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Gary T. Marx
You must first enable the government to control the governed; and in the next place, oblige it to control itself.
The answer to Juvenal's question for despotic regimes may be "no one." The guards are a law unto themselves, and with respect to the public are relatively uncontrolled.1 But in the United States with its pluralistic system, the executive, legislative and judicial bodies watch and constrain each other. Outside institutions such as the mass media and professional associations (American Bar Association and International Association of Chiefs of Police) and public interest groups concerned with democracy and civil liberties also play a role.
However the guards are also expected to guard themselves. Self-regulation is a central tenet of professionalization. In the case of law enforcement, by careful selection, training, policy, and supervision the guards are expected to keep their own house in order. Day-to-day responsibility lies with self-control on the part of individual agents and bureaucratically defined supervisory roles, internal affairs units and inspectors general.
This paper focuses on one means of self-regulation which has recently become much more important: undercover tactics.2 The topic of undercover work is rich in complexity and paradox. If we wish to see the guards guarded using these means how is this best done? What are the risks and costs to other important values? If an undercover policy works and is legal, is it therefore necessarily good public policy? Should those in positions of authority be subject to greater restrictions on their liberty because of the greater temptations they face? Can we be sure that the evidence discovered is not itself simply an artifact of the investigation? How should we balance the access to evidence that may be otherwise unavailable, with the invasions of privacy and other unintended consequences that may be present? Will the internal use of covert means lower morale and productivity and mean less risk-taking and innovation? With multiple agencies with overlapping jurisdictions, can authorities avoid ensnaring each other in their traps? Is it appropriate to do good by doing bad? When the state uses deception does it set a bad example, modeling and legitimating the use of deception for its citizens? Given the power of the tactic to tempt and entrap, can political targeting be avoided? These issues run throughout the examples we consider and are discussed in the concluding section.
The Expansion of Covert Policing
As was noted in the introductory chapter, changes in crime patterns, public attitudes and law enforcement priorities, in conjunction with organizational, legislative, judicial and technical changes, supported the general expansion of the undercover technique. But brief mention can be made of several judicial, legislative, and resource factors that are particularly relevant to the increased internal use of the tactic.
The civil rights movement helped call attention to the inequality in law enforcement that exists when government focuses only on the violations of the poor, while ignoring those of the rich and powerful. In addition, public indignation over the Watergate scandal involving former President Nixon and related abuses both reflected and contributed to the declining tolerance for white collar violations. The struggle against the corruption of authority is one strand of that. The diffuse, often victimless quality of corruption lends itself well to discovery via covert means.
Federal legislation such as The Hobbs Act and the 1961 Travel Act have come to be applied to anyone who obstructs interstate commerce3/4 including those who offer bribes, and this has been applied to local and state officials and not just to federal officials. Interstate commerce can be obstructed because of a threat of violence and direct extortion, or merely by obtaining government benefits passively "under color of official right." This "federalization" of local offenses has reduced the burden of proof for prosecutors and helped open the way to the vast increase in federal corruption prosecutions at the local and state level.
The 1970 RICO Act (Racketeer Influence and Corrupt Organizations Act) permits convictions on the basis of a "pattern" of activities comprising a criminal enterprise. Such a pattern of "racketeering" is very broadly interpreted to include a variety of offenses3/4as long as they are repeated several times. In a 1981 decision the Supreme Court held that prosecution need not be restricted to criminal organizations that infiltrate or take over legitimate business, but instead could be applied to any group which demonstrated a pattern of racketeering activity. This law and subsequent interpretations vastly increased white collar prosecutions of those not usually thought of as involved in organized crime. 3
New federal resources such as a public integrity unit in the Justice Department, the Federal Witness Relocation Program, the Federal Law Enforcement Training Center and the creation of offices of Inspectors General made internal investigations easier. In 1976 the Justice Department created a public integrity section within its criminal division. This now has more than 25 attorneys who specialize in the supervision and oversight of undercover operations for serious corruption cases. This unit offers training, seminars, lectures, and consultation to prosecutors and investigators for the prosecution of corruption cases.
This paper focuses on an area where the changes in covert means are particularly clear and dramatic3/4 the use of undercover means by government against itself. The vast expansion of drug enforcement has greatly increased corruption temptations. Among those arrested in recent police stings have been Drug Enforcement Agency and FBI agents, as well as many local police. Concern over drugs and violence has sent still other agents to prison3/4 although posing as prisoners3/4 in a trick used by Vidocq. (Stead 1953 and Gerson 1977) It is no longer uncommon to hear of police, legislators and even judges and prosecutors as the targets of undercover investigations.
Let us move from consideration of the broad expansion of undercover tactics in the last two decades (of which uses within government is one strand), to some of the difficulties involved in seeking to control those with the authority to control others.
The Problem of Guarding the Guards
If there are forces operating to expand the internal use of covert means there are also powerful forces opposing this. To the social analyst, as against the social reformer, what might seem remarkable is that there is as much internal social control among law enforcement agencies and government as there is, rather than how far from ideal the situation is. As with dancing bears, the point may be not that they dance badly, but that they dance at all.
Many factors work against the guards guarding themselves as aggressively as they guard others. The separation of powers doctrine may inhibit enforcement agencies from actively investigating judicial and legislative bodies. Judges control the issuance of warrants and may be hesitant to judge their peers. The rule making, budgetary, and approval power of the legislature over executive and administrative agencies may subtly (or not so subtly) inhibit the latter's enforcement actions. 4 Judges may owe their appointments to the very politicians they could be asked to judge.
