0:00:00.0 Speaker 1: We will hear arguments first this morning in number 74 58 22 Hampton against the United States.

0:00:13.1 Andrew Parsons: Hey everyone, this is not Leon, it's Andrew Parsons from Prologue Projects. I'm filling in for Leon while he's away. And on this episode of 5-4, Peter Rhiannon and Michael are talking about Hampton v. United States.

0:00:26.8 Speaker 1: All of the drug transactions were initiated by Hutton, the government's informer. He further testified that all the substances which he sold, had been supplied to him by Hutton.

0:00:36.7 Andrew Parsons: This is a case from the 1970s about entrapment. When law enforcement courses someone into committing a crime. Police claim they use the strategy to stop criminals before they act. But in practice it's often used to juice arrest data, control marginalized populations, and do some bad-ass photo shoots. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:08.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have jerked around our civil rights like a Republican congresswoman jerking off her boyfriend in a public theater.

[laughter]

0:01:17.6 Rhiannon: Oof.

0:01:18.5 Peter: I'm Peter. I'm here with Michael.

0:01:21.1 Michael: Over the pants jerking off, to be clear. [laughter]

0:01:26.0 Peter: Yeah. And Rhiannon.

0:01:26.6 Rhiannon: Yuck. Yuck. Yuck.

[laughter]

0:01:29.7 Peter: No, it's cool. It's just a lady who spends her entire career yelling about drag brunches corrupting our children. Just trying to nut at a musical theater performance in public.

0:01:43.9 Rhiannon: Packed musical theater performance. Did you see also that her companion is the owner of a bar that hosts drag brunches?

0:01:53.1 Michael: Oh my God.

0:01:54.5 Peter: These people don't believe in anything.

0:01:56.1 Rhiannon: No. They're so fucking fake and disgusting.

0:02:02.1 Peter: Yeah. She just reminds me of so many girls I went to high school with who would get in fights in the cafeteria put gum in people's hair when they were younger...

0:02:13.2 Rhiannon: Sure.

0:02:13.4 Peter: Some of them just don't get better.

0:02:15.6 Michael: Yeah.

0:02:16.1 Peter: Some of them sort of stay the same and become very powerful, I guess, that's the lesson...

0:02:22.5 Rhiannon: Yeah. I just had a violent memory of a fight in middle school, I think. I think we were in eighth grade between two girls. One of the girls ripped hair out of the other girl's head.

0:02:33.7 Michael: Ooh.

0:02:35.1 Rhiannon: And taped it to her locker.

0:02:37.2 Michael: Like a trophy or something...

0:02:39.5 Rhiannon: Yeah.

0:02:40.3 Peter: Hmm.

0:02:40.4 Michael: Jesus.

0:02:41.1 Rhiannon: Yeah. Yeah. Yeah.

0:02:42.0 Peter: Well...

0:02:42.2 Rhiannon: Anyways public school in Texas.

0:02:44.7 Peter: Yeah. No, that clocks. Anyway.

0:02:46.6 Rhiannon: Yeah [laughter]

0:02:50.5 Michael: My Jewish and Southeast Asian-dominated prep school in Fort Lauderdale was not like that. [laughter] Let me tell you. [laughter]

0:02:58.8 Peter: Shock her. No one in my school knew how to fight. It wasn't a hard-nosed bunch.

0:03:03.1 Michael: No.

0:03:03.2 Peter: We were all very soft.

0:03:03.3 Rhiannon: Can't say I'm shocked.

[laughter]

0:03:05.6 Peter: The fact that I turned out to be a hardened criminal. [laughter] it's entirely my own doing.

0:03:11.0 Michael: I'm a brawler. [laughter]

0:03:12.4 Rhiannon: You're the biggest delinquent to come out of your middle school. Yeah.

[laughter]

0:03:16.2 Michael: I legitimately was a problem child junior and senior year. I got red-flagged at the school. Have I ever told you guys this? That they made me do basically the school's version of community service where I had to stay after for the little kids and chaperone little kid daycare in the afternoon [laughter] to keep me out of trouble.

0:03:38.4 Rhiannon: Yeah. 'cause he was getting up to no good if they just let him go home from school.

0:03:42.4 Michael: Yeah. 'cause I was ditching class and stuff.

0:03:43.3 Peter: I was also a problem child in my school. And that just speaks to how nice our schools were. Michael, that we were the worst kids.

0:03:50.0 Michael: Yes. Absolutely.

0:03:51.5 Peter: Two future lawyers were the absolute bottom of the barrel [laughter] at our schools.

0:04:01.5 Peter: So today's case, Hampton v United States, this is a case from 1976 about entrapment. Entrapment, of course, if you don't know, is a legal defense to a crime where you claim that although you did commit the crime, you were actually induced to commit the crime by the government. You were entrapped. Exactly what is and is not entrapment is important because going undercover and pretending to be partaking in a crime is one of the primary methods that law enforcement uses to catch criminals. And so there's always been a question of at what point tricking criminals into revealing themselves really becomes tricking innocent people into committing a crime. So in this case, a man is convicted of selling heroin. Twist here is that it was actually DEA agents who found the purchaser and facilitated the transaction. So this guy Hampton, he says, "Hey, isn't this entrapment because the DEA actually committed most of the crime here."

0:05:09.9 Peter: But the Supreme Court in a five to three decision, justice Stevens taking no part because he is a lifelong heroin dealer. [laughter] Supreme Court says no dice, because Hampton was still predisposed to committing the crime. So Rhi I'll hand the background over to you.

