The Interweaving Of Public And Private Police Undercover Work
In C. Shearing and P. Stenning, "Private Policing," Sage Publications 1987. I am grateful to Nancy Reichman for critical comments.

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Gary T. Marx

In documenting the important differences between private and public police Shearing and Stenning (1983) offer a needed corrective to traditional views of social control that ignored private police altogether, or simply saw them as adjuncts to public police. Yet our language and the social trends inspiring a topical issue such as this can result in the distinction between private and public police being drawn too cleanly. It is important to consider cornrnonalities and interdependencies, as well as differences.

Historically it was easier to talk of public as against private police. In popular conceptions there was little doubt about who the Pinkertons and the G-men were. Yet today in many cases such distinctions are more difficult to make. Attention must be given to a number of dimensions that interweave the basic public-private distinction (for example, sponsorship, function, interest served, organizational form, and location).

There are interstitial areas where public and private police are functionally or organizationally linked, or even merge. Even when this is not the case, there is some convergence in behavior as a result of the movement of public police to the private sector and the carrying out of equivalent tasks using similar means.

In this work I illustrate these points and consider some of their implications for social theory and public policy. The data presented have been gathered as part of a broader study of undercover police in the United States. 1 Five forms of interdependence between public and private police are considered:

  1. joint public/private investigations,
  2. public agents hiring or delegating authority to private police,
  3. private interests hiring public police,
  4. new organizational forms in which the distinction between public and private is blurred,
  5. the circulation of personnel between the public and private sector. Although these five forms are described using examples of undercover investigations, they represent more generic forms of interdependence.
Joint Public-Private Investigations

An example of a joint investigation can be seen in an FBI-IBM sting involving the sale of computer secrets in Silicon Valley. In perhaps the largest industrial espionage case ever in the United States, the two organizations participated in a fake consulting firm named "Glemnar Associates." An IBM security official posed as the firm's attorney. The firm offered to sell supposedly stolen IBM secrets to Hitachi and Mitsubishi. 2

The sting emerged when a former IBM employee notified IBM that he had been approached by Hitachi about obtaining documents. The next day he was visited by IBM security officers. He later introduced sting participants to Hitachi officials. As a result of the sting, criminal charges were filed against 21 persons. IBM also filed a suit against Hitachi and several affiliated companies asking for unspecified damages for the alleged theft of its trade secrets.

FBI director Webster commended IBM for "excellent assistance during this investigation" (The New York Times, June 23, 1982 . However, defense attorneys claimed that the sting was controlled by IBM and was undertaken as part of a struggle against international competition. The government refused to provide documents requested by the defense that would permit assessing this contention. This resulted in the dropping of charges against some defendants (San Jose Mercury News, September 29, 1982).

Another sting carried out by private detectives working for National Semiconductor and Signetics corporations in cooperation with police and federal agents, resulted in the arrest of two men for receiving supposedly stolen computer chips. Police were notified when several boxes of stolen chips were found in a Milpitas, California motel. These were traced to a suspect. Signetics and National Semiconductor then hired private investigators to pose as thieves. Over an eight-month period they approached the suspect and others and offered to sell stolen parts. Those arrested were thought to be key links in a network that used components made in Silicon Valley to manufacture counterfeit Apple computers in Asia (San Jose Mercury News, Oct. 2, 1982).

The National Automobile Theft Bureau (a private organization supported by the insurance industry) carried out an undercover operation with the Tennessee Department of Revenue and the Metro Nashville Police Department. Concerned over the fact that vehicle theft and fraud in East Tennessee was escalating, the three agencies provided personnel and funding for a sting. t was coordinated by an assistant district attorney.

The operation made buys of stolen cars and sought intelligence. Its agents infiltrated auto auctions, salvage yards, and junk yards in the hope of encountering professional thieves. This resulted in the recovery of 72 stolen vehicles with a retail value of $475,000. In a joint statement, agency heads said, "The success of this operation shows what can be accomplished when the public and private sectors join forces against crime" (International Association of Chiefs of Police Newsletter, August 1982).

In another joint effort the Insurance Crime Prevention Institute (ICPI an umbrella organization of 400 insurance companies) cooperated with the San Jose Police in a year-long property sting. The sting purchased nearly half a million dollars of property and 35 persons were arrested. While undercover public police ran the storefront purchasing stolen property, insurance investigators worked behind the scenes identifying the owners and insurers of stolen property and serving as liaison between insurance companies and the San Jose police (ICPI Reports, January 1981).

State Hiring Or Delegation Of Authority To Private Police

According to one estimate in 1984 approximately 36,000 of the nation's 1.1 million private security guards worked for government. The figures for federal, state, and local government were, respectively, 11,000, 9,000, and 16,000 (Cunningham and Taylor, 1984). For example, they serve as U.S. marshals in federal courthouses, and guard military bases, nuclear facilities, NASA, and various public buildings, including city halls and public housing projects. They also provide security at airports. But let us just consider some undercover examples.

A private detective agency called Multi-State Unit, Inc. specializes in providing contract undercover services. Among its clients are small towns and rural areas lacking skill in fields such as drug enforcement. It was founded by a former police chief and head of Ohio's bureau of criminal investigation. Its employees are all former police persons with narcotics experience. An incentive to solve cases (not available to public police doing equivalent work) is a share of the company's profits.