Within the same enforcement organization simple self-interest and reciprocity work against aggressive action. Those within the same organization have a strong interest in getting along. Reaching organizational goals requires cooperation, and loyalty is valued. Boat rockers and whistle blowers are not usually rewarded. Violations may be tolerated as resources and rewards. There may even be a kind of implied blackmail in which those with the power to sanction rarely use it in order to keep the peace and assure the organization's functioning.
American police, lacking the lateral entry of European police, are thought to have a higher degree of inner solidarity and weakened supervision. Since leaders rise from the ranks, they may find it more difficult to act decisively. Also unlike the situation in Europe, being a prosecutor or a local judge is rarely a life-long career insulated from political pressures, or assessments of future career moves. Rather such positions are often stepping stones to other public offices or jobs in the private sector (e.g. as defense attorneys). This may mean lesser professionalism and greater receptivity to political pressures.
District attorneys for example are usually elected and very much a part of their communities. They are generally not inclined to make cases against the political establishment that nurtures them and is likely to hold the key to their futures. Federal or state agents are freer to do this; on the other hand they may not know the local scene as well, and they must often work together with local officials on other matters.
Local prosecutors who wish actively to enforce corruption laws need to obtain a critical mass of evidence, such that an investigation creates its own momentum and can proceed in spite of the political pressures that may be brought against it.
As a result of the above factors, the ecology of intimal enforcement generally flows downward from federal to state and local levels (and from state to local) rather than the reverse. As noted, for political reasons it is often easier for outsiders to act. The federal government of course also has greater resources, and broader laws and jurisdiction. 5
A related issue arises from the special skills of control agents. Even when the will is present, it is more difficult to catch those in criminal justice because of their knowledge of the system and contacts within it. They are likely to know how to protect themselves and to identify investigative efforts.
Given resource inequality within organizations, internal enforcement, when present, is more likely to be directed at those lower in the organizational hierarchy. Those higher up usually have more information and are in a better position to defuse an investigation, or to retaliate, not to mention their formal and informal control over those carrying out an investigation. They are likely to have legitimate discretion which permits starting or stopping an investigation, and this may mask coverups. The issue of when (in the words of one agent) "to pull out the plug" as against when "to run out the string" is rarely formally reviewed. The folklore of some police and radicals is in agreement that investigations are likely to be stopped before they get to the really big fish in government.
Maurice Nadjari, for example, was appointed Special Prosecutor with responsibility for investigating corruption throughout the criminal justice system by Governor Rockefeller in 1972 (Nadjari 1977). He successfully prosecuted police and minor public officials; however, his major cases involving high level politicians and the judiciary were dismissed (as was Nadjari).
Investigations may be subtly derailed in many ways and sometimes with competing moral justifications. The damage of letting an investigation continue once evidence against a corrupt official has been gathered may not be balanced by the lure of getting higher-ups. For example, in a controversial action at the end of his term, Mayor Ed Koch of New York refused to reappoint a corrupt city official as a way of continuing an investigation. Koch viewed the reappointment of a known corrupt official as very damaging to the workings of government. The moral ambiguity is clear. Should a corrupt official be allowed to continue to profit from his position and to do harm, in the hope of building the strongest possible case and widening the net of those charged?
But among other less noble factors that may lead to the premature closing of an investigation of elites are fear of reprisals, the richness of the reward or favor that may be forthcoming as a result of cessation or a subtle warning, and concern over damaging legitimacy. The complexity of many such investigations and the fact that they may be of lengthy duration also increases the chance of leaks or accidental discovery. Also because of the sensitive circumstances a stronger predicate may be required to begin an investigation than is the case for those not in government.
Aggressive actions are more likely to be taken by outsiders3/4 whether organizationally or socially. To be effective, internal authority must to some degree be insulated from the pressures that would corrupt it. In New York City, once an officer works in Internal Affairs he or she can rarely go elsewhere in the department. The building is isolated and so are its members (even to the point of having to be promoted in secret so other members of the department won't know their identity). The absence of camaraderie from, and rejection by one's colleagues and their view of you as a rat, may take an enormous stress toll on those assigned to such units. This is compounded by a sense that higher authorities, regardless of their public pronouncements, are ambivalent about your activities.
Cultural and psychological factors may work against the active pursuit of official rule breaking. As an embodiment of a society's values, leaders may be held in reverence and surrounded by an aura of the sacred (although this may be less true for the United States than for more traditional societies). There may be psychologically rooted inhibitions about challenging those in authority and suspecting ill of them; although that may be more true of Europe where there is a tradition of the strong state and greater fear of what would happen if it is weakened.
There is probably a cultural tilt toward wanting to believe that officials are good. If not 100% pure, they are seen to have a very hard job to do and to need all the support they can get. Everrett Hughes (1962) in an important article on "good people and dirty work" develops this argument. Some official violations are seen to be "necessary," or at least unavoidable in the pursuit of important social goals. The expression "it's a tough job, but somebody's got to do it" captures this. Moderate rule breaking and rule bending can also be seen as rewards or perks for those in high status positions.
Even when the above factors are absent, the collusive nature of many official violations operates against discovery and prosecution. For example with political corruption there is usually no complainant and the damage is diffused. Such cases tend to lack a "smoking gun."
With respect to bribes three important situations can be identified. The first and most common ("back-scratching") involves a willing, even joyful exchange among a bribe offerer and receiver. Both wear black hats (although given the official power of the person in government, a hint of extortion hangs over many such relationships).6 In return for compensation, the bribed person agrees to deliver a contract, provide inside information, withhold information, fix a case, introduce legislation, vote a particular way, or otherwise act to advance the payee's interests. While the public may be victimized, both parties get what they want and neither is likely to come forward to complain. This is the quintessential economic relationship, it just happens that the currency is corruption. This serves the interests of the involved parties, but has costs for the public at large.