0:05:32.1 Rhiannon: Real good stuff here with predisposition to crime. Love these cases out of the '70s. Alright. Yeah. Some background. This is St. Louis 1974. I can't really decide if this would be a cool place to be or not. Kind of leaning to not...

0:05:49.6 Michael: I think, no.

0:05:50.0 Rhiannon: Yeah. [laughter] Yeah.

0:05:52.2 Peter: When did the arch go up?

0:05:54.3 Rhiannon: Really good question. Have no idea. But I don't think that makes it cooler.

[laughter]

0:05:58.3 Rhiannon: So big movies that year, 'Blazing Saddles', 'Godfather Part II'. I'm not sure if Charles Hampton and these agents were inspired in any part by these movies about various crime.

0:06:11.8 Peter: Chinatown.

0:06:12.0 Michael: A classic.

0:06:12.9 Peter: Hold on, let's spend 10 more minutes listing movies from 1974.

[laughter]

0:06:17.1 Rhiannon: I have not seen any of those three movies. I haven't seen Blazing Saddles.

0:06:20.0 Michael: Really?

0:06:20.4 Rhiannon: Godfather Part II. I haven't seen Chinatown. Yeah.

0:06:23.2 Peter: Oh my God.

0:06:25.2 Rhiannon: I know.

0:06:25.3 Peter: Someone tell your boyfriend and he's about to ruin an entire weekend of yours.

0:06:27.5 Michael: Yes.

[laughter]

0:06:29.6 Rhiannon: He really is. Nobody... [laughter]

0:06:31.2 Michael: Chinatown is sort of perfect for this case though. 'cause at the end the detective is just like... They don't really solve the crime. They don't make anything better and the detective is left this broken man.

0:06:41.4 Rhiannon: Okay. Nice. [laughter] I do like that. Yeah. So this case, our boy Charles Hampton, he started playing pool with this guy at a bar. The guy's name is Jules Hutton, unfortunately for Charles Hampton, Jules Hutton was a DEA agent. By the way, side note, the DEA, the Drug Enforcement Agency, had at this time just been opened, basically. It had just been in existence for a year. Opened its doors to ruin lives and ruin entire communities, actually, by Nixon's Department of Justice in July, 1973.

0:07:17.0 Michael: A little baby DEA.

0:07:17.6 Rhiannon: Yeah. These are baby DEA agents.

0:07:22.7 Peter: Very small.

[laughter]

0:07:22.8 Rhiannon: Tiny. [laughter] So yeah, Hutton is a DEA agent. There are two stories about what happens next here between Hutton and Charles Hampton. So, according to the DEA, according to Hutton, Charles Hampton told Hutton that he needed money and that he could get heroin to sell. Hutton tells Hampton that he can find buyers for the heroin and they set up a meeting with two people who Hampton thinks are there to buy the heroin. But in actuality it's two more DEA agents. Hutton has set up Hampton to sell heroin to two undercover agents. Now, according to the DEA, Hampton brought the heroin to the meeting. Hampton is the one who supplied the heroin and the undercover agents buy the heroin for $145. Now, the next day, one of the undercover agents calls Hampton up and says, "Hey, I wanna buy some more heroin." So they set up another meeting and the undercovers again buy heroin from Hampton. And at that point, that's when the agents arrest Hampton. "We're not actually heroin buyers. We are cops and we gotcha."

0:08:29.8 Peter: Yeah. Honestly, though it must have been really frustrating to get busted by an agency that was just created. They're like, "We're with the DEA," and he's like, "What? What the fuck are you talking about?"

0:08:42.9 Rhiannon: "Who is that?" Yeah. Now Charles Hampton's version of events is different. He says he did meet Jules Hutton playing pool at a bar and he told Jules that he was going through hard times and was struggling with money, but it was Hutton, the DEA agent, who told him that he had access through a pharmacist friend to a fake drug that they could pass off as heroin to gullible buyers. Hampton agreed to the scheme, he says, and they set up transactions with the two undercover agents. Again, those are connections that Hampton only makes through Hutton, the DEA agent. He doesn't have buyers, but for the DEA. So they make the sales, Hampton is arrested, but importantly, know in this version of events that Hampton didn't supply the drugs, didn't supply the buyers. Basically is only present for the sale. To effectuate that final transaction. In either case, whether it's the DEA's version of events or Charles Hampton's version of events, the government has provided a massive part of the crime. That makes it a complete crime. Even in the government's version of events. If Hampton is the one who supplied the drugs, then yeah. Maybe arrest him for possession of heroin. But the DEA is the one who supplies the supposed buyers. Which makes this a crime of actually distributing heroin rather than simple possession.

0:10:09.6 Peter: They do two purchases which allows them to increase the charge based on the quantity and the frequency. So the government, in a way, is taking what would otherwise be simple possession. And turning it into multiple illegal transactions for an increasingly large amount of heroin.

0:10:28.1 Rhiannon: That's right.

0:10:28.2 Michael: Yeah. I'm trying to think of the word, but it's like, it's not curating, but it feels like they're really...

0:10:33.0 Rhiannon: Manufacturing.

0:10:36.1 Michael: Manufacturing and putting together this...

0:10:38.5 Peter: They're certainly facilitating it.

0:10:39.7 Michael: Yeah.

0:10:40.7 Rhiannon: Yep. So Hampton is eventually convicted of two counts of distribution of heroin in federal court. He's sentenced to five years probation. But he appeals his conviction based on a defense of entrapment, which Peter referred to earlier. Basically saying, "I wouldn't have done this if not for the government basically furnishing every step. Inducing me to commit this crime. If I hadn't come into contact with the government furnishing every step of the crime, I wouldn't have committed the crime." So the appeals make it all the way to the Supreme Court where it's our boy William Rehnquist calling the shots here.

