more point here: What defense lawyers really fear is not that informants will lie. It's that they won't.

I'll address your third point later. For now I will only say that you're being far too modest about your goals.

Posted by: Bill Otis | Jun 23, 2013 9:50:05 AM

Thanks for the reply. It's good to get a window into what other people think. It is sometimes hard to get a full picture.

Posted by: Joe | Jun 23, 2013 12:07:00 PM

I believe that We are under investagation however i haven't done anything I've its been two months now day and night survallance teams are in my trees and creek bed they are dressing to blend in at night they are climbing on top my home I'm scared and I feel totally helpless and NO there isn't any drug activity going on here. i need help what can i do about this Its not just one or two people its more like 30 or 40 people that i see on my survallance camera climbing in the trees and bushez to steak my family out dayy and night they know i see them so they don't make as muuch effort to hide anymore I've never saw anything like this before in my life I'm so scared i need help please anyone I live in a quiet little town in missouri in the countrt and i am liturally being stalked by these people HELP

Posted by: Nellie | Oct 7, 2013 10:36:44 AM

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