The symmetry in the above contrasts with the asymmetry in situations where a bribe is requested or offered. In the latter ("citizens bearing gifts") bribes are offered to those with authority. They may accept for obvious reasons. Again the mutually enriched parties enter into a conspiracy of silence.
But even when the bribe is refused, the appropriate authorities are unlikely to be informed. The bribe refuser may conclude that since the offer was rejected, no real harm was done. Norms of reciprocity also work against reporting such crimes (i.e. turning in someone who offers you a gift and who defines it as a token of appreciation, "here's a little something for you, a show of good faith and support").
In the third form, "the coercive power of office," the source is a demand for payment from the office-holder, rather than a citizen-initiated offer. Yet this too, is usually unreported. The target of the briber or extortionist may be offended, but nonetheless go along because the latter's cooperation is needed, or out of intimidation. Even if the individual refuses to pay, the fear of retaliation may be great enough to prevent reporting. A further constraint on reporting is that many of those victimized by this type of corruption are themselves involved in illegal and/or morally discrediting activities. They do not want to call attention to themselves and, with their potentially impugnable reputations, are unlikely to be believed relative to the claims of a government official.
Finally, even rejected asymmetrical corrupt proposals may not be reported for some of the same reasons that other violations are under reported3/4 a belief that reporting will do no good, fear of retaliation, and a desire to avoid unwanted publicity and entanglements.
Yet as we noted, there are also factors encouraging efforts at internal control. Organizations differ in the amount and kind of resources they devote to internal control. However lacking government may be in some ideal sense, it appears to devote relatively greater resources to internal control when compared to many other institutions (e.g., universities). More abstractly we can hypothesize that the extent of resources devoted to inner control is dependent on factors such as:
Some Examples
The secrecy associated with undercover investigations means that they can ensnarl unlikely persons. Serendipity sometimes means that police (along with judges, legislators and college professors), unaware of who and what they are dealing with, are swept up in stings. Thus in New York a police officer was arrested in a fake insurance scheme when he paid to have his car stolen and an Atlantic City policeman was arrested when he sold his badge and motorcycle to a property sting run by the New Jersey State Police (Marx, 1988). But our concern here is with undercover means directed against those in criminal justice.
There is an important distinction between using covert means in a targeted fashion in response to intelligence (predicated use), which suggests that a crime is occurring, and routinely using them absent specific suspicions (open-ended use). Predicated uses are a traditional tactic, even if police are often reluctant to apply them internally. What is new is the willingness of some departments to now use undercover tactics as a routine part of the inspection process.
Targeted uses are common during the periodic reform periods that police departments experience. Thus O.W. Wilson in Chicago, in response to claims that police were stealing welfare checks and shaking down motorists, had internal affairs agents secretly watch suspects, and his agents posed as motorists to see if they would be shaken down. William Parker, the reform chief in Los Angeles, came to his position after serving as head of internal affairs. It was widely believed that he used his information from secret investigations as a way to have informal and formal leverage over the department. (Woods 1973)
The Knapp Commission and Patrick Murphy in New York City also made effective use of the tactic (The Knapp Commission 1972). The Knapp Commission was appointed in 1970 to investigate police corruption. Officers facing corruption charges agreed to work undercover against their former colleagues. Police corruption was found to be systematic and widespread. The Commission rejected the "bad apple" theory of corruption in which the problem is seen to be one of a few bad individuals who somehow managed to slip through, in favor of an approach which looked at police organization and culture as factors which supported corruption.
In response, under Police Commissioner Patrick Murphy, the department instituted a variety of reforms aimed at preventing as well as investigating corruption. The extraordinary enforcement challenge posed by police who are criminals was seen to require innovative approaches.
The department routinized complex sting operations. An undercover capability (previously available only to narcotics and organized crime units) was added to the Internal Affairs Division.
"Field internal affairs units" within borough headquarters subjecting officers to random integrity tests were created. A "field associates" program, designed to break the "code of silence" was also set up in which hundreds of officers assigned to regular duty secretly agree to report on corruption among their colleagues. The goal is prevention, as well as general intelligence to assess a problem.
Integrity tests are used absent specific suspicions. Police are warned they may be subjected to various tests at any time. The warning is intended to deter violations by creating fear that any corrupt offer might be other than what it appears to be. The tests carried out by members of internal affairs may take a number of forms3/4 an interracial couple asking a police officer for information, a person turning over cash they claim they found, or a confused drunk with a fat wallet.
The largest New York City corruption investigation since the Knapp Commission in the early 1970s (Commission 1972) was in 1986 in Brooklyn's 77th Precinct. Thirteen officers were suspended following an investigation. The officers are alleged to have taken cash and drugs from addicts and dealers. A drug dealer who complained was wired and he gathered evidence against two officers. In the "domino" process common to undercover investigations, under threat of prison the two officers were then wired and gathered evidence against their colleagues (McAlary 1988).
In Los Angeles a tip from an FBI informer passed on to the police department led to the setting of a trap that caught two members of a special burglary unit.7 After an initial investigation, a fake burglary situation was created and the suspects took the bait and were arrested. The arrested officers had an ideal situation for continually committing crime. They were part of a special burglar alarm response unit. After responding to the alarms, the officers would then pilfer the store themselves. They were believed to trip the alarms of stores specializing in expensive electronic equipment and then respond to the alarms. Investigators turned the tables and set off an alarm at one such store. They then watched as the two officers made several trips carrying out cash and expensive goods which had been treated to leave an indelible, invisible mark on anyone who touched them. In later searches of their homes and those of several other suspects, authorities seized almost a truckload worth of electronic equipment.