0:11:16.8 Peter: Yeah. In his prime. [laughter]

0:11:18.8 Rhiannon: Yep.

0:11:18.9 Michael: So sorry.

0:11:20.9 Rhiannon: What?

0:11:24.1 Michael: Just realized that the year of this, it's our boy William Rehnquist was currently buying a house with restrictive covenants on it. As he's hearing this case he's like, "Yeah, no Jews."

0:11:31.9 Peter: This is when he's buying the No Jews House, that's right.

0:11:34.8 Michael: Yes. [laughter] That's right.

0:11:36.4 Rhiannon: Yep. Yep.

0:11:37.4 Peter: Hear more in our premium episode about William Rehnquist. So the legal question here is whether these types of situations where the government basically facilitates the crime, violate the due process rights of the defendant, essentially that it's just unfair to the people being charged. And there are a couple of key cases about entrapment before this one. One is from 1932 Sproles v United States, the court there established the test for entrapment, which is basically that a situation is not entrapment if the defendant is predisposed to doing the crime. The court says entrapment applies when the government "Implants in the mind of an innocent person the disposition to commit the alleged offense." So even if the cops essentially set you up and facilitate the crime, the question is whether you were predisposed to doing that crime regardless.

0:12:34.4 Michael: It's only if there was a true inception.

0:12:36.1 Rhiannon: Right. Right.

0:12:39.2 Peter: Am I getting crime vibes off this guy or no?

[laughter]

0:12:43.3 Rhiannon: Yeah. Yeah.

0:12:45.8 Michael: Yeah.

0:12:46.2 Peter: Then in 1973 there was a case called the United States v Russell, where the court sort of clarifies this. In that case, government agents had helped purchase a key ingredient for making meth. I believe that the ingredient was actually legal to buy.

0:12:58.1 Michael: Yes.

0:13:00.1 Peter: Rehnquist wrote the majority opinion and he said this is still fine because the defendant was predisposed to selling drugs regardless. But he goes on to say that it's possible that in the future there could be an exception to this rule if there was a case where the government's conduct is particularly outrageous. And so that's what's being disputed here. Hampton is claiming that the government basically did most of the crime here. And that should sort of qualify as outrageous-enough behavior by the government that this is entrapment. But Rehnquist writes the majority yet again and he says, "No, no, you misunderstood what I meant when I said that in the last case." [laughter] He says that it's true that the government played a more significant role in this case than in the prior one.

0:13:45.1 Peter: But the difference was a matter of degree, not of kind. So yes, they were more involved, but it was the same type of involvement as the prior case. He said that the government was still acting in concert with the defendant in this case so you can't claim entrapment. He does not actually clarify what kind of conduct by the government would qualify as being of a different kind. And I'm not sure that I understand what it means. I'm also not sure that he understands what it means. It seems to me like in the prior case, he was just sort of making room for a theoretical exception. And now that he's being asked about it, he's like, "Well, no, no, no, that was... I wasn't really serious about that. That was just a little just in case that I put in that opinion." [laughter]

0:14:33.9 Rhiannon: Yeah. And that's the concurrence which we'll talk about in a little bit. That's basically their problem here, is like, you're not saying it, but you're basically saying there's no exception ever.

0:14:43.4 Peter: Now what's happening just beneath the surface here is a battle between what are called the subjective and objective tests for entrapment.

0:14:52.1 Rhiannon: Yeah.

0:14:53.1 Peter: The subjective test is this one that the court is using where they're doing this analysis of whether the guy is predisposed to doing the crime. But there are also people who believe that the test should be what's called the objective test, which is about evaluating the actions of the police and the government and deciding whether they were too involved in the commission of the crime. And I think my view of this is that the objective view makes a lot more sense, because this is a constitutional issue and the constitution is a set of limitations on the government. So when you're analyzing whether the constitution was violated, you should really be analyzing the actions of the government.

0:15:32.2 Peter: But here, the court has created a test where the actions of the government aren't actually relevant. The only thing that matters is whether someone was predisposed to the crime. And I think that just fundamentally doesn't make a lot of sense as a constitutional analysis.

0:15:48.1 Rhiannon: Yeah.

0:15:48.8 Michael: No.

0:15:49.4 Peter: And I don't think that the court really digs into it. There's not a lot of thoughtfulness here. It's a pretty short opinion. If you go back and read the prior opinions, they're also pretty short. The one from the '30s basically reads like a child trying to do law.

[laughter]

0:16:06.5 Rhiannon: Easiest job in the world.

[laughter]

0:16:08.0 Peter: There's just not a lot of thought about what this test actually means and what the point of it is.

0:16:14.4 Rhiannon: That's what I was just about to say is Rehnquist hinges so much on whether or not the defendant in an entrapment case or the defendant who is trying to mount an entrapment defense, whether or not this person is predisposed to doing the crime. There's not an actual definition anywhere here of what being predisposed means. It's not even explained. It's like you said Peter, it's like, "Are there crime vibes off of this person?" Well then apparently they can't be entrapped. It's never the government's fault for facilitating a full crime.

0:16:48.9 Peter: It's weird because they could just say that what it means is that the defendant came up with the idea for the crime.

0:16:57.0 Rhiannon: Sure. Initiated it.

0:17:00.2 Peter: And then in this case they could say that it applies.

