Imagine a friend approaches you with an opportunity for what he believes will be easy money: a guy he met knows where some local drug dealers store their merchandise—a great big pile of it, fifty kilos, lightly guarded. Your friend’s guy thinks it could be grabbed relatively easily and flipped for a hefty profit. The whole thing sounds sketchy to you, but cash is tight this month and stealing from drug dealers does not feel like the most morally objectionable of crimes. Perhaps not the most sophisticated sort (and having watched a bit too much TV), you soon find yourself in a van on your way to the score.
Except there was no score—it never existed—and your friend’s "guy" is actually a police officer, whose colleagues arrive and arrest you and charge you with conspiracy to traffic in a controlled substance (the mythical fifty kilos) while carrying a firearm (your friend brought one along). Never mind that the drugs you are being punished for trafficking are make-believe—as is the place from which you were to steal them—you now face fifteen years in prison for indulging a yarn spun by the government.
These are, with some simplification, the facts of United States v. Conley, handed down last week by the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit felt itself bound to uphold the conviction, but not without first referring to the practice as “tawdry” and “question[ing] the wisdom and purpose of expending the level of law enforcement resources and judicial time and effort in this prosecution.” The Court of Appeals quoted from the trial judge’s opinion in the same case, who declared Conley’s fifteen-year sentence for an imaginary crime “devoid of true fairness … serv[ing] no real purpose other than to destroy any vestiges of respect in our legal system and law enforcement that this defendant and his community may have had.” The trial judge was required however to impose it due to mandatory minimum sentences set by Congress.
The Seventh Circuit is not the first to encounter this practice of prosecuting hypothetical criminals for crimes of the government’s concoction, nor the first to express its displeasure. The opinion itself cites eight other opinions from around the country that take a dim view of this gimmick. One judge on the Sixth Circuit declared “the concept of these ‘stash house sting’ operations [is] at odds with the pride we take in presenting American criminal justice as a system that treats defendants fairly and equally under the law.” Another, on the Third Circuit, argued “the potential for abuse and mischief [here] is endemic.” Yet, in case after case, courts give the thumbs up.
Perhaps the most disturbing aspect of this ploy is that it empowers the government to define the crime it is inventing. Since drug sentences are tied to the weight of the drugs at issue, the officers can inflate the sentence by inflating the imaginary bag of drugs. Since they made up a stash house with fifty kilos, Conley was charged with fifty kilos, if they’d said two kilos, or three hundred, or one million, the sentence would have been different—criminal justice as magical realism.
The average reader may well wonder why this could be considered anything other than entrapment. After all, if the government told you to commit a crime it should not have the gall to demand you be punished for it—a sort of inverse of the traditional definition of chutzpah, where the man who killed his parents asks the court to take mercy on him as an orphan. But the entrapment defense is very narrow, creating results that would be farcical if they were not so tragic. Take Conley: because the government agent didn’t go to Conley directly but to his eventual associates who in turn recruited Conley, the Seventh Circuit held Conley couldn’t claim entrapment. The government may therefore concoct a conspiracy and induce one party to carry it out, who then recruits third parties to help him. After all are arrested, the primary party, who has a potential claim of entrapment, is given a reduced sentence for testifying (as happened in this case), and they throw the book at whoever else was ensnared.
And to what end? Advocates of more aggressive criminal law enforcement warn we are experiencing a new crime wave; the claim seems dubious, but even if it is true, the mind boggles as to how it improves matters to let the government make up nonexistent crimes to punish. Surely those resources could be better focused toward those pursuing violent ends on their own initiative? Given the bulging seams of our current prison capacity, what good does it do to shackle unsuspecting rubes with decades-long sentences of the government’s manufacture? Yet the mischief will continue until courts stop simply gritting their teeth and start showing some judicial grit.