Some departments use stings as part of a procedural audit to be sure that rules are being followed. The idea is to create a secret test to see if policies are correctly carried out. Thus after civil rights groups complained that Long Beach, California police supervisors were ignoring complaints of police misconduct which were phoned in, agents secretly called in complaints, and monitored their treatment. The rationale is clearly expressed by police commander Billy Thomas, "it did get the attention of the personnel here, in that they never know who is on the other end of the phone." (Law Enforcement News June 15, 1990).
The potential for corruption is particularly rich in agencies charged with licensing, inspection and regulation. A significant amount of discretion, a heavy workload, lack of resources for full enforcement and lack of public visibility are conducive to influence purchasing and peddling and compromised enforcement. The value of discretion to the corrupt official is greatly enhanced when delays can cost vast sums, as with construction. Bribes may be used to obtain expedited treatment. They may also of course be used to more directly hurt the public.
New York City's Commission of Investigation has pioneered in using covert techniques in this area. In its "Operation Ampscam," for example, more than half of the 26 employees of the New York City Bureau of Electrical Control, the agency that inspects electrical installations, were arrested after a 14-month investigation. (New York Times, June 8, 1984) Two bogus electrical companies were set up and investigators pretended to have done work at buildings supposedly being rehabilitated, yet the buildings had dangling wires, water deposits, and lack of grounding. Payoffs were accepted in return for licenses. In another part of the operation, agents posed as inspectors and arrested contractors who paid bribes.
In "Operation Undertow" eight undercover investigators3/4 six pretending to be car owners who owed unpaid fines and two posing as employees3/4 gathered evidence that workers at a New York City car pound solicited and accepted cash from persons who wished to retrieve their vehicles without paying outstanding traffic tickets. (New York Times, Mar. 15, 1985)
In an audit example an investigator filed a fraudulent disability claim which demonstrated how easy it was to cheat the city's pension fund. He faked a back injury and used the X-rays of another person with an actual injury. He was then filmed lifting heavy boxes and playing paddleball. Doctors on the pension medical board were told about the films, but they nonetheless granted the disability claim. A report based on this case did not charge the doctors with wrongdoing and noted that they did not have time to adequately review the many cases they handled at their weekly meetings. The report recommended a number of policy changes. (Boston Globe, April 15, 1982)
A related topic is citizens' and private groups' use of covert means against police. Publicity around the tactic and the availability of powerful, easily hidden audio and video recording devices evens up the odds in a sense. They can offer evidence of official misconduct that might not be believed were it just the citizen's word against an official. In this sense there is a democratization of surveillance.
In a controversial Long Beach, California case a black police sergeant, Don Jackson, in conjunction with the Los Angeles Police Misconduct Lawyers Referral Service, ran a private sting which was videotaped and nationally televised. In the incident he and a colleague were stopped by two white officers, unaware of his identity. One of the officers used profanity when the sergeant at first refused an order to raise his hands above his head. After he finally did so, the officer rammed his head through a storefront window. In their police report the officers said that the sergeant cursed at them and made threatening gestures. After the videotape was shown, one of the officers acknowledged that the report contained inaccuracies. Charges were dismissed, to the dismay of the Long Beach Police Department who felt that they were set up. The arresting officers were themselves arrested. The sergeant hopes to "export [his] activities nationwide" and he reports he will consult "with various civil rights leaders as to which are the worst areas and I'm going to set these things up anywhere and everywhere I can." (Law Enforcement News, Feb. 14, 1989)
The Grand Jury system offers a powerful tool for conviction, although not always for the initial offence of interest. Thus Paul Rao, a Chief Judge of the Federal Customs Court in New York, was indicted for perjury in a simulated robbery case. An acquaintance, acting in an undercover capacity, asked him to help the son of a friend who was supposedly in trouble. The judge suggested that the agent see "a lawyer [who] knew the judge." He recommended his own son as the lawyer. Rao was called before a grand jury a year later and denied making that statement. A special grand jury indicted him for perjury. (Marx 1988 and Gershman 1981)
Operation Corkscrew, an investigation into alleged municipal judicial corruption in Cleveland, is a classic example of how not to carry out an investigation (Report of the Subcommittee 1984). The story is one of incompetence and exploitation by an unwitting and then a witting informer. Marvin Bray, a court bailiff, did not know that two men hanging around the court who expressed an interest in bribing judges to fix cases were really FBI agents. Bray bragged that he had two judges in his pocket and agreed to set up payoff meetings. Over an 8-month period he held a series of tape recorded meetings between the two "judges" and the agents. The FBI paid out $85,000. The "judges" did not know that the fixers were really FBI agents and the FBI agents did not know that the judges were really impostors. Bray had persuaded two friends to pose as judges. They were told that they were part of an undercover investigation to protect the judges and to combat corruption. One of the impostors, a man in his thirties, impersonated a judge who was 68.
Once Bray realized that they had been dealing with government agents he fled. The FBI located him and he convinced them that there really was corruption in the court and that he could help them gather evidence by directly approaching judges. He did not document any corruption, but the case demonstrates how a tape can be misused to make it appear that a target has committed a crime. With the hidden tape recorder on, Marvin Bray asked a judge to revoke an arrest order for a friend who had missed a scheduled court appearance. The judge agreed to this routine request. Bray then left the judge's quarters and later said into the tape: "That envelope on the table is for you, Judge." He then presented the tape as evidence that the judge had accepted a bribe in return for revoking the order. The investigation was closed. Bray was indicted but no judges were, although they were stigmatized by the publicity the case received.
Operation Greylord in Chicago, which targeted judges and lawyers in Cook County's judicial system, was a much more professional investigation (New York Times, Aug. 12, 1983 and Tuohy and Warden 1987). Greylord is a reference to the wigs used by British judges. FBI agents posed as arrested criminals and as lawyers, and a state judge cooperated by wearing a tape recorder hidden in his cowboy boot. The investigation focused on payoffs between lawyers, police officers and judges suspected of having fixed cases in the past.