0:17:03.6 Rhiannon: Right.

0:17:04.9 Peter: That the defendant created the idea and maybe took some affirmative step towards effectuating it. But they don't actually say that they just use this predisposed thing, which makes it seem like they're just analyzing whether or not someone feels like a criminal to them.

0:17:21.3 Rhiannon: Exactly. Yeah. So there is a concurrence by Justice Powell here. It's joined by Justice Blackmun and Powell and Blackmun are agreeing that Hampton does not have an entrapment defense in this case, but they don't really wanna go as broad as the plurality is doing in Rehnquist's opinion in saying that basically every predisposed defendant will not have an entrapment defense. Which is basically what Rehnquist is saying without saying it. Says it in a couple of different ways that being predisposed to the crime is sort of the dispositive question of whether or not you can mount an entrapment defense. And that if you are predisposed to doing the crime, then you can't claim that the government entrapped you. So Powell is saying in the concurrence, "Ah, I don't think that's what due process means. Due process must mean something more than that. That we do take into account the potential outrageousness of the government's actions, that we do take into account what the police are doing." He also mentions that all of these entrapment cases have been about possession and distribution of drugs. There are tons of other criminal cases where police action, government action and the defendant's actions could be really, really different. And so to say at this point in these short opinions where the precedent has only just been about drug crimes, that predisposition is this dispositive thing.

0:18:49.0 Rhiannon: Powell's not ready to go that far. That's basically it. This is a really short concurrence, a couple of paragraphs. And the end of the day Charles Hampton's still screwed.

0:18:58.5 Michael: Yeah. Certainly not foreshadowing these issues creeping up into other areas of law in modern day at all. Brennan has a dissent also pretty short. He goes at the point Peter made about the objective test and that when we're talking about constitutional limitations on the government, we should be focusing on the conduct of the government. And the question should be whether the government has gone too far, has been too involved, is too responsible for the criminal activity. I think that's all just obviously true, but then he also sort of says it kind of doesn't matter. And I just wanted to read this one paragraph because I think it sort of boils down the case pretty well. He says, "Whether the differences from our precedent are of degree or of kind, I think they clearly require a different result where the government's agent deliberately sets up the accused by supplying him with contraband and then bringing him to another agent as a potential purchaser. The government's role has passed the point of toleration. The government is doing nothing less than buying contraband from itself through an intermediary and jailing the intermediary." On one set of facts here, that is exactly what happened.

0:20:23.4 Peter: And I think it's important... We don't really know if Hampton supplied the heroin or the government did. The jury did not believe Hampton. But if you use Rehnquist's test, it doesn't matter. And that's what's wild about this. And just to put this in perspective, something that our listeners can maybe relate to a little bit more. Imagine that you are a relatively frequent marijuana smoker. What this means is that basically you could never claim entrapment on a marijuana possession charge, because you're predisposed no matter what the government does to set you up. 'cause you're a regular user of marijuana, you're predisposed to possession. No defense. That's the framework that Rehnquist is setting up here.

0:21:09.0 Michael: And the entrapment defense, like we've mentioned, flows from, at least in part, the due process clause. So this is a constitutional protection, which means literally if you're a regular marijuana user, you have fewer constitutional protections than someone who does not regularly use marijuana.

0:21:26.0 Rhiannon: Right. If you have this predisposition. That's what this holding stands for. And I think talking about this case maybe transitioning into some discussion here, something we haven't said so far in the episode is that on a basic level, we were talking about the government creating crimes, participating in crimes, and then what we hold otherwise innocent people who get wrapped up in this what we say their fault is and how we punish them for their involvement in a crime that the government created or facilitated or made worse, made more serious.

0:22:08.1 Peter: Yeah. And this entire body of law seems to be built around the idea that there are criminals and non-criminals.

0:22:15.8 Rhiannon: Absolutely. With this predisposition thing.

0:22:19.3 Peter: Some people are predisposed to committing a crime. And some people are not and we're gonna smoke out the bad guys. It's really an inversion of how prosecutions are supposed to work. Where someone needs to have the intent to commit a crime and then take actions to make the crime happen. With entrapment, you have situations where the government is fostering the intent and facilitating the act of the crime. So the more the government is involved, the less the traditional elements of a crime are actually present. Which should mean, at the very least, that the government needs to be careful in these situations. And I'm not saying that I think undercover agents or sting operations are inherently unconstitutional, but all of this exists on a spectrum and the more the government is involved in the crime, the larger the due process concerns. The analysis that the court uses for this based on whether the person is predisposed to the crime, is basically a way of skirting all of this and just being like, "Well the government's actions don't matter because this is a bad boy that we're talking about. This is a very bad boy."

0:23:29.5 Rhiannon: Yeah. Period. One thing I'll say, Peter, is one big reason why sting operations and violent undercover operations led by the police aren't unconstitutional is 'cause the Supreme Court hasn't said they are. Has decided that they're A okay.

0:23:45.2 Peter: The reason I'm sort of ambivalent on them generally is because you can imagine situations where I don't think that they are creating any sort of great injustice and there are also situations where you can say that it would be almost impossible to fight certain very dangerous forms of crime without them. But I think that those situations are actually fairly rare. You look at the To-Catch-a-Predator-style stings. Those aren't something that we need every police department across the country running. And there's also a huge gap between someone standing on a corner being like, "Illegal guns and drugs for sale," and then a cop walks up and says, "Yeah, I'll take one," and then bust some afterwards and a cop walking up to someone in a bar and being like, "Hey, you know how to get ahold of any guns and drugs?" You know what I mean?

