Undercover work by law enforcement officials

Extracted Content from Question Files:

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8

g

Ethics and Law
Enforcement Practices

Noble-Cause Corruption

Investigation

The Use of Undercover Officers
The Use of Informants
Justifications for Undercover

Operations

Interrogation

Management Issues

Change Efforts
Ethical Leadership

noble-cause corruption
informants
principle of double effect
Dirty Harry problem

Different Question/Different
Answers?
Conclusion
Review Questions
Ethical Dilemmas
Suggested Readings

Key Terms

integrity testing
internal affairs model
civilian review model
rights-based model

196
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Chapter Objectives

¦
Understand the ethical issues involved in investigation practices, such
as the use of undercover officers, informants, and other types of
deception.
¦
Understand the ethical issues involved in interrogation. Distinguish
between physical and mental coercion and understand the arguments
for and against these methods of interrogation.
¦
Understand the methods employed to reduce or minimize corruption
among police officers, and the importance of ethical leadership.
¦
Be aware of the current challenges to law enforcement and be able to
articulate any new answers to old questions about the use of deception
or other means of investigation.
T
T
he last chapter discussed a range of corrupt practices by some law
enforcement officers. It is important to note that only a small percentage
of officers in most police departments ever engage in any of
the practices we discussed, except, perhaps the acceptance of gratuities. In
this chapter, we discuss more common practices of law enforcement, specifically,
those activities engaged in during investigation and interrogation of
crimes. The central question of this chapter is, “How far should law
enforcement officers go to catch a criminal?” The answer will depend on
whether you subscribe to a crime control or a public servant model of law
enforcement, and whether you subscribe to a utilitarian or an ethical formalism
ethical system.

NOBLE-CAUSE CORRUPTION

In 1983, Klockars presented us with the question of whether one could still be
a good person if bad means were used to arrive at a good end. In the Dirty
Harry problem, he asked whether it was ethically acceptable for a police officer
to inflict pain on a suspect in order to acquire information that would save an
innocent victim (with due credit to Clint Eastwood).We will explore that question
more carefully in the interrogation section later, but use it now to begin
our discussion of what has been termed noble-cause corruption. The argument
of those who discuss noble-cause corruption is that officers sometimes
(maybe even frequently) employ unethical means to catch criminals because
they believe it is right to do so.This is an example of the utilitarian viewpoint—
“the ends justify the means.”

Crank and Caldero (2000), for instance, argue that such practices as testilying
and coercion are not caused by selfishness but by ends-oriented thinking.
The noble cause of police officers is “a profound moral commitment to
make the world a safer place to live” (2000: 9). Officers will do what it takes
to get an offender off the street, even if it is a “magic pencil” (2000: 71)—
meaning making up facts on affidavits to justify illegal searches or to
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establish probable cause for arrests. They behave this way because we hire
those who have values that support such actions and train and socialize them
to internalize these values even more deeply, and then put them in situations
where their values dictate doing whatever it takes to “make the world safe”
(2000: 88).

Further, police are not the only actors who subscribe to noble-cause values.
Crime lab investigators and prosecutors also engage in short cuts and
magic pencils in order to convict the perceived guilty. Prosecutors have been
known to suppress evidence and allow perjured testimony, so it is not only
police officers who feel compelled to break the law in order to further the
noble cause of crime control (Crank and Caldero, 2000: 134).

How pervasive is this tendency? Studies show that about 60 percent of
rookies support mild lies to achieve a conviction (Crank and Caldero, 2000:
157). Recall that Barker and Carter (1996) reported that officers surveyed
reported that about a quarter of officers perjured themselves. Dropsy testimony
occurs when officers report that a drug suspect dropped the drugs and ran.This
is convenient because it puts the drugs in plain sight and justifies the subsequent
arrest.The trouble is that dropsy testimony rose exponentially after the
Supreme Court ruled that street pat-downs for evidence required probable
cause. In reality, we simply do not know the extent of the type and pervasiveness
of noble-cause actions.

Other authors argue vehemently that noble-cause corruption is a dangerous
concept because it gives credence to illegal behavior on the part of officers.
Alderson (1998: 68), for instance, protests that:

noble-cause corruption . . . is a euphemism for perjury, which is a

serious crime.... In ethical police terms justice is not divisible in this

way into means and ends, and the peddlers of this perversion of justice

are guilty of the immorality of the totalitarian police state, and their

views stand to be roundly condemned.

However, it may be that he misunderstands those who present the noble-cause
concepts. Crank and Caldero (2000), for instance, seem to be saying that noble
cause is the underlying rationale of much of officers’ unethical behaviors, and,
therefore, efforts to control corruption must take cognizance of this reason in
order to be effective. If selfishness and personal gain are not the motives for
misdeeds, then monitoring and punishments may not work. The culture of
police is not supportive of egoistic criminality, but it is supportive of “catching
the criminal—whatever it takes.” If we want to change this attitude, then we
need to address it directly.

Further, they seem to argue that such an attitude must change because we
are increasingly living in a world where pluralism is the reality and the values
of the police organization may not be reflective of the citizenry they police.
We will return to this concept in the final section of this chapter, but first, the
following sections explore some of the law enforcement practices utilized to
investigate and prosecute criminals.
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INVESTIGATION

The goal of investigative law enforcement is to collect evidence in order to
identify and successfully prosecute the criminal. There are different issues
involved in reactive investigations versus proactive investigations. In reactive
investigations, a crime has already occurred and the police sift through clues to
determine the perpetrator. When police and other investigators develop an
early prejudice concerning who they believe is the guilty party, evidence is
looked at less objectively, and there is a temptation to engage in noble-cause
corruption in order to convict.