Finally let us briefly consider two undercover corruption investigations outside the criminal justice system, which raise some common issues. We will compare the use of undercover tactics against elected officials in the Abscam (Abdullah Scam) and Corcom (Corrupt Commissioners) investigations. Abscam involved FBI agent Anthony Amoroso posing as a sheik with immigration problems who sought to purchase political influence (Select Committee 1983).
Abscam began on Long Island in 1978 and went on for two years. It began as an inquiry into stolen art and securities and ended as an investigation of political corruption. When a subject spoke of his ability to influence politicians, the focus of the investigation changed. As a Senate Committee of inquiry observed: "Abscam was virtually unlimited in geographic scope, persons to be investigated and criminal activity to be investigated . . . it was, in practical effect, a license for several agents to assume false identities, to create a false business front, and to see what criminal activities could be detected or developed throughout the country" (Select Committee 1983).
Abscam stands out because it was not in response to allegations about particular individuals, or in response to known offenses. It used Mel Weinberg, who had been involved in the use of stolen credit cards, income tax evasion and fraud, as the principle informant. It also made extensive use of unwitting informers who had a strong financial incentive to draw in subjects whom there was no prior reason to suspect were corrupt. This contrasts with prior corruption investigations that usually involved either a person from whom a bribe is demanded, playing along under police supervision, or a "tamed" suspect who agrees to cooperate. The subjects attended secretly videotaped meetings believing they were coming to discuss campaign contributions. A script was followed in which in return for help with his problems the sheik would make various "gifts."
There were a number of Abscam cases and these raised somewhat different issues. One involves how persistent agents should be after a subject initially refuses. In the case of Senator Harrison Williams, agents persisted until he finally accepted money, after twice rejecting their suggestions. He was led to believe that he would not have to take any illegal action. The main informant coached him in what to say, practically putting words in his mouth: "You gotta tell him how important you are, and you gotta tell him in no uncertain terms without me, there is no deal. I'm the man who's gonna open the doors. I'm the man who's gonna do this and use my influence, and I guarantee this." The senator was then assured that nothing wrong was happening: "It goes no further. It's all talk, all bullshit. It's a walk-through. You gotta just play and blow your horn."
In the case of two city councilmen in Philadelphia, George Schwartz and Harry Jannotti, the bribe was presented as necessary to a much broader plan to help rebuild their financially troubled city. They were told that in accordance with the "Arab mind" and "Arab way of doing business" that they had to convince the investors that they had friends in high places. In order to do this, money had to be accepted from the investors. The defendants were not asked to offer any commitments or to do anything improper, contingent on accepting the payment. The situation was structured so that acceptance of the money would be seen as payment for consulting services. Neither of the defendants asked for money, and both indicated that no payment was necessary. They were simply told that the project would not come to the city if they did not accept the sheik's "gift." While in Abscam all those arrested were convinced other standards must be considered beyond strict legality.
In contrast, Corcom, which resulted in guilty findings against more than 200 county commissioners in Oklahoma in 1981 for taking kickbacks, was more focused. A lumber-mill owner agreed to cooperate and secretly recorded 110 taped conversations with vendor colleagues, many of who admitted their complicity. A building materials salesman who testified that he had made 8,400 payoffs worth over $1 million to county officials secretly videotaped his dealings with commissioners in an Oklahoma City hotel room. In contrast to Abscam, a U.S. attorney observes "we simply had Moore do business like he had for 28 years." (Newsweek, Sept. 21, 1981) There was a clear predicate for the corrupt temptations presented to targets3/4 they were known to have previously had corrupt dealings. It would be difficult to claim that the crime was an artifact of the investigation or that the corrupt nature was not clear. The investigation was carried out in a "natural" environment rather than an artificially created one.
Some Consequences, Costs and Choices
In this section we consider the difficulty of evaluating the use of covert means in corruption cases, some preventive measures that would lessen the need to rely on them, and some broad policy issues faced by a democratic society in its efforts to guard the guards.
There have been no efforts to systematically evaluate the government's use of undercover tactics against itself. 8 Unlike a fencing sting which involves many roughly similar cases over a period of time and for which before, during and after measures of reported crime are available, the corruption cases vary greatly among themselves. Since corruption is rarely reported, there are no easy measures of deterrence or prevention.
Evaluation measures for corruption cases have a type of face-validity. If clear evidence of serious wrongdoing is found and guilty verdicts are returned, then they are presumed to have worked (assuming the violations are not simply an artifact of the investigation). This of course does not tell us whether they are more effective than some other measures, or have a deterrent impact. The impact may be significant at first and later diminish. The "wise" may learn to negate the controls3/4 through special tests and language, indirect payments, payments abroad, or when an official retires etc. Knowledge that undercover tactics are in use may keep some from breaking the law, but it may simply make others more clever and careful. There is likely significant variation in outcomes. For example most observers agree that following the reforms and publicity of the Knapp Commission systematic widespread corruption in New York City stopped, even though pockets resurfaced. In contrast in Philadelphia reforms seem to have had less impact. There is a clear need for research here.
Even if the tactic "works" in a particular case in the sense that offenders are identified and prosecuted, such control can be seen as merely a band-aid or tourniquet, stopping the bleeding by external pressure, but having no impact on the source of the problem. Apprehension of an offender whether through undercover or other means suggests a failure of social control; the damage has likely already been done. In most of the cases considered here government is simply picking up the pieces after the fact.
