By Roger Roots
Abandonment of victim-driven, mostly private prosecution has led to consequences the Framers could never have predicted and would likely never have sanctioned. Even in the most horrific examples of colonial criminal justice (and there were many), defendants were rarely if ever entrapped into criminal activity. The development of modern policing as an omnipotent power of the state, however, has necessitated the simultaneous development of complicated doctrines such as entrapment and “outrageous government conduct” as counterweights.
It was not until the late nineteenth century that any English or American case dealt with entrapment as a true defense to a criminal charge.440 (The case law until then had been virtually devoid of police conduct issues altogether).441 Beginning in 1880, English case law slowly became involved with phenomena such as state agents inducing suspects to sell without proper certificates,442 persuading defendants to supply drugs to terminate pregnancy,443 and enticing people to commit other victimless crimes. Dicta in some English cases expressed outrage that police might someday “be told to commit an offense themselves for the purpose of getting evidence against someone.”444 Police who commit such offenses, said one English court, “ought also to be convicted and punished, for the order of their superior would afford no defense.”445
Entrapment did not arise as a defense in the United States until 1915, when the conduct of government officers for the first time brought the issue before the federal courts. In Woo Wai v. United States, the Ninth Circuit overturned a conviction of a defendant for illegally bringing Chinese persons into the United States upon evidence that government officers had induced the crime.446 Growth in police numbers and “anti-crime” warfare was so rapid that in 1993, the Wyoming Supreme Court wrote that entrapment had “probably replaced ineffectiveness of defense counsel and challenged conduct of prosecutors as the most prevalent issues in current appeals.”447
The growth of the use of entrapment by the state raises troubling questions about the nature and purposes of American government. Rather than “serving and protecting” the public, modern police often serve and protect the interests of the state against the liberties and interests of the people. A significant amount of police brutality, for example, seems aimed at mere philosophical, rather than physical, opposition. Police dominance over the civilian (rather than service to or protection of him) is the “only truly iron and inflexible rule” followed by police officers.448 Thus, any person who defies police faces virtually certain negative repercussions, whether a ticket, a legal summons, an arrest, or a bullet.449 One study found nearly half of all illegal force by police occurred in response to mere defiance of an officer rather than a physical threat.450
In the political sphere, police serve the interests of those in power against the rights of the public. New York police of the late nineteenth century were found by the New York legislature to have committed “almost every conceivable crime against the elective franchise,” including arresting and brutalizing opposition-party voters, stuffing ballot boxes, and using “oppression, fraud, trickery [and] crime” to ensure the dominant party held the city.451 In the twentieth century, J. Edgar Hoover’s FBI agents burglarized hundreds of offices of law-abiding, left-wing political parties and organizations, “often with the active cooperation or tacit consent of local police.”452 The FBI has also spent thousands of man-hours surveiling and investigating writers, playwrights, directors and artists whose political views were deemed a threat to the interests of the ruling political establishment.453
Police today are a constant agent on behalf of governmental power.
Both in the halls of legislatures and before the courts, police act as lobbyists against individual liberties.454 Police organizations, funded by monies funneled directly from police wages, lobby incessantly against legislative constraints on police conduct.455 Police organizations also file amicus curie briefs in virtually every police procedure case that goes before the Supreme Court, often predicting dire consequences if the Court rules against them. In 2000, for example, the police lobby filed amicus briefs in favor of allowing police to stop and frisk persons upon anonymous tips, warning that if the Court ruled against them, “the consequence for law enforcement and the public could be increased assaults and perhaps even murders.”456
Police disenfranchise the people
The United States of America was founded without professional police. Its earliest traditions and founding documents evidenced no contemplation that the power of the state would be implemented by omnipresent police forces. On the contrary, America’s constitutional Framers expressed hostility and contempt for the standing armies of the late eighteenth century, which functioned as law enforcement units in American cities.
The advent of modern policing has greatly altered the balance of power between the citizen and the state in a way that would have been seen as constitutionally invalid by the Framers. The implications of this altered balance of power are far-reaching, and should invite consideration by judges and legislators who concern themselves with constitutional questions.
Source: Seton Hall Constitutional L.J. 2001, 685. Used by permission of author. Roger Isaac Roots, J.D., M.C.J., graduated from Roger Williams University School of Law in 1999, Roger Williams University School of Justice Studies in 2001, and Montana State University-Billings (B.S., Sociology) in 1995. He is a former federal prisoner and founder of the Prison Crisis Project, a not-for-profit law and policy think tank based in Providence, Rhode Island. He is grateful to Duane Horton of Portsmouth, Rhode Island for his scrupulous proof-reading efforts and thoughtful insights.
Other parts in this series
Loss of private arrest power, rise of warrantless arrests by state actors — liberties largely fade, 4
440 See PAUL MARCUS, THE ENTRAPMENT DEFENSE 3 (2d ed. 1995).
441S ee id. at 3-4.
442 See Blaikie v. Linton, 18 Scot. Law Rep. 583 (1880).
443 See Regina v. Bickley, 2 Crim. App. R. 53, 73 J.P.R. 239 (C.A. 1909).
444 Brannan v. Peek, 2 All E.R. 572, 574 (Q.B. 1947).
446 223 F. 412 (9th Cir. 1915).
447 Rivera v. State, 846 P.2d 1, 11 (Wyo. 1993).
448 SKOLNICK & FYFE, supra note 63, at 102 (quoting Paul Chevigny).
449 See id. See also STOLEN LIVES, supra note 123, at 302. Kevin McCoullough, who was suing the City of Chattanooga for unjust imprisonment, was shot dead by police at his workplace after he allegedly threw or ran at police with a metal object. McCoullough had predicted his own murder by police in statements to co-workers. See id.
450 See id. (citing President’s Commission on Law Enforcement and Administration of Justice study).
451 See FRIEDMAN, supra note 58, at 154 (citations omitted).
452 JEFFREY REIMAN, THE RICH GET RICHER AND THE POOR GET PRISON: IDEOLOGY, CLASS, AND CRIMINAL JUSTICE 166 (5th ed. 1997).
453 See HERBERT MITGANG, DANGEROUS DOSSIERS (1988). The FBI kept a 207-page file on cartoonist Bill Mauldin, a 153-page file on book publisher Alfred A. Knopf, and a 23-page file on Lincoln biographer Carl Sandburg, for example. See id. at 249, 195, and 81.
454 The Fraternal Order of Police (FOP), the largest police organization in the United States, has over 270,000 members and has been named one of the most powerful lobbying groups in Washington. See National Fraternal Order of Police, Press Release, Sept. 17, 1997, available at <http://www.mofop.org/power>.
455 An example of the police lobby’s power is its ability to scuttle asset forfeiture reform. The International Association of Chiefs of Police (IACP) managed to keep congressional leaders from attaching forfeiture reform to budget legislation in 1999. See IACP, End of Session Report for the 1st Session of 106th Congress: FY 2000 Funding Issues, Jan. 17, 2000. See also Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America, 53 MD. L. REV. 271, 281 n.40 (1994). Police unions in many jurisdictions successfully thwart efforts to establish civilian review boards. See id. at 282.
456 See Richard Willing, High Court Restricts Police Power to Frisk, USA TODAY, Mar. 29, 2000, 4A.