0:24:37.4 Rhiannon: Yes.

0:24:38.2 Peter: There's a huge gap between those. And we need to respect that those are different situations.

0:24:43.9 Rhiannon: Yeah, absolutely. I think the rareness, the infrequency of sting operations and undercover agents these massive undercover schemes by the police, the infrequency of their effectiveness. And actually how sting operations and undercover operations are actually frequently abused by the police, just like all of the other powers that we give them with no accountability. No limitations. I think that is a significant consideration in how things like entrapment in these cases actually operate in people's lives. And that makes me think about this idea that the government itself is creating more crime so that it can entrap people in these schemes and then arrest and punish them for doing the crime that they facilitated. Just goes to really emphasize the idea that crime is a social construct, if the government can create it and do it and make opportunities to do crime in order to catch the people that fall into their trap. I think it supports this idea in other areas of criminal law that the choice of what to make criminal activity and then the choice of who to prosecute for that criminal activity. It's not these objective decisions that just come the penal code in your state. These are policy choices that are made by politicians and law enforcement and are frequently abused.

0:26:17.9 Peter: Right. One of the ways that people always talk about crime as a social construct is by pointing out that police dedicate an enormous amount of resources, relatively speaking, to petty larceny. Versus say wage theft, which everyone knows dwarfs all larceny every year. And these are not just policy decisions, but decisions that cops make about what they believe crime to be, what crime they believe to be important, and where the billions and billions of dollars that all the major cities pour into the police budget should go. And you can't separate out those discussions from the fact that this is just some guy at a bar at worst being like, "You know, I can get some heroin if you can sell it," and then the government stepping in and basically doing the rest of the transaction.

0:27:05.3 Michael: Yeah. And that makes me think about generally the role of police and policing in American society. If you don't give it much thought, you're like, "Oh, they protect the public." But I think if you're looking at it from an anthropological perspective, that's not really the case. And I think this is a good illustration of that. They're more sort of the branch managers of American civil order. If you work at a local McDonald's, your branch manager runs the show and is sort of the be all, end all, but they're a little nothing compared to the corporation, that's their boss. The police in this country serve wealthy and corporate interests. They serve the political elite. So yeah, they manufacture crime in order to lock people up because there is a broad social policy of locking up as many poor and especially brown poor people as many as possible. That's an American social policy going back 50 years to Nixon, the law and order candidate who was elected in reaction to the civil rights movement. This is a long running decision that elites have made and this is just cops acting on that policy.

0:28:33.7 Peter: It's a system that keeps poor people on edge. If you're a kid at Harvard looking to score some coke, you don't have to worry that the person you're asking is an undercover. But if you're a poor guy in some bar looking for H, maybe maybe you do have to worry about that. There are tons of situations where different people committing the same crime not only get treated differently, but think about it differently. Because they know that they are treated differently.

0:29:05.5 Michael: If I had grown up poor and black and had behaved how I did, we would not be on this podcast together because I would be in prison.

0:29:13.3 Rhiannon: A hundred percent.

0:29:13.3 Michael: Absolutely. You kidding me? [laughter]

0:29:17.3 Peter: Earlier we were joking about how we were the bad kids in our school but I'm sure that if you had just put me in the wrong situation, in the wrong environment, I would've still been the bad kid at those schools even if that meant doing a lot worse...

0:29:31.2 Michael: Exactly.

0:29:32.0 Peter: Even if that meant taping some girl's hair to my locker as a trophy. Being poor makes these stakes high in all these situations where the stakes are low for people who are well off. Another issue with a lot of these practices, and I'm gonna say entrapment, I'm not really talking about the legal definition, but I'm talking about the police creation of crime for the purpose of catching someone in that crime. They obfuscate the efficacy of police. Obviously as a society we would like to have a sense of how effective police are, and that's actually somewhat hard to measure for a lot of reasons. We can sort of measure it within narrow confines. It's hard to know how many murders police prevent, but we can see how many they solve after they are committed, most of the data we have about police efficacy is really about clearance rates.

0:30:29.8 Peter: One; how many reports of a crime are there and two; how many of those reports result in a charge or a conviction? Now this data is not very precise, but it does sort of unequivocally tell us a couple of things. Namely that police are bad at solving crimes. And that they have gotten drastically worse in recent decades. Clearance rates for murders in this country hover around 50% and that is higher than any other crime. The rate for violent crime generally in recent years is barely above 40%. For rape, it's about 30%, by the time you get to auto theft it's about 12%. Just humiliating numbers. Absolutely no excuse, complete incompetence reflected in these numbers. And these are only for reported crimes. Many crimes go unreported. Some more than others. So the actual clearance numbers are even lower. So one purpose that these operations serve in reality is to juke the stats in the favor of police. They get to create a crime and solve it all at once. This then gets baked into the data, which makes cops look like they're solving a higher percentage of crimes than they actually are.

0:31:49.7 Michael: They get to do sick photo spreads with $80 in singles. A plastic gun.

0:32:01.7 Rhiannon: And a ziploc baggie of weed. Yeah.

0:32:02.6 Michael: Yeah, exactly. And put it up on their Twitter feed and be like, "We're crushing it."

0:32:08.1 Rhiannon: Yeah. Exactly.

0:32:08.8 Peter: Got this off the streets today.

0:32:11.7 Rhiannon: Right.

0:32:11.8 Michael: Yeah.

