Federal Judge Asks DEA To Explain Why All 179 Of Its Stash House Sting Targets Are Minorities
from the stings-themselves-still-problematic-even-without-the-bias dept
Federal judges appear to be tiring of the government’s long-running entrapment programs. One of the federal law enforcment’s favorite “enforcement” efforts is creating crime in order to bust “criminals.” Agencies like the ATF and DEA find someone in need of cash — usually a minority someone — and use undercover agents and confidential informants to convince them to raid a drug stash house for some easy money.
The twist is the drug stash house is fake. There are no drugs. There are no armed guards protecting the drugs. Once the mark arrives with a weapon and a plan of attack, the ATF arrests the person for thinking about robbing a fake stash house to steal nonexistent drugs.
The other twist is the prosecution. Since the drugs never existed, the ATF is free to claim the targeted stash was large enough to trigger mandatory minimum sentences.
A handful of judges have already found stash house stings to be a questionable use of government resources, if not ultra-shady operations that put the government in the position of being the judge and the jury by fabricating drug amounts to ensure longer sentences are handed down.
Here’s what federal judge Ruben Castillo had to say about stash house stings:
It is undisputed that between 2006 and 2013, the defendants charged in this District in the ATF false stash house cases were 78.7 black, 9.6 percent Hispanic, and 11.7 percent white. During this same period, the District’s adult population was approximately 18 percent black, 11 percent Hispanic, and 63 percent White. These numbers generate great disrespect for law enforcement efforts. Disrespect for the law cannot be tolerated during these difficult times. It is time for false stash house cases to end and be relegated to the dark corridors of our past. To put it simply, our criminal justice system should not tolerate false stash house cases in 2018.
Castillo also noted that the government never engaged in this type of borderline entrapment during the darkest days of Prohibition.
[E]ven during the low points of the great violence caused by the alcohol wars of Prohibition, the ATP did not seek to use “false alcohol warehouse” tactics against any ethnic organized crime groups to promote public safety.
Judge Jane Stranch’s words — written for the Sixth Circuit Court of Appeals — were no less harsh.
The unseemly nature of the Government’s activity is emphasized by its failure to achieve its declared goals of jailing dangerous criminals and making our streets safer. Evidence showing that these hurry-up set-ups achieve the stated goals was not proffered and the facts here demonstrate why: no known dangerous individuals or criminal enterprises were researched or targeted and no pre-existing drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully employed young man with no criminal record.
Unfortunately, the court found no way to reverse the sentence handed down. The barriers to a successful lawsuit against a federal government agency are almost insurmountable, and the ATF knows this, so it has no reason to stop performing the laziest form of “enforcement” it can engage in.
Judge Otis Wright tore into the ATF in his decision as well:
In these stash-house cases, the Government’s “participation in the offense conduct” is what makes them particularly repugnant to the Constitution. Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands.
The end result was only five years shaved off the defendant’s 19-year sentence — a sentence that rested solely on the ATF’s claims about the total weight of the nonexistent drugs in the nonexistent stash house the defendant never raided.
Perhaps the remedy lies somewhere earlier in the process, well before mandatory minimum sentences — prompted by government agents’ claims about nonexistent drugs — are imposed. Judge Jed Rakoff is demanding the government produce some evidence that its stings don’t primarily target minorities.
This case involves a DEA sting operation utilizing a number of fictitious drug shipments. They follow the same pattern as the ATF’s stings. The government approaches its marks and tries to talk them into robbing fake drug dealers of their fake drugs. Then it swoops in and arrests its dupes the moment they start moving forward with robbery suggested by the government.
The opening paragraph of the order [PDF] makes it clear Judge Rakoff thinks these stings are bullshit:
By their very nature, so-called “reverse sting” operations, in which the Government creates the illusion of crimes in order to catch would-be criminals, are open to potential abuse, since they are not cabined by the demands of reality, but only by the vagaries of imagination.
The seven defendants in this case — all “men of color” — are arguing the government is engaging in selective enforcement by primarily targeting minorities with sting operations. Judge Rakoff appears to think that might be true. Or, at the very least, the government should be obliged to explain why every single one of its sting efforts result in arrested minorities.
After some discussion about which discovery standard should be applied to selective enforcement allegations, the court comes to this conclusion:
[T]he appropriate standard is that where a defendant who is a member of a protected group can show that that group has been singled out for reverse sting operations to a statistically significant extent in comparison with other groups, this is sufficient to warrant further inquiry and discovery.
Here, defendants have presented evidence that not a single one of the 179 individuals targeted in DEA reverse sting operations in SDNY in the past ten years was white, and that all but two were African-American or Hispanic. This is in stark contrast to the racial makeup of New York and Bronx Counties, which are 20.5% African-American, 39.7% Hispanic, and 29.5% White. This is also in contrast to NYPD crime and enforcement data for felony drug arrests (42.7% African-American, 40.8% Hispanic, and 12.7% White), firearms arrests (65.1% African-America, 24.3% Hispanic, 9.7% White), and robbery arrests (60.6% African-American, 31.1% Hispanic, 5.1% White).
And, just in case the government wants to argue this is merely a statistical fluke, the defendants also have some expert testimony they’d like the DEA to attempt to rebut.
Furthermore, defendants have provided compelling expert analysis demonstrating that these numbers are statistically significant. According to a rigorous analysis conducted by Dr. Crystal S. Yang, a Harvard law and economics professor, it is highly unlikely, to the point of statistical significance, that the racially disparate impact of the DEA’ s reverse sting operations is simply random.
Here’s how Yang explains the unlikeliness of 177 of 179 targets being “randomly” Black or Latino:
[U]nless the pool of similarly situated individuals is comprised of at least 96.0% Latinos or Blacks~ it is highly unlikely that one could get a sample of 179 targeted individuals where 177 or more individuals are Latino or Black.
The government will need to produce paperwork showing how it initiates stings and how it decides on sting targets.
Accordingly, and for now, discovery will be limited to the Government providing to the defendants, by no later than November 22, 2019, (1) all DEA manuals, circulars, protocols, and the like that provide guidelines for how and when reverse stings should be originated; and (2) all notes, memoranda, or other investigative material showing how defendants were identified and evaluated as targets in this particular reverse sting operation.
It’s unlikely anything turned over by the DEA will say “exclusively target Latinos and Blacks.” But this won’t help the government, which will still need to explain how guidelines and protocols that don’t insist on targeting minorities seem to produce nothing by minority defendants. And if it can’t explain that to Judge Rakoff’s satisfaction, the claims of selective enforcement will move forward.
More judges should push back against “reverse sting” operations. There’s been no evidence offered these operations do anything more than put harmless people behind bars for years. When the targets are fake drugs and fake drug runners, zero drugs/drug runners are being taken off the streets.