Tim Cushing, Tech Dirt, November 19, 2019
Federal judges appear to be tiring of the government’s long-running entrapment programs.
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.
Judge Jane Stranch’s words — written for the Sixth Circuit Court of Appeals — were no less harsh.
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 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 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).
The government will need to produce paperwork showing how it initiates stings and how it decides on sting targets.
It’s unlikely anything turned over by the DEA will say “exclusively target Latinos and Blacks.”