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Abstract:
In the wake of the September 11 attacks, undercover policing has become an increasingly important law enforcement tool in the United States and in Europe. More frequent deployment of covert tactics has confronted democratic governments with difficult questions about these extraordinary operations should be controlled and conceptualized. How ubiquitous should covert tactics become, and how should regulatory systems respond to their increased importance? What are the challenges of taming the constantly changing and highly contested practices of undercover policing, which stubbornly resist oversight? Legal systems differ in their concerns about undercover surveillance and in their willingness to deploy covert agents and informants against a spectrum of perceived threats ranging from national security dangers like terrorism or political and religious extremism to organized crime, drug trafficking, and more ordinary forms of criminality. In most democracies, political elites, legal actors, and critics agree that undercover investigations are in some sense a necessary evil. But national legal systems vary in what they mean by that. They have disparate conceptions of what makes covert investigations troublesome; of the proper goals of infiltration; and of the mechanisms by which undercover tactics should be legitimated and controlled. In short, legal systems forge different regulatory compromises and accord different degrees of legitimacy to the "necessary evil" of covert operations.

Much of the scholarship about undercover policing in Europe has focused on doctrine. My study examines undercover policing empirically, through 89 qualitative, open-ended field interviews that I conducted with state and federal police officials, undercover agents, training and supervisory officials, control officers, prosecutors, and judges in fifteen of the sixteen German states. Through these interviews, I examined the ground-level strategies and practices of those who conduct, supervise, and evaluate covert operations.

My empirical study examines German undercover policing as both a topic in its own right and as a contrast case that helps identify distinctive features of the American system of covert operations. The systems under comparison can, in Clifford Geertz's words, "form a kind of commentary on the other's character." Each can suggest what is important and troubling about the other. Each can highlight features of the other that would seem less noteworthy if examined in isolation, without the benefit of comparison.

Abstract:
This article examines fundamental differences in how the United States and Italy think about, regulate, and attempt to legitimate undercover policing. It identifies a number of ways in which normative differences between American and Italian regulation impede transnational cooperation in covert investigations. The article also uses the insights gained from the contrast between the Italian and American regulatory approaches to hypothesize about the prospects for convergence on shared regulatory norms and the institutional impediments that such changes would face in Italy. The article is based on extensive field interviews with Italian police officials, prosecutors, and judges, and on an array of sources that illuminate law-in-action, including police manuals, ministry guidelines for conducting undercover investigations, and training materials.

Both the American and Italian criminal justice systems treat undercover policing as problematic, but in strikingly dissimilar ways. American regulation focuses primarily on the risk that covert operations may distort behavior and encourage crime in the process of exposing it. By contrast, Italy especially emphasizes how undercover policing poses a threat to the rule of law - in particular, to the principle that the criminal laws apply to everyone, police officer and civilian alike. In the Italian legal system, the central dilemma of undercover policing is that allowing undercover agents to participate in the offenses they investigate (e.g. by purchasing contraband) implicates them in crimes and thus violates the principle that the criminal laws apply to the police along with the rest of society. Given this concern, Italian criminal procedure proceeds from the rule that undercover agents may not violate criminal laws in their undercover rule unless a statute expressly exempts them from criminal liability for doing so. Italy applies to its agents what I term “societal norms” - rules that apply to society in general rather than to the police in particular. By contrast, the American legal system does not assume that undercover conduct is per se criminal. American regulation of undercover investigations rest on the assumption that undercover operations need to be bounded through norms specific to government actors, that is, “police norms.”

The difference between Italian use of societal norms and American reliance on police-specific norms expresses itself in the two systems’ contrasting conceptions of entrapment. In the United States, entrapment is a defense afforded to targets. It is a violation of investigative norms specific to governmental actors. In Italy entrapment is a crime committed by an undercover agent when he provokes a target to commit an offense. It is a form of accomplice liability that imposes criminal liability on the undercover agent along with the target. This Italian conception of entrapment-as-complicity embodies the notion that entrapment is a violation of a societal norm.