0:32:11.8 Peter: Cops will say that these operations are a way of smoking out criminals and maybe discouraging crime. Keeping the real criminals uneasy. "Is this guy a cop? Is he not?" That's probably true to some degree, but it still obfuscates what the true crime rates are and how effective cops actually are at solving crime. We truly don't know. We know that they're relatively ineffective and even less effective than the numbers tell us, but we have no real concept of how effective police are and part of that is that they get to manufacture crimes and solve them on their own. That little pat on the back for me, "I went and did a crime and then solved it." Surely it's true that some of these operations get people who otherwise were about to commit a crime off the streets. But surely it's also true that large chunks of these are just people who otherwise would have not committed a crime, in which case the outcome is putting that person in prison. Which should itself be a crime. But we're getting too deep now. So.

0:33:19.8 Rhiannon: Right. Well, taking one step back, Peter, from baking the numbers of efficacy and what we know about the stats of police efficacy, just thinking about what we allow the police to do, what power we give to the police. And it's really about thinking about if you want to live in a society where police say that in a large percentage of situations, the only way to stop criminals is to do more crime with them. I just think you've got it wrong. I just think you've got it wrong if that's your argument, that the only way to stop some people, the only way to smoke people out, the only way to find the real bad guys is that we're doing crimes with them. And that we create crimes and that we give people the tools to commit crimes. But surprise, we're actually there, so we gotcha. I just think it's on its face quite illogical and sort of obviously ineffective that you would be stopping crime, deterring crime, discouraging crime, on any large scale, by doing crime.

0:34:28.6 Peter: And I think these little one-off drug deals undersell how a lot of these operations work. A lot of these operations involve police attempting to get higher ups in say drug operations.

0:34:44.8 Rhiannon: A crime organization. Yeah.

0:34:47.2 Peter: And so they bust someone at the lower level, and then they become their handler.

0:34:52.4 Rhiannon: And they flip 'em.

0:34:53.3 Peter: Right. They try to get them to report on the organization so that they can sort of develop charges against the rest of the organization. Which means that they are actively managing people who are actively committing crimes and doing it knowingly, this happens all the time. Every FBI operation to take down mob bosses, for example, involved them basically overseeing Mafia operations for years on end in order to get whoever was at the top. And I don't know to call it morally hazy undersells it, you are making yourself a mob captain in these cases. As a law enforcement official.

0:35:33.5 Rhiannon: It's what 'The Departed' is about, there are movies about how fucked up this is. [laughter]

0:35:44.3 Peter: But yeah, these operations sort of necessarily involve the cops turning a blind eye to certain elements of the crime or certain crimes in order to capture certain people doing other crimes. It's all just a little too fucked up for me. That's...

0:36:01.4 Rhiannon: Yeah. Yeah. And I know The Departed is a movie, but in many senses, again, that culture of allowing police to create crime so that they catch criminals, you have to think of what flows from that culturally and what the police feel they have the power to do. That corrupts law enforcement organizations, because they're doing and managing crime as their job and that increases their own criminal activity among themselves in their own organizations. It erodes public trust. This is not the creation or the protection of public safety.

0:36:37.6 Peter: Yeah. I also wanna point out that 'Donnie Brasco' was also a movie, but it was based on a true story. So.

0:36:48.0 Rhiannon: I don't know her.

0:36:47.8 Michael: 'Eastern Promises'. A good one.

0:36:47.9 Rhiannon: I don't know her either.

0:36:48.0 Michael: Not based on a true story, but still excellent. Wait, you've never seen Eastern Promises?

0:36:52.0 Rhiannon: No. I don't know what Donnie Brasco is either.

0:36:55.6 Peter: You want some Donnie Brasco?

0:36:56.8 Rhiannon: I'm out of the Loop.

0:36:58.8 Peter: Pacino, Johnny Depp.

0:37:00.4 Michael: You should see Eastern Promises 'cause you'll see Viggo Mortensen's dick.

[laughter]

0:37:09.3 Peter: Nice. I was trying to figure out how to get Rhi to watch a movie starring Johnny Depp and you're just bringing dicks into it. It's unfair.

0:37:16.0 Michael: Full frontal.

0:37:16.0 Rhiannon: Yes. That is a huge reason why I watch a movie, to watch a grimy, middle-aged, white guy show penis.

0:37:23.6 Peter: Hang dong, I believe we're saying.

[laughter]

0:37:26.1 Michael: In a brutal, gory fight, by the way. He's getting stabbed in the back, and it's awesome.

0:37:32.7 Rhiannon: Wow, even better.

[laughter]

0:37:35.3 Peter: God, that's the worst way to go, dick out. You know what I mean?

[laughter]

0:37:39.8 Peter: With your last burst of energy, just slowly trying to cover it.

[laughter]

0:37:45.5 Peter: Okay. You have to cut all this.

[laughter]

0:37:52.4 Michael: Talking about how this is morally hazy, I did wanna talk about some examples of real sort of ridiculous overreach in terrorism cases. But before that, there's also a drug case I wanted to mention. This American Life did an episode about it, about 10 years ago, called 'What I Did for Love', that I recommend. It's very good. This is not a case where they're trying to roll people to get to their higher ups, as far as I can tell, or not a serious effort. This is where a central Florida police department put an undercover agent in a high school, a young woman. Some kid got a crush on her, and was asking her to prom. And she was like, "Well, can you get me some weed?" And so he wanted to impress this girl to take her to prom, and ended up going to prison.

0:38:46.8 Rhiannon: That's so deeply fucked up.

0:38:50.9 Michael: It's unbelievably fucked up. This is not somebody you're rolling over to get to the Lake Worth Florida mob.