The U.S. attorney in the Corcom cases observes, "we can win all these cases, but if the system isn't changed, we've lost the war. It would be business as usual unless the legislature adopted new laws." (New York Times, Oct. 12, 1981) Actions taken to lessen the likelihood of corruption include: limits on campaign contributions and spending; public financing of election campaigns; disclosure laws; restrictions on political party leaders, legislators, and former officials going into a related private business immediately upon leaving government; higher salaries; stricter rules for competitive bidding; centralized purchasing; better accounting and audit procedures; a requirement that bribe offers be reported; and independent ethics committees with enforcement powers.
Disclosure rules are important because they may deter, or if not followed, offer a means for pursuing an investigation. In cases where prosecutors have other grounds for suspicion, but are unable to prove a bribe, they may still pursue a suspect for not disclosing questionable contributions or sources of income. One way to overcome the difficulty in discovering violations is to have laws or internal policies requiring that bribe offers be reported.
On the other hand such rules can create a new resource to threaten people with deeming a bribe offer was made when it wasn't. Such a requirement might create perjury on the part of the agent who ignores a bribe offer and later, if challenged, defends himself by denying the offer was ever made. Such requirements can also result in integrity tests being taken to a new extreme: targets may face double testing3/4 initially to see if they will accept a corrupt offer and, then to see if they will report the offer. Individuals may become the targets of an undercover trap not because they are suspected of wrongdoing, but to see if bribes are reported and other procedural rules are followed. This may offer a means to get rid of an employee whose performance is satisfactory, but who is disliked by a supervisor.
With respect to police among anti-corruption measures are: careful selection, adequate pay, anti-corruption training, more intensive field supervision, having sergeants present when arrests are made, and a de facto policy of non-enforcement for minor offenses likely to give rise to problems; and a policy of requiring two people to be present during situations that are most likely to give rise to allegations of corruption (meetings with an informant, counting money, male-female encounters). Paper audit trails, audio and video recording, polygraphs and drug-tests are also used. Some departments have a rule which requires employees to immediately report any misconduct they are personally aware of, or any allegations of misconduct that they hear of. Failure to make such notification constitutes misconduct.
More effective prosecution (and less need for it) might follow from local equivalents of the federal Special Prosecutor, appointed by legislatures or attorneys general and from the establishment of inspectors general offices at the municipal and state levels. Tougher criminal and civil penalties, increased provision, protection and rewards for whistle-blowers and informers might have some preventive effect. The law might be changed to make it easier to offer proof of corruption. If public officials were prohibited from taking anything of value from those they have regulatory jurisdiction over, it would be unnecessary to prove the often-elusive concept of "corrupt motive" for purposes of prosecution. Specific legal presumptions could be written into the criminal law to indicate prima facie evidence of corrupt intent, e.g., any transaction of public business in a covert fashion, as with Abscam. A well-publicized policy of prosecuting citizens who pay bribes, or fail to report such requests, rather than only officials who demand them, might have preventive impact. Laws that made it easy for citizens to recover damages from officials whose false reports or perjured testimony contributes to detention, imprisonment, or prosecution could be adopted.
Given the special issues that are present, should investigations of official rule breaking, whether in the criminal justice system or among elected officials, involve a different standard than for investigations of citizens? If so, should the standard be more or less restrictive than is the case for general investigations?
Should the special advantages, powers and temptations that come with official positions subject their occupants to a voluntary waiving of privacy expectations? As a condition of office and a form of noblesse oblige, should they agree to things such as periodic random integrity tests and public filing of income tax statements?9 Boxers' fists are considered to be lethal weapons and lobbyists must register and report certain actions. Should there also be restrictions and special conditions on those in government such as elected officials and judges?
On the other hand, one might argue that because the risks of misuse are greater, undercover policy should go in the other direction when it is used in government (or against certain persons such as judges or elected officials). More stringent standards involving special internal review and a warrant could be required before undercover means are used against those in government.10
Some additional consequences
Apart from direct impact, using covert tactics internally may have other mixed and paradoxical consequences. Just because a policy may work and is legal, it does not follow that it is a wise policy. Covert anticipatory means have a price tag not found with conventional overt tactics, such as interviews and forensic analysis carried out after a violation has occurred.
Undercover tactics, regardless of the context in which they are used, raise troubling issues such as the possible creation of crimes that are an artifact of the investigation, the direction of resources from known to possible offenses, police becoming criminals, the tangled web of interaction that can follow deception, the setting of bad examples by the state, the invasion of privacy and the creation of climates of suspicion and fear. When the state uses the tactic against itself the danger of political targeting is clear and there may be unintended threats to legitimacy.
The undercover tactic offers a resource which the unscrupulous can use against their rivals and, taken to an extreme, can involve a kind of civil war between the branches of government.11 Secrecy and the ability to tempt and manipulate may make it possible to present evidence of seeming violation. Even when there are fair grounds for an investigation, political issues may arise with respect to the timing of the inquiry and arrests. If done too close to an election, charges of partisanship may arise.12
Relative to offenses such as theft and homicide, corruption is not only harder to discover, it is also generally harder to define, and easier to justify. The norms of a free enterprise, democratic society encourage wheeling and dealing and give and take. They support negotiation and persuasion. This can mean some persons back into committing technical violations without the intent to commit a crime. It can also mean greater ease in manipulating an individual into committing an offence than is the case for most other violations. For elected officials, the line between political contributions and buying favors and extortion can be thin. It is often not clear just what money buys3/4access or influence. This of course also offers protection for those wishing to commit crimes under color of serving constituents and responsive leadership. The language used may mask the essence of the transaction. It also makes it easier to justify. The accused often testify that they gave money as a gift, or a political contribution, not as a bribe and sometimes they are telling the truth. Yet those in office must be sensitive to the appearance of misconduct, as well as the reality.