There are an unknown number of itinerant individual entrepreneurs who move from department to department selling their covert skills. For example, in a small Wisconsin county one such person was made a temporary deputy sheriff. He spent six months in an undercover capacity. When he surfaced, the prosecutor had 30 warrants. The agent testified. Highly recommended by his employer, he quickly located work through an informal law enforcement network and moved on to an equivalent job in another state.

Private individuals are often hired for vice work. As opposed to sworn agents they may pose as prostitutes or as their clients. It is much cheaper to hire a part-time employee for close to the minimum wage than a sworn agent. A strategic reason for using civilians, especially in smaller jurisdictions, is that regular officers are often well known, and hence can not do vice undercover work.

Informer Mel Weinberg and an ex-FBI agent he worked with on the Abscam case played a central role in what may be the first privately financed, court-sanctioned sting. Their private police organization approached businesses thought to be vulnerable to counterfeiting. Through use of the sting tactic they offered to gather evidence regarding trademark infringements. 3

In operation "Bagscam" they were hired by Louis Vuitton, a manufacturer of haute couture handbags. The operation was directed against businessmen who allegedly sold counterfeit Vuitton handbags. The operation was overseen by an attorney for Vuitton who was appointed a special federal prosecutor and authorized to gather evidence by a U.S. district judge. The judge's order also authorized videotaping of meetings between Weinberg and the targets of the sting.

As in Abscam, Weinberg promised financing for a questionable venture as a lure and used an unwitting middleman to reach a suspect. The suspect was previously convicted of criminal contempt for violating an injunction that barred him from selling counterfeit Vuitton handbags. Weinberg offered to help the defendant obtain financing to establish a factory in Haiti to manufacture Vuitton handbags.

In other cases Weinberg sought to purchase a small number of such bags (for example, 25 for $25 each) from what appear to be very small-time operators. According to a defense attorney Weinberg did and said things no government operative would have. In one such case he threatened to break the target's head open. In another he told the target that there was nothing wrong with such a sale and that it did not violate federal law. In a videotaped meeting he advised the target not to discuss the meeting with his lawyer (National Law Journal, May 21, 1984; 60 Minutes, October 21, 1984).

The attorney for Vuitton, Joseph Bainton, has played a pioneering role as a special prosecutor in the development of such sting operations. He has set traps in a number of cities for those trading in bogus luggage. In the mid-1980s he was involved in an annual average of 40-50 prosecutions of counterfeiters and copyright pirates (Thompson, 1986).

These cases stand out because they involve a judge appointing a private attorney for an undercover investigation on behalf of the private interest for whom the attorney is employed. When the individual appointed as a special prosecutor is paid by the direct beneficiary of the law enforcement activity there can be an obvious conflict of interest, or at least the appearance of one.

The justification for the above-described incident was that the U.S. attorney's staff was overworked and had higher priorities than the problem of counterfeit luggage. Other reasons for turning to private police are the belief by political authorities that public police lack skills and resources, are unreliable, incompetent, or even corrupt, or, contrarily, are too bound by the rules to take the actions deemed necessary. For example, in a controversial Florida effort, the governor "commissioned" private detectives from the Wackenhut Corporation to conduct investigations on behalf of his state. This was part of a war on crime program. The head of the program was the president of Wackenhut. Payment came from private donations. The investigators did not have the power of arrest, nor the privilege to carry arms. But law enforcement agencies were asked to cooperate with them and to surrender confidential police files. At the time Florida had no statewide law enforcement agency. Rather than trying to create one, and gain funding for it through an uncertain legislative process, the governor thought it more expeditious to simply hire Wackenhut and solicit donations from private citizens. 4

Another example is former President Nixon's use of "the plumbers" to ferret out information on leaks and political intelligence and to damage political opponents. Nixon and his aides were apparently dissatisfied with the level and type of effort put forth by the CIA and FBI. A National security justification was used to serve highly partisan interests through illegal means.

Private police may be used in situations where public police have the resources and skill to carry out a task, but lack the will. It may appear unseemly for state agents to carry out a given enforcement action even though they are technically able to do so. For example in New York, private detectives from the Always On Guard agency visited the Hidden Desire massage parlor and paid for services. They then filed affidavits detailing their activities. This was the basis for forcing the business to close. (The private detectives were not themselves prosecuted for their illegal sexual acts.)

In another example that would probably not have been undertaken by state police for reasons of propriety and public relations, an attractive female private investigator parlayed a specious romantic involvement into a confession of a double murder. The private detective was hired by the three daughters of the deceased. Police had suspected her target but had been unable to gather sufficient evidence to solve the crime over a three-year period (Boston Globe, February 27, 1985).

The investigator contrived a meeting with the suspect and then dated him for several months. The suspect proposed marriage|age, but the agent said she first wanted to know what it was that he seemed to be hiding. With Houston public police listening through a transmitter in her purse, he subsequently confessed to the murder of two people.

Private Sector Hiring Of Public Police

The private sector historically has made extensive use of undercover tactics. But, as with other forms of private policing, prosecution was usually not an important goal, relative to prevention, recovering property, denying a claim, gathering intelligence, or managing employees.5 For example, it is far easier to pay criminals and go-betweens for the recovery of stolen property than to engage in successful prosecution.

