Breaking the Law to Enforce it: Undercover Police Participation in Crime

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.

Keywords: police, undercover, covert, surveillance, criminal procedure, Fourth Amendment, discretion, guidelines, stings

JEL Classification: K42