[laughter]

0:39:00.9 Michael: We are literally just plucking kids having fun out of school and ruining their lives.

0:39:07.7 Peter: That's why before you ask someone to prom, if anyone out there is in high school, ask them whether they are a cop...

[laughter]

0:39:14.0 Michael: That's right.

0:39:14.9 Peter: 'cause they have to tell you.

0:39:18.3 Michael: But yeah, this sort of cancer in American law enforcement metastasized after September 11th, 2001, with anti-terrorism operations by the federal government and various state and local law enforcement agencies. In and a lot of ways kinda similar to this case in that after the Passage of The Patriot Act and the transformation of the FBI from a law enforcement agency to almost a domestic intelligence agency, they needed to show results. People were freaked out and scared. "What if we're just gonna have terrorist attacks every few months, every year? What if this is just life now?" And so they wanted arrests, they wanted proof that they're doing stuff. And the first big one was out of South Florida, Miami, a group called the Liberty City Seven, which it turns out were a bunch of dudes who thought they were ripping off the police informants. These were guys who were hard up for money, far from being Islamic extremists. They weren't even purely Islamic. Their leader was described by the Intercept as an eccentric spiritual guru, faithful to the Moorish Science Temple of America, a mix of Christianity, Judaism, and Islam.

0:40:36.8 Peter: Oh, yeah. Just a generic weirdo, sort of in a cult.

[laughter]

0:40:41.2 Rhiannon: Religious jack of all trades.

0:40:44.2 Michael: Yes.

[laughter]

0:40:45.2 Michael: He's hard up for money. Some of his most ardent followers are also hard up for money because they have family members who are sick and have expensive healthcare. And so they're basically blowing smoke up the FBI's ass, being like, "Oh yeah, we'll get you missile launchers. Oh yeah, we'll bomb this bridge, whatever. We just need the money. We need the money." Meanwhile, the FBI informants are also trying to get paid by the FBI.

0:41:08.6 Rhiannon: They're amateurs themselves.

[laughter]

0:41:10.6 Michael: Yeah, exactly. And these guys are just ripping each other off. And this was a huge high-profile bust. I think five of them went to prison for eight years each as a result. There was a guy, Shahawar Matin Siraj, a Pakistani who was borderline intellectually disabled. He's on tape being asked to plant a bomb at a subway station and saying he needed to ask his mom. That's what we're dealing with here. And also on tape, I think 18 times, saying he actually didn't want to plant the bomb, did not want to harm anyone, and he didn't want to be involved in anything that could hurt people. And his sentence was for 30 years. He's still in prison. Parole will be available in 2030. He was, I think, 19, and desperately trying to get out of something he got way in and over his head in, literally on tape, saying, "I don't want to be a part of this."

0:42:13.8 Michael: Yassin Aref, a Kurdish man, I'm just gonna read this from this New York Times article because I feel like can't improve on their description of this, "Was found guilty of providing material support after he watched an informant pretend to lend a friend some money. The informant claimed that the funds were obtained by selling a missile launcher to be used to assassinate a Pakistani ambassador. Aref couldn't follow English fluently and said he didn't realize what he had witnessed. He thought the absurdity of this case would finally be exposed when the government admitted that a translation error had led officials to mistakenly conclude that he was a military commander." He went to prison for several years for watching some guy fake-lend some other guy some money. And this is tied to the point I was making about social control. There was a decision in 2001 that people of Arab descent, people who practiced Islam as a religious faith were no longer going to be full and fair and equal citizens.

0:43:25.0 Michael: Their citizenship was now lesser and they were gonna be policed heavily and we were going to lock up as many of them as we could on as many charges as we could and manufacturing crimes, it served two purposes, one; keeping the public scared that, "Oh, wow, there's still all these terror plots going on all the time."

0:43:49.5 Rhiannon: "There's these bad guys out there."

0:43:53.2 Michael: While reassuring them, "But we're on it, we're on it. We are locking these guys up by the hundreds, by the hundreds." And it's really disgusting and it's that spiritual intellectual air of this case.

0:44:07.1 Rhiannon: Yeah. Absolutely.

0:44:07.2 Peter: Yeah, and a lot of these cases, the anti-terrorism cases, have the sort of fundamental problem that we talked about where the defendant didn't even think of the crime, but instead was just targeted.

0:44:22.0 Michael: Oh, yeah.

0:44:24.0 Peter: What's incredible about this is that the FBI's strategy often mirrored militants who were recruiting. If you're a militant who actually is a terrorist or affiliated with a terrorist organization, you might go to a mosque and try to identify young, disaffected...

0:44:44.5 Rhiannon: Vulnerable, yeah.

0:44:44.6 Peter: Perhaps not particularly intelligent individuals at the mosque and target them for recruitment. The FBI did the same thing with the goal of getting them to just be like, "Yeah, okay, maybe I'll do that." And then they were busted. And there were multiple cases. The Shahawar Matin Siraj case was one of the more prominent and outrageous because of the fact that he was basically intellectually disabled. But there were tons of cases where agents were just pressing the issue of, basically, let's do terrorism. Don't you wanna do terrorism? Let's do terrorism for years until someone finally capitulated to a degree that they felt was criminal and busting him. That was enough for them to say that they were predisposed in these cases. And I think that the way that law enforcement treated Muslims after 9/11 mirrors how they treat poor people. And what I mean by that is that the idea here was that there are good Muslims and bad Muslims and we're gonna find the bad ones. So when they spent two years convincing someone to participate in a terrorist plot and the person finally did something affirmative, they were like, "Ooh, got one."