However, in recent years segments of private-sector police have become more prosecution-oriented. This has come with increased cooperation with public agents and the provision of resources for undercover operation. For example four insurance companies operating through the ICPI contributed $20,000 to Connecticut The companies write homeowner policies and had recently experienced a "major increase" in burglary claims. According to the attorney general one of the goals was "spending a minimum of tax dollars." The state did contribute $500 for the rent of a storefront, $500 for the purchase of narcotics, and two officers who posed as fences. An insurance company spokesman states, "We didn't do it with the thought in mind of cost-benefit for our own companies. None of the goods recovered have so far been determined to be insured [by us]. It's a message to the people who are plaguing neighborhoods with burglaries that something can be done about it, and will be done about it " (The New York Times, May.14, 1981).

Trade associations and chambers of commerce have also financed sting operations. Thus, in operation "mod-sound" the recording industry contributed $100,000 to an FBI investigation of pirated records and tapes. In an important Massachusetts arson case in which more than 30 individuals were indicted, private investigators played a major role. According to an assistant attorney general, the insurance industry gave the equivalent of a blank check to help finance it. Its money was used to provide protective custody for the government's chief witness, to pay overtime for state employees, and to supplement the attorney general's investigation through private efforts. Some private investigators worked directly as consultants to the state and were paid by it whereas others worked for insurance companies, but in conjunction with public authorities (Reichman, 1983: 359).

Among the institutional supports for the increased private-sector involvement in prosecution efforts are the ICPI founded in 1972, and the National Auto Theft Bureau, founded by insurance companies in 1912 as a voluntary organization to help recover and identify stolen vehicles and to prevent auto theft. However, in 1979 the latter organization underwent a series of changes supportive of prosecution. Its agents were authorized to sign criminal complaints. In 1979 its agents contributed to the prosecution of 949 persons on larceny, auto theft, and fraud charges; by 1981 this figure had increased to 1706. For the ICPI the number of arrests contributed to has increased steadily from an initial 221 in 1972 when it was founded, to 1229 in 1979-1980.

Of particular interest are the creation of state-run fraud bureaus to investigate and apprehend insurance fraud offenders. Five states now have these and others are considering them (Reichman, 1983) These are in large part financed by the insurance industry in the particular state. The National Association of Insurance Commissioners has drafted model legislation for creating fraud units with law enforcement powers in state departments of insurance. The legislation calls upon insurance companies to report suspected insurance fraud and grants them civil immunity for filing such reports.

New Quasi-Public Or Quasi-Private Organizations

The merging or blurring of the public/private distinction can also be seen in the appearance of new permanent organizational forms (rather than only in the temporary forms as with the joint FBI-IBM investigation). What can be called quasi-public or quasi-private permanent police organizations appear to have increased in prominence.

Consider for example the Law Enforcement Intelligence Unit (LE1U). This was founded as a private organization for local and state police to share intelligence files. Its membership is restricted to public police. The private nature of the organization apparently permits the exchange of information that would not otherwise be possible by agents acting strictly in a public capacity. Privacy and confidentiality protections regarding the collection and sharing of information are avoided. Because the files are held by a private organization they are exempt from the Freedom of Information Act and privacy laws that give people access to their own files. A former chairman of the organization told a senate subcommittee that the purpose of the LEIU is "the gathering, recording, investigating, and exchange of confidential information not available through regular police channels on individuals and organizations, involved, but not necessarily restricted to organized crime."6

The National Auto Theft Bureau, although a private non-profit organization, has public elements in its role as a clearinghouse for auto theft information. Its North American Auto Theft Information System is a unique data base that, beyond basic information such as when and where stolen and previous history, includes the hidden vehicle identification number. Law enforcement officers and insurance agents in many states are legislatively required to report auto theft information to it. In some states its agents are granted immunity from civil prosecution when information is exchanged in the course of an investigation. This significantly increased communication among private insurance investigators and between them and state agents.7

There are also anomalous forms such as Anderson Security Consultants, Inc. of Virginia. They did standard security work for private interests. They also did work for the federal government including watching CIA and Pentagon employees whose loyalty was suspect, recruiting federal undercover drug agents, and infiltrating the peace movement through Project MERRIMAC. The private security firm was in fact a CIA front-created and staffed by agency members (O'Toole, 1978: 223). The CIA is under severe restraints with respect to domestic operations. Such proprietaries offer ideal covers for intruding into legally and politically sensitive areas. 8

The Circulation Of Personnel

Another form of interdependence can be seen in the circulation of personnel between the public and private sectors. Public-private exchanges of personnel and technology have gone on for over a century. After the Civil War as federal policing began and local policing rapidly expanded, the shift was most often from the private to the public sector (and sometimes back, as politics dictated) . Private detectives such as Alan Pinkerton introduced covert tactics into the public sector, first as contract employees and later as direct agents.

But in recent years the flow has moved in the other direction.9 The significant expansion of undercover tactics in the last decade has created a pool of experienced and well-known public agents who have taken their skills to the private sector. For example, the police lieutenant who was central to Washington DC's large, widely publicized stings (PFP Inc., Police FBI Fencing Incognito, and G.Y.A., Got Ya Again) retired and opened his own investigative agency, Sting Security, Inc. Mel Weinberg started his own private investigative agency, Abscam Incorporated, after the investigation he played a central role in. Gordon Liddy of Watergate infamy started an agency called "Gemstone" named after an aborted Watergate scheme. The IBM security agent who worked on the sting in the Silicon Valley obviously felt at ease working with federal agents, as he had previously been an FBI agent and had also worked for the Department of the Treasury and the Bureau of Narcotics and Dangerous Drugs.