These fundamental differences between the American and Italian undercover policing systems present underappreciated obstacles to international cooperation in transnational undercover investigations. Advocates of closer coordination do not sufficiently emphasize or appreciate how extensively Italy would need to transform its domestic policing regimes to try to facilitate covert operations with American agencies. Better collaboration would require fundamental changes in a multiplicity of areas whose connection to undercover policing is not readily apparent: for instance, in the interaction of informants and police; in the rules of evidence, including the use of suppression remedies; in the defenses allowed to suspects; in the independence of Italian prosecutors from judicial oversight and executive accountability; and in the range of discretion permitted to prosecutors and judges. A comparison between the United States and Italy illuminates some of the dynamics involved in harmonizing regulatory regimes premised upon different norms.

policing, comparative, criminal justice, criminal procedure, organized crime, italy, harmonization, globalization

Abstract:
It is well-known that undercover investigations influence and sometimes distort the crimes they seek to expose. This is the problem that the entrapment defense is designed to address. What has not yet been recognized, however, is that the investigator's influence on crimes is also a problem for the law of evidence. Undercover operations can be used to gather information on a crime shaped or prompted by the investigator (which I term a contrived offense) as well as on wrongdoing that occurs without government intervention (which I call an independent crime.) The ease of documenting the former tempts investigators to forego the arduous task of proving the latter. Yet the same evidence that proves a contrived offense may also corroborate an independent crime. This article argues that contrived offenses are at best proxies for the independent crimes that legitimate the investigation. Because of the investigator's influence, contrived offenses are inherently flawed substitutes for independent crimes. Invoking best evidence principles, this article argues that the rules of evidence should be reformed in ways that will motivate prosecutors to put evidence of contrived offenses to its best use: proving independent crimes.

evidence; criminal procedure; policing; undercover policing; criminal law

Abstract:
Among investigative tactics, undercover policing is unique in the extent to which it allows the police to shape the events they investigate. Yet this shared feature of undercover investigations produces very different academic controversies in the United States and Europe. European scholars fear the implications of legalizing tactics that had previously been tolerated, if at all, at the margins of legality. By contrast, American commentators seek to unsettle what they view as complacency about a tactic that is used far more widely in the United States than in Europe. In Italy and Germany, a long tradition of scholarship in criminal law treats police infiltration as a problem of government law-breaking. In France, a distinguished sociological tradition views undercover tactics as a privileged terrain of turf warfare between competing government agencies. Because of their interest in the entrapment defense, American academics focus largely on the criminal responsibility of targets, not operatives. More recently, American and European scholars have shifted their interest away from the criminal law, with its emphasis on the individual criminal liability of targets and undercover operatives, toward the exploration of new means for distributing responsibility among complementary institutional actors like police, prosecutors, and judges. Undercover policing has thus increasingly become a problem of criminal procedure, in which undercover tactics have come to be framed as threats to privacy, freedom of association, trial rights, and other civil liberties. As criminal investigations become increasingly transnational, criminal procedure has provided a shared framework of criticism and a familiar repertoire of solutions, facilitating national comparisons and sometimes muting national differences in regulatory norms and approach.

criminal procedure, entrapment, covert operation, privacy, deception

Abstract:
Scholars who compare common law and civil law countries have long argued that civil law legal systems such as Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision makers. This article challenges this widely held view. Scholars have failed to recognize that evidentiary rules can restrict not only the presentation of evidence at trial but also the manner of its acquisition during the pre-trial investigation. For this reason, existing scholarship overlooks a rich source of evidentiary norms in the criminal process of civil law countries such as Germany. I argue that German regulation of police interrogation particularly its prohibition of deceptive stratagems plays an important role in shaping the factual record on which the legal system assesses guilt or innocence. The article identifies a number of institutional factors on which this system of pre-trial evidentiary regulation depends.

Abstract:
Different countries vary significantly in their attitudes to the legitimacy of undercover investigations and in their approaches to regulating them. This review essay examines two wide-ranging anthologies that have collected the contributions of legal scholars, sociologists, criminologists, police officials and policymakers in an effort to illuminate the differing national contours of the debate about undercover policing: Undercover: Police Surveillance in Comparative Perspective, Cyrille Fijnaut and Gary T. Marx, eds. (Kluwer, 1995), and Undercover Policing and Accountability from an International Perspective, Monica den Boer, ed. (European Institute of Public Administration, 1997). The essay goes beyond the books under review to identify nine separate tradeoffs among competing goals, interests, and strategies in undercover operations that different countries negotiate in dissimilar ways, but which all of them must confront. This is the main contribution of the review. Distinguishing policy, institutional, and political tradeoffs makes it possible to understand the variety of approaches to domestic and international undercover policing as compromises struck between competing values and techniques. The essay also explores the ways in which these tradeoffs have been complicated by the growing importance of transnational undercover investigations after the September 11th attacks.

