Wednesday, September 13, 2017

How Far Should Undercover Police Be Able to Go to Catch Criminals?

by Sherry F. Colb

In my column for this week, I examine the practice of undercover police officers, sanctioned by at least three states, having sexual contact with suspected prostitutes. The alleged purpose of this sexual contact is to help catch the suspected prostitute agreeing to exchange sex for money. The theory behind the allowance is that if sex workers know that police are prohibited from having any sexual contact with suspects, then sex workers will ask police to touch them sexually before agreeing to exchange sex for money. If a prospective customer refuses to touch them, then they will know they are dealing with a cop and will refrain from any further commercial activity. In the column, I consider three perspectives, that of a feminist/anti-trafficking advocate, that of a libertarian, and that of a moralist, and discuss, for each one, how the allowance for sexual contact between police and suspected prostitutes would fare.

In this post, I want to consider the more general question of what undercover police officers should be able to do in their efforts to persuade their suspects that they, the officers, are actually fellow criminals in whom the suspects can place their trust. The ideal for undercover police officers is that they simply provide an opportunity for a suspect to commit his crime and that they (the police) do not do anything that is uniquely tempting or that pressures the suspect to do something that he would not otherwise do. Such excessive temptation or pressure, if great enough, could later be deemed entrapment by a court, a finding that would serve as a defense for the suspect in a criminal case.

Potential entrapment is not, however, the only ethical problem involved in undercover operations. In the above example, when police fondle a sex worker's breasts in order to come across as a bona fide customer, police are arguably sexually exploiting the sex worker, quite apart from any possible entrapment. That they are doing so in order to pave the way for arresting the sex worker probably makes their behavior more rather than less exploitative. With a crime like prostitution, where even those who believe it is in theory victimless must acknowledge that practitioners are frequently the victims of violence and are regularly in danger of rape, pretending to be a customer essentially involves pretending to be one of those people who might be interested in hurting the target. When that pretense involves touching the target sexually, the officer treats the target as an object. And on some definitions, the touching could resemble a sexual assault by deception (because police are misrepresenting a material fact in order to get sexual consent). Doing what it takes to catch a prostitute may thus amount to what is arguably the abuse of the suspected prostitute.

Another set of difficulties that arise with undercover work involves the need to commit crimes against third parties in order to seem like an authentic criminal. Say a police officer has successfully infiltrated a violent drug gang. Gathering evidence against the gang is unquestionably an important objective, because it will help get dangerous, violent people off the street. But one cannot be scrupulously law-abiding and expect gang members to accept one as part of a gang. So how far should the illegal behavior go? Most of us would accept an undercover cop's violating the speed limit to convince the gang members that he is one of them (after all, police speed in their own vehicles all the time).  We might also accept the officer's using drugs with the gang members to prove his bona fides (because many of us do not regard drug use as inherently wrongful). But what if the gang commits a robbery? Would we accept the officer's participation in the robbery as a getaway car driver? If so, then what if he goes into the bank with the other robbers? Does it matter that they would commit this robbery anyway, whether or not the police officer came along? Does that make his participation, as driver or fellow robber, harmless?

I am inclined to say that being the getaway car driver would be acceptable. This is partly because the gang members are not really "getting away" when the cop drives them, because he is later (presumably) going to testify against them based on what he has witnessed, including what they say about the robbery while he is driving them "away." I am less sure about his going into the bank with them. If he plans to make an arrest immediately after they order a teller to hand over money, then maybe that would be okay. On the other hand, there is a risk of people getting killed at that point, and by going along with them to the robbery site, he has played a role in facilitating their getting to the point where they might potentially kill someone. And what if he is trying to build a bigger case against the group, so he does not intend to stop them from committing the robbery? Then it feels awfully troubling to have him acting the part of a bank robber, threatening innocent civilians' lives, just to build a larger case against his fellow robbers.

The possibilities do not stop here, however. Undercover police might find themselves in a position in which they are expected to kill someone or else expose themselves as an officer and potentially be killed themselves. For instance, what if the gang gets into an unexpected firefight with members of a rival gang? If the undercover officer stands by doing nothing he will have "outed" himself as either a police officer or, at the very least, as someone other than what he claims to be. This could get him killed. But what is the alternative? Should he shoot at people? What if they are shooting at him--does that make it self-defense? Should he shoot to miss? And if he is asked to kill a particular person, does the fact that the target is a "bad guy" who may be interested in killing him (along with the other members of the gang) make it okay for him to kill this person? A fascinating movie entitled "Deep Cover," starring Laurence Fishburne, explores some of these issues and is worth watching.

Undercover operations perhaps inherently pose ethical dilemmas for those involved in them. For example, when an animal rights activist goes undercover as a slaughterhouse worker in order to expose the horrific cruelty that happens at a slaughterhouse, that activist must help slaughter animals in order to keep her job so that she can reveal everything. But her whole reason for going undercover is that torturing and slaughtering innocent, helpless animals for food that people do not need is an atrocity that cannot be justified. If so, then what is she doing participating in that atrocity? Do the ends justify the means? Well, when footage of slaughterhouses emerges from such operations, it is worth exposing people to it, but it remains unethical to slaughter an animal, even if the goal is to expose the fact that animal slaughter is wrong. I suppose this means that I am not a utilitarian, because the latter would be open to the argument that the ends justify the means.