More generally, the vast private security industry continues to expand. This industry, particularly at the more professional and leadership levels, is composed of thousands of former military, national security, and domestic police agents for whom public service was a revolving door. Some federal agents leave when they face mandatory retirement at age 55. Many local police retire at a relatively young age after 20 years of service. However, limited mobility opportunities and more lucrative private-sector offers attract many others long before retirement.

These agents were schooled and experienced in the latest control techniques while working for government, but are now much less subject to its control. They may also maintain their informal ties to those still in public policing. An insurance company executive, in explaining the rationale behind hiring former police officers for investigative work, notes that if the latter cannot gain direct access to the needed information, "there are their friends." This "opens up the doors for us so we can work both sides of the street" (Ghezzi, 1983)

Former public police, particularly at the federal level, often belong to organizations such as the Association of Federal Investigators (with membership open as well to ex-federal and nonfederal investigators), the Society of Former Special Agents of the FBI, the Association of Retired Intelligence Officers, and the International Association of Chiefs of Police. These groups do not have explicit operational enforcement goals, but through their newsletters and conferences they create formal and informal networks that serve to integrate those in public and private enforcement. Through lobbying and other political activity they may condition the environment within which policing occurs. 10

Even in the absence of such networks, there is a transfer of technology and culture such that although they are organizationally distinct, the line between public and private police is increasingly blurred with respect to their attitudes, behavior, and style.

Some Implications

This chapter has used the case of undercover investigations to illustrate five ways in which public and private police can be interdependent. 11 I will consider some of the implications of this for public policy and social theory.

There is a need for increased public information about the extent to which state police agents are in effect hired to carry out investigations at the behest of private interests. There may also be a need for clear policy statements and new forms of accountability. Although private support and cooperation may be welcomed in financially restrictive times, other issues are present. What limits should be placed on the private sector's ability to hire public agencies? Equity questions are raised to the extent that well-placed high bidders may be able to garner a share of public law enforcement denied to those unable or unwilling to pay. Just what is being bought with the private sector's contribution? If the money comes with no strings attached and is for an investigation consistent with an agency's priorities and one that it would have been likely to carry out anyway, there can be little problem. However, to the extent that law enforcement priorities, discretion, tactics, confidential information, or prosecutorial actions are affected, then the tactic must be closely examined.

Important questions are also raised when the public sector commissions private agents to act on its behalf. How cozy should this relationship become? Although there are obvious advantages in cooperation, 12 from a standpoint of accountability and the protection of privacy there may be drawbacks. The ability of public police to regulate private police and to protect citizens from their abuses may be compromised. Goals may conflict, for example, the private sector's profit-making concerns and its lessened emphasis on use of the criminal sanction.

The circulation of personnel also raises policy questions. Are former government agents experienced in highly sensitive and intrusive operations able to neutralize or weaken investigations carried out by the public agency for which they formerly worked? Do they find it easy to cover illegal investigative activities because they know how public police who might discover violations operate? Should former government agents employed in an investigative capacity by the private sector face greater restrictions and a registration requirement?

In spite of historic American concerns over centralized government and the importance granted checks and balances, elements of a national police may be emerging in the United States. This is based not on a centralized structure, but on a common occupational culture, informal networks, similar tasks, and the exchange of personnel.

An important theoretical implication of this material is that public and private police may serve as functional alternatives for each other. Although sources of conflict and competition can be identified, 13 public and private police may also be drawn together to supplement their respective weaknesses.

The case of private police using public police is the more obvious. Thus, through hiring off-duty public police, entering into exchange relationships, or participating in cooperative investigations they may benefit from the power of state agents to arrest, search, interrogate, carry weapons and use force and electronic surveillance, and gain access to otherwise protected information. Their legal liability may also be reduced or eliminated. The training, experience, skill, and backup support that public police can offer are other factors. The threat of using arrests and civil suits can be an important negotiating resource for private police. There are obvious advantages where a private interest's concerns can be defined as in the public interest and the responsibility of public law enforcement.

Perhaps less clear is what private police might offer public police . An important factor is information. Sworn agents cannot be everywhere and they face restrictions on access to private places and on the collection of many kinds of information, absent a warrant. But private agents, operating on private property and in contexts where persons appear voluntarily, are granted wide authority to carry out searches, to keep people under surveillance, and to collect and distribute extensive personal information. Citizens agree to cooperate as a condition for entering or staying on the property, or obtaining some desired benefit. Private police may also offer specialized skills and sophisticated equipment that local police departments lack (such as the ability to investigate computer crime or industrial espionage and advanced surveillance devices).

Private police vastly extend surveillance and reduce demands on public police. In addition, as the empirical examples considered earlier suggest, they may offer public police a way to get things done that the former are prohibited from doing.

