CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, August 17, 2009

Featured Download: Joh on Breaking the Law to Enforce It

CrimProf hopes to provide for criminal law and procedure types the same convenient method for keeping up with recent SSRN posts that my former San Diego colleague, Larry Solum, provides for the general legal theory crowd on his Legal Theory Blog. I cannot hope to read every manuscript about which there might be sufficient interest to justify posting an abstract, but when I do have something more to say than "Here is the abstract," I will signal that fact by designating the manuscript as a "featured download." Of course, this designation should be taken more as an indication of my own personal interests than as an opinion about how the manuscript stacks up against all those that I haven't read.

Here's the first:

Joh Elizabeth E. Joh  (U.C. Davis School of Law) has posted a comprehensive and nuanced treatment of a problem described well by its title: Breaking the Law to Enforce it: Undercover Police Participation in Crime (Stanford Law Review, Vol. 62). Here is the abstract:

In Breaking the Law to Enforce It: Undercover Participation in Crime, I draw attention to a common but seldom examined police practice: permitting undercover police to engage in criminal activity in order to further an investigation. In covert operations police have, for example, established fencing businesses that paid cash for stolen goods and testified falsely in fictitious legal cases in actual courts. This practice of authorized criminality is secret, unaccountable, and in conflict with some of the basic premises of democratic policing. And to the extent that authorized criminality presents mixed messages about their moral standing, it undermines social support for the police. Despite the fact that authorized criminality raises some of the most fundamental questions regarding the police in a democratic society, it has seldom been the topic of scholarly investigation. Moreover, there is little meaningful regulation of a policing practice that is rich in complexity and paradox. By drawing attention to the harms posed by authorized criminality, the article invites a broader discussion about the normative tradeoffs and limits of deceptive investigation.

There is much to admire in this piece, including its collection of some of the publicly known examples of the practice, analysis of the various rules that bear on the practice indirectly, overview of the occasional efforts to regulate it, review of the risks posed to undercover agents by their activities, balanced assessment of reform possibilities, and suggestion of reasons that academics might not have paid more attention to this aspect of police practice. I might be more receptive than Professor Joh to the possibility that internal departmental guidelines, even if somewhat general and unenforceable (like current federal guidelines), might be both salutary and the best that we can hope for here, but differences of this kind are to be expected when difficult issues are at hand.


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