criminal law, criminal procedure, comparative, undercover policing, terrorism, covert investigations, police methods

Abstract:
This article explores forms of multiple punishment that have escaped constitutional scrutiny. Through the Double Jeopardy Clause, the Constitution forbids the imposition of multiple punishment for one offense. Yet despite the intense commitment of courts and commentators to recognizing and rooting out multiple punishment, they have overlooked the place where multiple punishment most proliferates: under the United States Sentencing Guidelines. Double Jeopardy jurisprudence ignores multiple punishment under the Guidelines because it diagnoses a Double Jeopardy violation only when the charges under which punishment is imposed define the same offense. Yet the Guidelines threaten multiple punishment even when the crimes charged are not the same. This article identifies three principal forms of double punishment that result from the redundant application of Guidelines sections. Of course, cumulative punishment may not, in all instances, be impermissible. This article uses German approaches to cumulative punishment as a contrast case in order to suggest criteria for evaluating the propriety of redundant penalties under the Guidelines. These criteria invite courts to redirect Double Jeopardy analysis. Courts should not only ask, as they currently do, "What makes offenses 'the same'?" In addition, they should inquire, "What makes punishments multiple?" Doing so will enable courts to better recognize unfair multiple punishment under the Guidelines. It will also help them to make principled choices between concurrent and consecutive sentences for nominally distinct offenses.

double jeopardy, multiple punishment, sentencing, criminal law, criminal procedure, comparative law, German law

Abstract:
In the wake of the Supreme Court's decision in Apprendi v. New Jersey, commentators and judges have proposed a variety of additional limits on the permitted bounds of fact-finding at sentencing. Jurists and academics have commonly assumed that objections to the fact-finding role of the sentencing judge are essentially unitary. They argue over whether certain sentencing factors are "really" offense elements. This diagnosis obscures as much as it reveals. My article argues that the impetus to recast more and more sentencing factors as offense elements masks a cluster of different-and distinct-dissatisfactions with the sentencing process.

The confluence of four separate concerns about sentencing motivate the current drive for reform: (1) judges impose strict liability for aggravating circumstances; (2) they increase sanctions for mental states of heightened culpability (e.g., specific intent, racial animus); (3) they punish for uncharged conduct; and (4) they take into account acquitted conduct. Since there is not one problem that reformers need to confront, but several, no unitary solution can adequately address these different concerns. Disaggregating the component problems is the first step toward offering a remedy. This article suggests possible responses to each of the four problems. In three of the four instances, the article concludes, the most effective solution does not implicate the distinction between offense elements and sentencing factors.

criminal law, criminal procedure, sentencing, Apprendi, due process

Abstract:
The Supreme Court's recent opinion in Apprendi v. New Jersey requires the government to prove sentencing factors to a jury beyond a reasonable doubt if such factors increase the maximum potential penalty. In effect, such sentencing factors will be treated as elements of the offense. This article questions a central assumption implicit in Apprendi's own argument and in the Supreme Court's decision: that proving sentencing factors to a jury at trial will benefit defendants. The article highlights a number of unintended consequences of treating sentencing factors as offense elements. Defendants will find themselves in the unenviable position of having to choose between maintaining their innocence and mitigating guilt at trial. Bifurcating fact-finding is not a workable or principled solution to this dilemma. Plea bargaining will become more complicated as "fact bargaining" joins "charge bargaining," undermining the fundamental goal of proportionality. Legislatures may be tempted to draft around the new constitutional rule by transforming the flexibility in sentencing from a process of ratcheting up to ratcheting down. Instead of allowing aggravating circumstances to increase punishment, the legislature might set the initial penalty for an offense at a higher level and allow only downward adjustments through opportunities to mitigate. But insofar as this strategy systematically shifts burdens of proof onto defendants, it will invite further constitutional challenges and hence more uncertainty.

criminal law, sentencing, apprendi