There are two versions of this "dirty work" argument. 14 The first assumes that the actions in question are illegal no matter who does them. But it is less risky to have them done by private police. If discovered, public agents can simply deny that they requested the behavior. The second version of the argument is that private police can legally do things that pubic police cannot. This is a result of the historic development of American liberties (such as the Fourth and Fifth Amendments) which, as far as criminal justice went, protected citizens from government but not from each other. Private police, if not deputized, are constitutionally treated as citizens.

For obvious reasons it is difficult to find evidence for the first version this perspective (private police are used by public police to take actions that are illegal no matter who does them). We are dealing after all with specialists in the covert arts. Such evidence must come from accidents (as with the Watergate plumbers), court testimony, or first-person accounts.

Although it is hard to know if my sample is representative, most of the nonpolitical cases I have encountered do not involve anything as sinister as what has been described. What seems to be most often at stake in the public use of private police is either propriety, some strategic (but legal) advantage, or the addition of specialized skills or extra resources.

Thus a police sergeant observes, "a private investigator is able to do things the police can't do legally." l5 An organization such as the LEIU also seems to fit here (although it is merely an adjunct and does not have direct operational responsibility). The Constitution does not offer protection against unreasonable search and seizures by private persons (although persons engaging in such behavior may face civil liability or criminal charges). A department store detective (although generally having no right to conduct a search) can ask shoplifting suspects to come into an office and answer questions without advising them that they have the right to an attorney, to remain silent, or that what they say may be used against them. 16 There is no constitutional protection against self incrimination in such cases. If a private person acting on his or her own suggests a crime to an otherwise non predisposed person and the crime is committed, there is no defense of entrapment. If this private person enters the house of an acquaintance and searches through drawers to find incriminating evidence, the exclusionary rule prohibiting it from being introduced as evidence in court does not apply. Unlike the case for public police, the results of an improper search by a private party are admissible. 17

Yet this must be qualified. If the person engages in such behavior at the behest of police, then the same standards that apply to police are relevant. The key factor is the relation of the two prior to the behavior in question. Those to whom police delegate tasks are viewed as their agents, and are subject to the same legal standards. 18 Just what constitutes "agency" is open to interpretation. The courts do not always find agency where one might think they should. There are no doubt sometimes understandings between public and private police such that what is intended is well understood by both parties without an explicit verbal delegation.

It is ironic that the Bill of Rights and related protections emphasize restricting the behavior of government agents rather than also those operating on behalf of private interests. At the time it was written the major threat to liberty was perceived to be the state. The development and mass marketing of surveillance techniques that can be used by individuals, and the rise of powerful private organizations such as national and multinational corporations was hardly envisioned. There is need to broaden constitutional protections to take account of these new facts. 19 It is poor policy to permit citizens and private organizations to harm each other in ways that government may not.

Other private components of the criminal justice system such as process servers and bail bondsmen on occasion also serve equivalent functions. Pike (1980) suggests that bail bondsmen become unofficial court officers controlling traffic in the courtroom, doing errands and favors and acting as agents of social control. The power of the bondsman to bring to court those who have left the state is a good example: The bondsmen is largely immune from judicial control; his power over an accused power of the state the bondsman may seize the accused in a foreign jurisdiction without the slightest compliance with extradition requirements in the foreign jurisdiction (Yale Law Review, July 1964)

Private police, like bail bondsmen, are removed from many of the ethical, organizational, and legal constraints that bind criminal justice system officials. Yet although they are outside of the system they are also a part of it. This marginal structural position, for better or worse, may help the system meet at least some of its goals and enhance its legitimacy.

To the extent that the functional alternative explanation helps explain the increased prominence of private policing and its connection to public police, we learn something about the complexities of reform. It is ironic that a factor in the recent growth of private policing may be efforts to limit the power of state police. The legal environment in which police work has changed in recent decades. Supreme Court interpretations, federal and state Legislation, and the internal policies of enforcement agencies have on balance restricted the conditions under which public police can gather and exchange information.

These changes may have come at a cost of increased reliance on private police. A hydraulic principle may be at work: Restrict the police's use of coercion and their use of deception increases via undercover investigations. Restrict police investigation after a crime occurs, and increased attention will be paid to anticipating crimes by the categorical collection of information. Restrict the conditions under which the police can carry out searches and seizures and undercover activities, coercive interrogation after arrest, or collect data on those who are not specific suspects, and police may make increased use of private detectives and informants who are less accountable and not as subject to such limitations. New privates public organizational forms will appear. This is certainly not an argument against reform. But it does suggest the need to be aware of displacement affects and to ask what the impact of a proposed change for public police will be on private police.20

There are also, of course, countering forces of a more intended variety, which operate to push enforcement from the private to the public sector. The history of policing can partly be read as the struggle over which private concerns will be made into public concerns. Some of the blurring and interdependence noted here is transitional and involves the process of redefining a private contract or wrong into a criminal matter within the province of public agents. In the case of insurance fraud, for example, what began as almost entirely a private or civil matter has now been criminalized. Through educational and lobbying efforts and financial contributions, the insurance industry is in the process of creating much stronger public enforcement support for what previously usually was tolerated as a cost of business or was handled privately. There are historical parallels in other areas to the insurance fraud units now being created in many states. 2l

Some of the activities of private police noted here are consistent with the basic ideas of the Anglo-American police system. This system values self-protection and citizen participation in law enforcement and police who are mobilized in response to complaints and evidence offered by citizens. But I think something more than this is involved.