0:46:01.8 Peter: Just like when they leverage a poor person who's in a bad situation and maybe needs some cash to try to get them to participate in a drug deal, they can imagine that that was a bad guy. That they have gotten a bad guy rather than the pretty obvious reality to anyone who's ever taken a fucking sociology or psychology course, that all you did was squeeze someone, an innocent person who was in a bad spot and make their situation worse until it was technically criminal.

0:46:35.6 Michael: Yeah, and if you think we're just putting our gloss on this, there are former FBI agents who say this. Say that this is what it was like. There was one quote that stuck with me from an Intercept piece. This guy, Mike German, former FBI special agent who did undercover work for terrorism investigations says that had he told his supervisors that he wanted to initiate an operation targeting individuals who did not belong to a terrorist group, did not have any weapons and did not have a plot, and that the FBI itself would provide all those things in the course of the operation, they would have "sent me to counseling" but the 9/11 attacks changed that.

[laughter]

0:47:18.9 Michael: Changed that. Another guy, Terry Albury, went to jail for several years for leaking classified information about broadly targeting Muslim Americans and Arab Americans and sting operations that were just totally bogus nonsense just a few years ago. And I think he's still in jail. I think his sentence is up soon though, I'm not sure.

0:47:46.7 Peter: So, we're hitting on a broad spectrum of law enforcement conduct, but it is sort of predicated in a few basic concepts. One is that there are in-groups that are safe and there are out-groups that it's open season on. If you are in a poor community, a black community, you can get relentlessly targeted by law enforcement with drug stings, etcetera. If you are in a Muslim community, you can get relentlessly targeted by the FBI. And another is just this concept that I've been hitting on that they really believe that criminality is like almost biological, that it's something innate to people, that there are good guys and bad guys, a belief that is particularly ironic since just about every police officer in the United States is a criminal in the literal sense that they commit crimes.

[laughter]

0:48:46.0 Peter: And that doesn't register to them because they will forever view themselves as the good guys. And the people in the FBI will forever view themselves as the good guys. You can't possibly explain to them [chuckle] that they are committing crimes because it does not process in their brains.

0:49:02.7 Rhiannon: Right, yeah, and I think here with this case, just bringing it back to the Supreme Court, you have the Supreme Court adopting this in-group, out-group approach to supposed criminality.

0:49:10.0 Michael: As the legal standard.

0:49:16.5 Rhiannon: Exactly, that's saying that they're holding the legal standard here, is that if you're predisposed to crime, whatever that means, that's for a cop to decide, if you're predisposed to crime, then the government can't be held accountable for tricking you into doing a crime.

0:49:32.9 Peter: Yeah, I think that there's definitely a lesson here about how much the Supreme Court reflects back our reactionary tendencies. This is something that we saw much more acutely starting in the mid-70s as the Warren Court truly ended and we sort of entered the reactionary modern era. But at this point, when this case is coming down, it is no longer a court that is interested in the protection and expansion of rights. This is a court that is interested in law and order, interested in the reification of police powers at the state level especially, and that trend has continued to this day. There's also the 1999 movie, 'Entrapment'...

0:50:24.3 Rhiannon: Haven't seen that one either.

[laughter]

0:50:26.6 Peter: Which I've never seen.

0:50:28.8 Michael: I've never seen that one, yeah.

0:50:30.0 Rhiannon: Who's in that? What is it about?

0:50:32.0 Peter: I don't know what it was about. I assume it was about entrapment.

[laughter]

0:50:35.0 Rhiannon: Oh, Catherine Zeta-Jones.

0:50:38.5 Peter: Yeah, yeah, yeah, yeah.

0:50:40.4 Rhiannon: And she does the laser maneuvering in a sexy way.

0:50:43.9 Michael: Her butt in the laser net.

0:50:45.4 Rhiannon: Yeah, yeah. She makes sure the titties don't touch the laser.

0:50:46.1 Peter: I thought no one saw this. All of a sudden, you guys are giving me the full rundown.

0:50:52.3 Rhiannon: Well, it's so classic.

0:50:53.8 Michael: I can't believe you don't remember this. It was playing everywhere and everybody was always talking about it. The way that Catherine Zeta-Jones is breaking in. She's a cat burglar and she's slinking through a red laser net and just sticking her ass in the air.

0:51:05.0 Peter: She did the Mission Impossible, but sexy. And this is a few years after Mission Impossible too. So they were literally just being like, "Let's do it, but do it slutty this time."

0:51:14.3 Rhiannon: Right, exactly.

0:51:16.9 Michael: Yes, that's exactly right.

0:51:17.1 Peter: That rules. I like that a lot. I'm gonna watch Entrapment this weekend.

[laughter]

[music]

0:51:29.2 Peter: All right, folks, next week, premium episode about the Southern Manifesto. You have probably heard of Brown v Board of Education, but did you know that nearly every Southern politician in the United States subsequently signed a document in support of segregation and eventually effectuated a small to medium-sized retreat on the part of the Supreme Court itself. Find out more...

[laughter]

0:51:57.5 Peter: On next week's episode of 5-4. Follow us on social media at @fivefourpod. Head on over to fivefourpod.com/support if you want to subscribe on any platform and get premium episodes, ad-free episodes, access to special events in our Slack. All sorts of shit. We'll see you next week.

0:52:19.1 Rhiannon: Bye.

0:52:20.4 Michael: Bye.

0:52:21.6 Andrew Parsons: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Nafak and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks @chipsny. And our theme song is by Spatial Relations.

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