Ultimately, then, undercover work regularly involves the undercover worker in activities that are wrongful and that must be justified, if at all, on the grounds that the ends justify the means. One must therefore subscribe to utilitarian principles, where morality demands maximizing good outcomes, however one does that. I suppose (that in this domain at least) I lean more toward the deontological way of thinking, whereby some acts are simply wrong, even when they are carried out to serve some higher purpose. And, as Michael Dorf pointed out in a related blog post a couple of years ago, although it may be possible for deontologists to justify utilitarian calculations that aim to "maximize rights" in some respects, it is very difficult to do so by participating directly in their violation.


Joe said...

This enters into the calculus of being a member of the Trump Administration if you are a somewhat less than usually trollish Republican etc.

T Jones said...

Your distinction between an undercover police office participating in a bank robbery as a robber versus as the getaway driver is troubling. In both cases the officer is facilitating the creation of a situation where innocent members of the public will be put at risk.
Arguably, once a police officer becomes aware that a specific crime is planned, her obligation is to prevent it, particularly when permitting it to go forward creates the possibility that someone will be harmed (emotionally, psychologically, or physically - not to mention the almost certain likelihood of monetary losses). The argument that if the officer did not participate someone else would is a pretty slippery ethical slope.

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Joseph said...

Prof Colb,

I agree with the subtext of your post that it is difficult to draw a bright line; and I agree with your bottom line that the ends cannot justify the means.

Yet I think we can distinguish between that which is necessary to catch criminals and the abandonment of legal duty in many cases.

As tjones explains, whether the officer goes into the bank or waits in the getaway car is immaterial. To illustrate: if he were a bona fide conspirator, and a killing occurred during the robbery, the felony-murder rule could apply in either case. Where a crime is in progress there is a duty to stop it. The goal isn't merely to not let them get away but to stop crime from occurring. You are addressing exceptions, but I think it indispensable to recognize the general rule first. And the bank robbery example is where the general rule dominates.

In your prostitution example, the ethics are complicated (or uncomplicated?) by the fact that the woman may not be a prostitute. If the activity proceeds with no request for payment, how far can an officer go? If followed through to the end and still no payment request, did the officer behave ethically? Under the utilitarian view I guess not. What if the officer, at the end, offers payment and the woman accepts? In that case there are evidentiary issues and it starts looking something like entrapment but quite possibly not.

I think my deliberately naive view is useful. While police are under no compulsion to presume innocence, police acts should be judged on a presumption that the targets are in fact innocent. That an officer is on the lookout for crime in his interactions with others is in a sense exploitative but that doesn't render it inappropriate. Otherwise we would generally forbid police questioning without a lawyer. When officers claim to know more than they do or cajole suspects into doing the right thing in the course of an interrogation, that kind of pressure is deemed acceptable, subject to constitutional limitations. The suspect may be innocent or may be guilty, but we can judge the officers' actions on their own merits.

So where an officer engages in seemingly consensual and invited activity with a woman, is he abandoning a legal duty? I don't know that there is an easy answer. I take the ethical issues you raise here and in your column seriously but I don't think it possible to reconcile the issues you raise (which are to some extent, as you recognize, at odds with the law) and investigation of crime. We can ask a broader question: whether it is appropriate for police to use sexual interaction as an investigatory tactic? Maybe the answer is "sometimes," much as I'd like it to be, "no."

As to speeding, we recognize that can be a valid action for police officers depending on the circumstances. That there isn't really an ethical issue simplifies the matter. On drug use, there are both legal and ethical issues. As with sexual activity, I lean toward it not being an acceptable investigatory tactic.

Now, however, where might we recognize exceptions to a legal duty to avoid engaging in certain activities? Where an officer's safety is on the line and there is no immediate risk to others he might have to engage in certain prohibited/dubious activities. Consider the case of ATF agent Jay Dobyns where he faked committing murder and was able to contrive circumstances where he could avoid engaging in sexual activity with women. On those matters, I think that is a model to follow. While inevitable for an undercover officer to engage in some prohibited or unethical activity, I think it needs to be avoided to the extent possible.

The difficulties you discuss also may point to a flaw in laws prohibiting certain activities or in the definition of entrapment.

Sam Rickless said...

Consulting my own intuitions, I find it interesting that, although I do not eat meat and do not approve killing animals for food, it seems easier to justify killing animals at a slaughterhouse in order to expose what the slaughterhouse workers do than it is to justify killing human beings as part of a drug gang in order to gain the trust of, and thereafter nab, the gang leaders. What explains the difference? The most straightforward explanation is that although non-human animals have significant moral status, the moral status that they enjoy is not equal to the moral status of human persons. The classic dilemma (save the pig or save the human being) suggests as much.