There is need for new concepts to describe the cooperative investigations I have discussed and the hybrid organizational forms such as the Law Enforcement Intelligence Unit, the National Automobile Theft Bureau, and the Wackenhut organization's involvement in the War on Crime Program in Florida (where agents controlled by a private corporation and paid by private interests act on behalf of the state and carry out official functions).

In the past, in an organizationally simpler time, it was easier to talk of private as against public police. But today there seems to be an increasing number of cases where the distinction is difficult to draw, if seen in either/or terms. Rather than simply asking whether police are public or private, we might first ask a series of questions: (1) Where does the policing occur-in public, private, or mixed space? (2) Whose interest is served by the policing-the general public, a private interest, or both? (3) What is the function of the policing? (4) Who pays for, or sponsors, the policing-public or private interests, or both? (5) Who carries it out-regular sworn agents of the state with full police powers, special purpose deputies with more limited powers, or citizens with no official powers? (6) Who controls and directs the policing? (7) Where the policing involves data collection and investigation, who has access to the results?22 (8) What popular and self-definitions characterizes those doing the policing? (9) What organizational form does the policing take? (10) To what extent are social control agents linked together in informal networks that transcend their nominal definition as public or private?

Of course, empirically determining answers to these questions may be difficult and observers may well disagree (for example, when is the public as against a private interest served? )23 But using such distinctions in thinking about policing will take us farther than the simple public-private distinction of most popular and academic discourse. An elaborate multidimensional matrix could be constructed from answers to such questions. The number of empirical configurations probably almost matches the number of logical possibilities. The pattern today is certainly more varied than it was in 1860 or even 1960.

There is obviously no simple answer as to why this should be the case. As suggested previously some of it simply reflects Anglo-American law enforcement traditions. But in summary let us note that beyond this, it partly reflects

  1. the increased organizational complexity and interdependence found throughout contemporary society
  2. the crisis or over extension of the welfare state, which is leading to the privatization of a number of government functions,
  3. legislation facilitating and even mandating public-private cooperation. 24
  4. the appearance of new enforcement needs requiring joint or more cooperative ventures (such as highly specialized white collar crimes, greater emphasis given to the enforcement of laws regarding civil violations, and increased emphasis on the maintenance of order in quasi-public places such as shopping malls), 25
  5. a degree of convergence in functions (for example, private police are becoming more prosecution-oriented and public police are giving greater formal recognition to the use of discretion and to non-law enforcement activities),
  6. an unintended consequence of efforts to reform public police and hold them to higher standards of accountability and legality, and
  7. the emergence of a common police culture that transcends the public/private distinction.
As blurring and convergence continue, in the future it may be more difficult to speak of either the privatization of control, (Spitzer and Scull, 1977) or the expansion of the Leviathan state (Marx, 1986). What we are seeing is something in between. This may be but one aspect of a more general blurring of the line between the public and the private that can be seen in other areas such as space (as with shopping malls), property (records of credit card or telephone transactions held by third parties), corrections (state subsidized and state-regulated but profit-making half-way houses, diversion programs, and even prisons), courts (neighborhood justice and mediation centers), and economic enterprise (for instance, public corporations and joint public-private development efforts).

The growth of private policing and its increased interdependence with public police, along with the increased use of undercover tactics and ever more sophisticated and penetrating surveillance techniques, means increased intrusion into private places and relationships . This has implications for the line between the public and the private and for liberty. In a society concerned about the level of crime and disorder these changes may be welcomed. Yet they are not without costs and risks. They not only raise traditional concerns over encroachment upon liberty by the state and by the private sector (a more neglected topic), but the new issue of concern over joint assaults. There is a danger that instead of serving to check each other, public and private police may collude in ways that are detrimental to the public good. Or the private may become ever more powerful at the expense of the public.

Students of social control have generally ignored the role played by private police. Fortunately, as this volume indicates, this appears to be changing. Yet as this changes, it is important to look not only at the distinctive roles played by private and public police, but at the ways in which they may be intertwined.

The consequences of this blurring for law enforcement are mixed. In many societies an unclear line between the public and the private is associated with a weak and/or corrupt state. This is not the case in the contemporary United States. There are some obvious advantages of public-private cooperation. As Tom Sawyer knew, that the fence gets painted can be more important than who actually paints it. Such cooperation need not mean a new age of robber barons who run the state as a private preserve, nor need it mean a totalitarian society where the private sector is dominated by the state. Yet the need for research on these developments and for vigilance is clear.