The routine discretion in the enforcement role, the breadth of criminal laws such as conspiracy and the legitimate imperative to follow up on suggestions of illegality (which can be secretly contrived by agents wishing to carry out an injury) can mask the political motivation that may lie behind an investigation.
The case of Washington D.C. Mayor Marion Barry nicely illustrates some of the above issues. (New York Times, June 27, 1990 and Marx, 1991) Barry was lured to a police-arranged meeting with a former girl friend. After he purchased and used drugs she provided, he was arrested on a misdemeanor possession charge.
Barry was widely believed to be a user of illegal drugs, and many of those close to him had been indicted on corruption charges. Yet some observers saw this as an example of a discriminatory pattern in which scarce federal resources have been disproportionately focused on minority government officials. The Barry case appeared to some observers to be a witch-hunt in which the government went to great lengths to find evidence against Barry. It was unable to find sufficient evidence to obtain a warrant or to indict. It then turned to the undercover tactic, for which there is no legal requirement, and it further traded in what is to some observers the cheap currency of intimate relations.
The prosecutor who directed the case announced the highly publicized arrest three days before he himself announced that he was running for office. It also appears that the criminal law was being used not for prosecution, but as a resource to negotiate a political end. The prosecutor hinted he would exchange leniency in return for the Mayor's resignation.
Some questions apply regardless of whether or not the target is in government: is it wise to focus scarce resources on occasional users rather than dealers? Shouldn't authorities try to prevent crime rather than to facilitate it? Or if the latter, shouldn't they seek to minimize it (in this case intervening after cocaine was purchased, but before it was used)? If a case for indictment cannot be made before a grand jury, or before a judge for permission to search, wiretap or bug, is it appropriate to move to an undercover temptation for which there is no legal minimum threshold, particularly when a political figure from a minority group is involved?
Of course an official who is thought to flagrantly violate the standards he is charged with enforcing communicates cynicism and hypocrisy. The behavior of leaders is not only instrumental, it is also educational and symbolic. Were law enforcement authorities to apply a more restrictive standard before a political figure became the target of an undercover investigation, they might be accused of favoritism and corruption themselves. It would be wrong for authorities not to pursue allegations of wrongdoing, regardless of whom they implicate. The issue is in how those are pursued.
Some of the dangers of undercover means can be minimized by appropriate policies for targeting and carrying out an investigation. The FBI, for example, requires a special high level review of all "sensitive" cases, a category which includes any investigation of an important political figure. There are restrictions on how tempting an offer can be (it shouldn't exceed what would be found in the real world) and on how many times a target can be approached. Some investigations can be structured so that those drawn in self select, rather than their being directly targeted.
Even absent political targeting, the expanded use of the tactic to deal with corruption has led to unintended consequences and conflict among agencies with similar goals. The tables may get turned and the original police targets seek to arrest those trying to arrest them. For example in a case in Bridgeport, Connecticut, as part of an FBI corruption investigation, an informer offered a $5,000 bribe to the Superintendent of Police, who at first pretended to be interested. However as the bribe was to be passed, the superintendent rejected it and arrested the informer. He later sought to have the FBI agents involved arrested for bribery. The FBI in turn threatened to have him arrested on obstruction-of-justice charges. The FBI demanded its money and bugging equipment back, while Bridgeport officials wanted to give the $5,000 to charity. (New York Times, Aug. 21, 1981)
In what the sheriff of Galveston County, Texas, called "the sting that got stung," a man approached sheriff's deputies with an offer to "buy protection" for a cocaine smuggling operation. He offered to pay $75,000 in bribes to three county officials. The sheriff's department in response set up its own undercover operation for what it thought was a major drug-smuggling operation. After several meetings, the bearer of the bribe was arrested and spent the night in jail. The sheriff's department sought to prosecute the agent, but the district attorney was unwilling. County officials gave the FBI a $7,000 bill for expenses incurred in their part of the investigation (Marx 1988). Such keystone cop fiascoes generate bad publicity and may harm cooperation between agencies. There is also the risk that competing agencies will make illegitimate use of covert means as part of interagency struggles. Even if it doesn't come to that, inter-organizational strains may be created and cooperation among agencies that need each other may be reduced.
Do such investigations help or hurt legitimacy? Law enforcement leaders publicly proclaim that internal investigations show that the agency is vigilant and can control itself. Aggressive internal uses can send a message to the public that the agency is honest and will not tolerate abuses. As such they may increase confidence in government and law-abiding behavior.
Public images of the honesty of social control agents is likely to affect the public's behavior. Internal enforcement has symbolic communications consequences. It may increase public confidence in government. Elected officials, judges and police are role models and parental figures. When they are viewed as moral exemplars and beyond reproach, there is probably less violation of the rules they are charged with enforcing and public cooperation is greater. There are both moral and practical reasons for this.
Practically, citizens may not report violations if police are seen as corrupt. They may believe that to do so would do no good, or that they would be subject to retaliation. That belief may encourage law breaking. Morally, the belief that authority is corrupt can be a powerful "neutralization technique." Sykes and Matza (1957) note that cultural restraints against violations are weakened by beliefs such as "everyone is doing it"3/4 when that belief extends to authorities, it becomes even easier to justify rule breaking. How serious could the rule be, if even those charged with enforcing it don't honor it? While dynamic and democratic societies need a degree of skepticism and cynicism, they don't need that kind.
Yet corruption patterns are complex. They reflect citizen attitudes and expectations, as well as those of police. There are likely limits on what administrative reforms can accomplish in the short run, when public attitudes are indifferent to or supportive of traditional corruption. Without an aroused citizenry exerting pressure on political leaders and unwilling to tolerate corruption, change will be modest.
