Under the covers undercover work

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Under-The-Covers Undercover Work
Law Enforcement News, February 14, 1991

By Gary T. Marx | Bio

The recent arrest, trial and conviction of Washington, D.C. Mayor Marion Barry after he purchased drugs from a former girlfriend raises important questions. Was the effort to get Barry on a drug charge undertaken after earlier efforts to obtain direct evidence of corruption against him failed?

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 minimum legal requirement? Was the grand jury used in a manipulative way to obtain a felony indictment? (Barry's alleged lying to the grand jury about his cocaine use is a felony, while his possession of cocaine was only a misdemeanor.) Is it sound social policy to use the criminal law not for prosecution, but as a resource to negotiate, e.g., the prosecutor's hint that he would exchange leniency in return for the Mayor's resignation? What of the speculation that the highly visible prosecutor in the case had his own political aspirations? Should special criteria be applied before a political figure becomes the target of an undercover investigation? Is there racial patterning to the selection of targets in recent sting operations or does the apparent pattern simply reflect greater black prominence in political life?

Is it wise to focus scarce resources on occasional users rather than dealers? Shouldn't the government try to block the flow of drugs rather than providing them? Should it have intervened after Barry purchased the drugs rather than letting him proceed to use them? What if the Mayor had suffered a heart attack or other serious health damage from the cocaine? Should the government be offering its citizens potentially toxic substances? Also of concern is the role of sex in undercover investigations. When, if ever, is it appropriate to use friendship and the lure of sex as part of an investigation? Is it worse to use a friend as the betrayer than it is to use a stranger?

There are several ways that sexual encounters are used in law-enforcement, apart from the enforcement of prostitution and anti-pornography laws. Jealous or rejected partners who voluntarily come forward are an important source of police information. But intimate relations may also be created for the purpose of investigation. Sex may serve as a mechanism for confessions, infiltration, blackmail, disruption, scandal and inducement.

  • Confessions. In Houston, an attractive female investigator contrived to meet a murder suspect and dated him for two months. He proposed marriage to her. However, she told him she first wanted to know what it was that seemed to be troubling hiim. With Houston police listening through a transmitter in her purse, he confessed and was arrested.

  • Infiltration. In an attempt to infiltrate the Weather Underground faction of Students for a Democratic Society (SDS), a Federal agent developed a relationship with a political activist and she became pregnant. After considerable indecision, and at the urging of the agent, she had an abortion. The agent's work took him elsewhere, and he ended the relationship, never revealing his true identity or purpose.
  • Blackmail. J. Edgar Hoover's voluminous files on important people contained information on sexual improprieties. Such information was rarely made public or used to prosecute. Instead, the implied threat of exposure was used as a political resource. In the past, information from local police intelligence units in Chicago, Detroit, Los Angeles, Seattle and many other cities has been used in this fashion.

  • Disruption. An informer in Dallas who infiltrated the Committee in Solidarity with the People of El Salvador (CISPES), a group which regularly met in a church, reports that his FBI contact encouraged him to seduce one of the nuns in the group. A Senate committee's investigation of the FBI's COINTEL program cites a Ku Klux Klan informant who testified that he was instructed to "sleep with as many wives as I could" in an attempt to break up marriages and gain information.

  • Scandal. In Los Angeles, a top mayoral assistant, apparently targeted in a vice investigation because of his efforts at police reform, was arrested for lewd conduct under questionable circumstances and had to resign.

  • Incentives. In Florida, a man was arrested after a female undercover agent offered him sexual favors if he would sell her marijuana. In Oklahoma, the government's chief witness in a major corruption investigation admitted she exchanged sexual favors with suspects in order to encourage their participation in illegal activities.
Judged by such tactics as the above, the Barry case may appear benign. Our assessment in such cases may vary depending on whether the target in such cases initiates the visit and the request for drugs, or whether the "co-operating witness" invites the target to "party" with the implied promise of sex after the purchase of drugs.

Of course, an elected official who is believed to flagrantly violate the standards he or she is charged with enforcing communicates cynicism and hypocrisy. The behavior of leaders is not only instrumental,it is also educational and symbolic. But when law enforcement resorts to trickery and exploits intimate relations for a misdeanor arrest, it also communicates something. This is even more true when the suspect is from a minority group and the enforcers are not. The case can be publicly perceived as a witch hunt. In the well-honored words of Justice Oliver Wendell Holmes: "For my part, I think it less evil that some criminals should escape than that the government should play an ignoble part."

Rigid rules against exploiting sex and friendship in an investigation would not be wise. There is a need for flexibility and appreciation in the great variety of law enforcement situations. The seriousness of the offense, the cost of taking no action, the availability of alternate means, the degree of intrusion, the nature of the betrayal, the skill of the operatives and the likelihood that the deception will be publicly judged in court should condition our assessment. But in general, there should be a strong presumption against trading in the currency of intimate relations, no matter how noble the goal.

Gary T. Marx, a professor at the Massachusetts inInstitute of Technology, is the author of Undercover: Police Surveillance in America.

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