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  1. See G. T. Marx (forthcoming). This study focused on public police. But in the course of interviews and the analysis of documents, some information on private police was also gathered.
  2. The secrets were not, of course, stolen, but were willingly supplied by IBM. This shows some parallel to selling sugar as heroin and to the "bait-sale" where supposedly "stolen" goods are offered for sale. Indicative of the complexity of social control is that as one branch of the Justice Department was actively cooperating with IBM in action to protect its business interests, another was seeking to prosecute it for antitrust violations.
  3. Such "enforcement entrepreneurs" who induce or facilitate others to break rules can be contrasted with "moral entrepreneurs" (Becker, 1963) who play a role in having certain behavior initially defined as illegal. A private role here is, of course not without risks. U.S. Attorney Rudolph Guiliani in Manhattan turned down the chance to get involved in this case and questions such operations: "how far do we want to go in using people to fool other people into committing crimes? You shouldn't use Mel Weinberg to try to catch someone who's engaged in minor or marginal criminality" (60 Minutes, Oct. 21, 1984).
  4. T. Frankel (1969) describes this. Whatever its apparently modest impact on crime in Florida, the program appears to have oven good for Wackenhut. The company president reported to shareholders in 1967 that the Governor's War On Crime "has drawn both national and international attention to the Wackenhut Corporation . . . [T]he Wackenhut name is now known from coast to coast." He goes on to report that dollar volume of private investigative work increased 63 % during the first quarter, and when the War on Crime investigations are included the increase goes to 208%. The quote is from an address by George Wackenhut, as cited in Frankel (1969- 655). At the local level, Wackenhut has provided full public safety services to several Florida communities.
  5. This last is the most commonly used form of private sector undercover means. A frequent usage is to warn employees that they may be tested and subjected to covert quality control inspections. Thus, employees of firms serviced by one of the largest national agencies are given a form entitled "Responsibilities of Sales Personnel," which states: "SYSTEMATIC CHECKINGS are made of every employee; you never know what day or hour you are being checked." The goal of such actions is prevention and intelligence-rarely arrest. A specialist in retail security reports that the use of undercover means is "not just for trouble Undercover employees point out the good people, too." A presumed example of a bad person" can be seen in the following:



    On Sept. 25, I was fired from my job as a cashier.... the management takes it upon itself to test its employees for their "honesty".... I was at my register when a man rushed up with a package of underwear costing $4.19. I was wasting on another customer when he handed me the price tag and a $5 bill. He said, "Keep the change" and then rushed for the exit. I tried to stop him and give him his change and receipt, but he paid no attention. Once back at my register, I rang up the sale, but kept the change. I was then told to go on a break. Upon returning, I discovered that my register was closed and a security guard was waiting for me. I was summoned before the head security agent and the store manager, who demanded the return of the 81 cents. The store manager told me I no longer had a job (Letter to the editor, Providence Journal, January 2, 1981).

    Signs prominently displayed in FTD flower shops, meant to reassure customers and motivate shop keepers, proudly announce that quality and fair pricing are maintained by the use of secret shoppers. "Spy riders" who take flights to grade airline employees are another example.

  7. As cited in O'Toole (1978: 133) The activities of Jay Paul, a detective assigned to the Los Angeles Police Department's Public Disorders Intelligence Division has some similar elements. Stymied by a tight budget, PDID officials turned to Paul for help in obtaining funding for a computer. He went to Larry McDonald, a former chairman of the John Birch Society. The latter, in founding the Western Goals Foundation in 1979 wanted to computerize data on leftists. In exchange for a $100,000 computer installed in his wife's law office, Paul would develop an intelligence data base for both the private foundation and the police department. Later when senior police department officials requested that certain intelligence materials be destroyed, rather than complying Paul kept them in his garage and apparently passed them to private sources. Partly as a result of Paul's discrediting activities the intelligence unit has been restructured and renamed [Los Angeles Times, April 30, 1984.
  8. See Reichman's article in this issue and Ghezzi (1983).
  9. There are laws against the reverse-private persons and organizations formally posing as public police. However, private police often attempt to create the Impression that they are public agents through their vehicles, uniforms, badges and ambiguous business names such as "Community Protection Service Bureau," "Statewide Security," and "North Shore Protective Patrol Detectives:' and through using titles such as "special investigator" and "special agent." Some states prohibit them from carrying badges or calling themselves detectives.
  10. As the phenomena of moonlighting suggests, this circulation may also be temporal. During off-duty hours public police may serve as private police (in 1984 an estimated 150,000 were doing so). In many big city departments such employment is a jealously protected perquisite. Some departments in effect run private businesses out of headquarters. While operating on behalf of private interests they have all the powers of sworn agents and may even drive official patrol cars. It would be useful to examine trend data to see if this has increased in recent decades. I would hypothesize that it has and also that the deputization, or otherwise formal granting of powers to private police, has also increased.
  11. See, for example, Hougan (1978), O'Toole (1978), and Shearing and Stenning (1983)
  12. This hardly exhausts the possibilities, particularly those of a sub rosa nature.
  13. Realization of this has led to calls for the closer integration of the types of control. See, for example, Cunningham and Taylor (1984).
  14. For example, from the perspective of public police this may involve their greater focus on arrest and prosecution, authority conflicts, competition over off duty jobs, the belief that private police are more concerned with serving their clients than with seeing justice done, and concern that the image of public police is damaged when less well-trained, chosen, and supervised private police act in a heavy-handed manner.
  15. See Hughes(1962).
  16. Similar exchanges go on between public police agencies having jurisdiction over different matters and with different powers. For example, local police may draw upon the power of alcohol beverage control officers to search places where liquor is sold without a warrant and agents often have an interest in learning what is on income tax files they have no legal right to see.
  17. For example, a Supreme Court ruling in 1984 (United States v. Jacobsen) saw nothing unconstitutional in Federal Express employees opening a package they were to deliver. The Court held that once the package was opened and cocaine was in "plain view," police could seize it without a search warrant.
  18. A more extreme example involving the admissibility of a forced confession can be seen in a Boston case. Damaging statements made by a murder suspect to vigilantes who kidnapped him were allowed into evidence at the trial, where he was found guilty of murder. The suspect had previously been questioned by police, but released for lack of evidence. No body had been found. A year after the murder he was abducted. Through their own means his abductor's elicited a confession and the suspect led them to the body (Boston Globe, December 16, 1975).
  19. See U.S. v. Henry (1980).
  20. An example of this broadening is of the 1968 Omnibus Crime Bill, which bans the use of electronic surveillance by private parties.
  21. For example, the recent Supreme Court decision restricting certain police searches in schools is likely to mean that teachers will do some of the things police did before.
  22. Thus, at first railroads and other forms of transportation were privately policed. But laws were eventually passed creating special public transit authorities. In the 1920s the enforcement of laws regulating dogs was often legislatively delegated to societies for the prevention of cruelty to animals. This was gradually taken over by public police. Whether something is seen as a public or private responsibility (or neither) can be dynamic. Responsibilities can also be taken away without concomitant delegation to some other policing unit. Thus, the National Labor Relations Act of 1935 severely curtailed the activities of both private and public police in labor disputes. The Supreme Court's decision on abortions and the repeal of Prohibition also eliminated police responsibilities.
  23. Brodeur (1983) argues that the legal distinction between what is public and private with respect to data has become obsolete as part of the expansion of a more absorbent style of "high" policing. As police data gathering becomes more intensive and extensive, the interstitial area between what is neither public nor private expands.
  24. Becker (1974) notes limitations on using single criteria such as sponsorship or function as the basis for distinguishing public from private police.
  25. These include reporting requirements and immunity protections for exchanging information noted earlier. Some states such as Massachusetts also offer immunity from civil or criminal liability should an insurance company seek to prosecute a case. In addition, federal legislation sets security standards that must be met by an increasing number of private groups (defense contractors airports, nuclear power facilities, health-care institutions keeping controlled substances, banks). The Bank Protection Act, for example, mandates security measures involving vaults, alarms, cameras, guards, and employee screening. The Department of Energy and the Nuclear Regulatory Commission mandate standards for facilities where nuclear materials are used. This includes standards for security personnel and their coordination with public police, as well alarms, surveillance systems, reporting requirements, and inspections (Post, 1983).
  26. Shearing and Stunning (1983) note that an increased proportion of public life takes place on property that is privately owned and likely to be privately policed. The protection of private property has thus increasingly come to involve maintaining public order.
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BECKER, H . (1 'v53) Outsiders. Glencoe, I 1: Free Press.