Ironically corruption investigations may serve to decrease legitimacy as well. This involves the mythology around the sacred. Some citizens may conclude that if a few in government are revealed as corrupt, that many more are as well. They may see an investigation as only the visible part of the iceberg and see the revealed evidence as a sign of how bad things really are. Those arrested may be viewed as scapegoats and the investigation a kind of periodic window dressing. Anything that creates negative publicity for the regime may be seen to harm the public. The example of the government using devious means can also serve to legitimate lying among the public.
With respect to internal morale, the tactic is again likely to have contradictory consequences. For the honest it may be welcomed as way to clean up a problem and to improve the image of the department or institution. Knowledge that undercover investigations are common could help keep people honest and can help them resist peer pressure to participate.
On the other hand it can also lower internal morale, if targeting is done on a basis perceived to be unfair (e.g., directed against political opponents or those a supervisor doesn't like, rather than the worst offenders). It can further the gap between employees and management. The view that "they are out to get us and they don't trust, appreciate or understand us" is not conducive to the best performance. Aggressive efforts at internal control may even create challenges in which employees in effect say "if by your actions you imply that you don't trust me and treat me like a potential criminal when I work hard and risk my life, then I'll show you." An expression found in some police departments is "you got the name, play the game." Given the complexity of the law enforcement situation and pressures on police to produce some internal enforcement efforts may seem from the police perspective (as put by a Los Angeles sheriff s deputy) to be "like hiring a guy to be a mechanic, and then they don't want you to be greasy." Police unions have attacked field associate programs as being "un-American."
Even police leaders of unimpeachable personal integrity tend to prefer to approach such problems piecemeal and to see corrupt officers simply dismissed, rather than to have extensive investigations and drawn-out trials. The desire to avoid bad publicity is one factor and the protection of higher level colleagues is another. An experienced undercover officer in New York who spent his career investigating his colleagues eventually concludes "I wasn't a cop hunter; I was a public relations man." He states "we would never come close to eliminating police corruption unless we busted through two walls. The Blue Wall that surrounded the entire department was formidable enough, but there was a much stronger Brass Wall protecting the inner enclave, guarding the reputations and careers and pensions of the members of a very exclusive club." (Murano 1990, p. 239)
It is an American truism that effective government requires free and open exchange. Yet diplomacy and secrecy have a place as well, particularly in the early stages of policy. These would be damaged if undercover tactics were used on a much wider and more indiscriminate scale. When individuals believe that they are constantly being watched and may be tested at any point, conformity may increase as candor, spontaneity, innovation, and risk-taking decline. Organizations need to encourage flexibility and a confident encountering of their environment. But the fear that any colleague might be an informer, that any conversation recorded, or that secret integrity tests are rampant may encourage a pulling inward and passivity. While it is understandable, the sentiment expressed by former Special Prosecutor Maurice Nadjari "if we cannot have absolutely honest public officials, then let's have frightened public officials" must give one pause.
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Notes
Cummings, H. and McFarland, C 1937. Federal Justice. New York: Macmillan.
Gerson, N. 1977. The Vidocq Dossier. Boston: Houghton Mifflin.
Gershman, B. "The Perjury Trap" Un'v. of Pa. Law Review Vol. 129: 624-700.
Hughes, E. 1962. "Good People and Dirty Work" Social Problems 10:3-10.
Commission to Investigate Allegations of Police Corruption and the City's Anti-Corruption Procedures, 1972. The Knapp Commission Report on Police Corruption. New York: G. Braziller.
Lardner, J. "How Prosecutors Are Nabbed". New Republic, Jan. 29, 1977. pp. 22-25.
Law Enforcement News, June 15, 1990
Marx, G. 1988. Undercover Police Surveillance in America. Berkeley, California: Univ. of California Press.
McAlary, M. 1988. Buddy Boys New York Charter Books.
Murano, V. 1990 Cop Hunter (New York: Pocket Books).
Nadjari, M. "I have No Regrets" New York Times Magazine. Mar. 27, 1977.
President's Commission on Law Enforcement and Administration of Justice 1967. The Challenge of Crime in a Free Society. Washington D.C.: GPO.
President's National Advisory Commission on Civil Disorders. 1968. Report of the National Advisory Commission on Civil Disorders. Washington D.C.: GPO.
Purvis, M. 1936. American Agent. New York: Garden City Publishing Report of the Subcommittee on Civil and Constitutional Rights 1984.
FBI Undercover Operations. Washington: U.S. Gov. Printing Office.
Riley, W. 1982 "Confessions of a Harvard Trained G-Man," Harvard Business School Bulletin (Oct.).
Select Committee to Study Law Enforcement Undercover Activities of Components of the Department of Justice 1983. Hearings, Law Enforcement Undercover Activities. Washington D.C.: GPO.
Sherrnan, L. 1980. "From Whodunit to Who Does It: Fairness and Target Selection in Deceptive Investigations." in Abscam Ethics, edited by G. Caplan, Cambridge, Ma.: Ballinger.
Stead, P. 1953. Vidocq: Picaron of Crime. London: Staples.
Sykes, G. and D. Matza. 1957. "Techniques of Neutralization: A Theory of Delinquency." American Sociological Review 22: 664-670.
Ungar, S. 1975. The FBI. Boston: Little, Brown.
Welch, N. and Marston, D.W. 1984. Inside Hoover's FBl. Garden City, N.Y.: Doubleday.
Whitehead, D. 1956. The FBl Story. New York: Random House.
Wilson, J. 1980. "The Changing FBI3/4 The Road to Abscam, The Public Interest. (Spring) pp. 3-14.
J. Woods. 1973. The Progressives and the Police: Urban Reform and the Professionalization of the Los Angeles Police (Ph.D. dissertation, University of California at Los Angeles).
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