BECKER, T. (1974) "The place of private police in society: an area of research for the social sciences." Social Problems 21, 3.

BRODEUR, J. R (1983) "High policing and low policing: remarks about the policing of political activities." Social Problems 30, S.

CUNNINGHAM, W. and T. TAYLOR (1984) Crime and Protection in America: A Study of Private Security and Saw Enforcement Resources and Relationships. Washington DC: National Institute of Justice.

FRANKEL, T. (1969) "The governor's private eyes." Boston Univ. Law Rev. 627: 627-657.

GHEZZI, S . (1983) "A private network of social control: insurance investigation units." Social Problems 30, S: 521-S31.

HOUGAN, J. (1978) Spooks: The Haunting of America: The Private Use of Secret Agents. New York: Bantam.

HUGHES, E. (1962) "Good people and dirty work." Social Problems 10, 1: 3-10.

International Association of Chiefs of Police Newsletter (1982) August. n

Insurance Crime Prevention Institute Reports (1981) January.

MARX. G. T. (forthcoming) Undercover Police work: The Paradoxes and Problems of a Necessary Evil. Twentieth Century Fund.

---(1986) "The iron fist in the velvet glove: totalitarian potentials within democratic structures," in J. Short (ed.) The Social Fabric. Beverly Hills, CA: Sage. O'TOOLE, G. (1978) The Private Sector: Rent-a-Cops, Private Spies and the Police Industrial Complex. New York: W.W. Norton.

PIKE, D. (1980) "Bail bondsmen: unofficial court officers." Unpublished manuscript, Yale University, New Haven, CT

POST, R. (1983) "Security, industrial," in Encyclopedia of Crime and Justice. New York: Free Press.

REICHMAN, N. (1983) "Ferreting out fraud: the manufacture and control of fraudulent insurance Cairns." Doctoral dissertation, M.I.T., Cambridge, MA

REISS, A. and D. BORDUA (1967) "Environment and organization: a perspective on the police," in D. Bordua (ed.) The Police: Six Sociological Essays. New York: John Valley.

SHEARING, C. and P. STENNING (1983) "Private security: implications for social control." Social Problems 10, 1: 493-506.

SPITZER, S. and A. SCULL (1977) "Privatization and capitalist development: the case of private police." Social Problems 25, 1: 18-29.

THOMPSON, M. (1986) "Who's minding the store?" Student Lawyer 14, 6: 24-29.

United States v. Jacobsen (1984) 104 S. Ct. 1652.

United States v. Henry (1980) 447 U.S. 264. ss CX

Yale Law Journal (1964) "Bail bondsmen and the fugitive accused-the need for formal removal procedures. 73; 1100.

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