One example of this was the scandal concerning the FBI crime lab. Several
news reports reported charges that FBI lab examiners had compromised cases
by completing shoddy work and misrepresenting their findings.The description
of the motivation of examiners was that they were not objective scientists,
but rather co-conspirators with police, who were motivated and even pressured
to find support for police theories regarding the guilty party.This led to overstating
their findings on the witness stand and covering up tests that were done
improperly.A whistleblower exposed these practices and was suspended for his
efforts (Sniffen, 1997). Ultimately, thirteen examiners were implicated,
although only two were even formally censured (Serrano and Ostrow, 2000).
See the accompanying box.

Recently criticism has been leveled at the Justice Department which
responded to the scandal by directing prosecutors to go through their cases
to examine whether any were jeopardized by examiner wrongdoing. Prosecutors,
it is argued, are not the most objective actors to make this determination
since it is not in their best interest to find such cases. The result has
been that even though prosecutors are supposed to share exculpatory evidence
with defense attorneys, in many cases, the defense was not told of the
potential problems with the FBI lab findings. Several defendants have sued to
overturn their convictions (Serrano and Ostrow, 2000). Recently the Houston
crime lab has been the target of investigation. Shoddy lab practices and
possible perjury by examiners has forced the District Attorney’s office to reexamine
over one hundred cases. Similar charges have been leveled at the
FortWorth crime lab (Axtman,2003).See the accompanying box,“FBI Suspends
Agent Whose Charges Led to Critical Report.”

In proactive police investigations, there is a more active role on the part of
police. Drug distribution networks, pornography rings, and fences of stolen
property all tend to be investigated through methods that involve undercover
work and informants.This is because such crimes often do not result in victims
coming forward or crimes being reported. It may be that deception is a
necessary element in this type of investigation.

According to one author, “Deception is considered by police—and courts
as well—to be as natural to detecting as pouncing is to a cat” (Skolnick, 1982:
40). Offenses involving drugs, vice, and stolen property are covert activities that
are not easily detected. Klockars (1984) discusses “blue lies and police placebos.”
In his description of the types of lies police routinely use he differentiates
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CHAPTER EIGHT

FBI Suspends Agent Whose Charges Led to Critical Report
A newpaper article covered the story of the FBI suspending a scientist agent
whose charges led to a still-secret Justice Department report critical of some
FBI crime lab workers. A Republican senator was quoted as saying, “[the
suspension] appears to be a reprisal.” Several others were transferred out
of the FBI also took action regarding other employees criticized in the secret
report, said officials who spoke on condition of anonymity. Three or four
employees were transferred out of the FBI lab, but not suspended. Evidently,
the inspector general hired a panel of outside scientists to evaluate the work
the lab after Whitehurst alleged in late 1995 that the lab mishandled evidence
and testified with “a pro-prosecution bias.” He alleged that misconduct may
have trained crime lab work or testimony on several high profile federal cases.
SOURCE: M.Sniffen, Austin American-Statesman (Jan. 28, 1997): A5.

“placebos” as being in the best interest of those being lied to—for example,
lying to the mentally ill that police will take care of laser beams from Mars, lying
to people that police will keep an eye out for them, or not telling a person how
a loved one was killed.The motive is benign, the effect relatively harmless. Blue
lies are those used to control the person or make the job easier in situations
where force could be used—for example, to make an arrest easier, an officer will
lie about where the suspect is being taken, or to get someone out of a bar, the
officer will say that she only wants to talk.

Barker and Carter (1994) also propose a typology of lies, including
accepted lies, tolerated lies, and deviant lies. Accepted lies are those used during
undercover investigations, sting operations, and so on.These lies must meet
the following standards:

¦
They must be in furtherance of a legitimate organizational purpose.
¦
There must be a clear relationship between the need to deceive and the
accomplishment of an organizational purpose.
¦
The nature of the deception must be one wherein officers and the
management structure acknowledge that deception will better serve the
public interest than the truth.
¦
The ethical standing of the deception and the issues of law appear to be
collateral concerns.
Tolerated lies, according to Barker and Carter, are those that are “necessary
evils,” such as lying about selective enforcement. Police may routinely profess to
enforce certain laws (such as prostitution) while, in reality, use a selective manner
of enforcement. Lies during interrogation or threats to troublemakers that they
will be arrested if they don’t cease their troublemaking are also tolerated lies.

Deviant lies are those used in the courtroom to make a case or to cover up
wrongdoing. One might argue with Barker and Carter, however, that there is
some evidence to indicate that for some police organizations or certain isolated
examples of rogue divisions, lies to make a case are so prevalent that they must
be categorized as tolerated lies rather than deviant lies.
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Investigations often involve the use of informants, decoys, and undercover
officers. One possible result of these procedures is entrapment. In legal terms,
entrapment occurs when an otherwise innocent person commits an illegal act
because of police encouragement or enticement. Two approaches have been
used to determine whether entrapment has occurred.The subjective approach
looks at the defendant’s background, character, and predisposition toward
crime. The objective approach examines the government’s participation and
whether it has exceeded accepted legal standards. For instance, if the state provided
an “essential element” that made the crime possible, or if there was
extensive and coercive pressure on the defendant to engage in the actions, then
a court might rule that entrapment had occurred (Kamisar, LeFave, and Israel,
1980: 510). See “A Case of Entrapment?”

Stitt and James (1985) criticize the subjective test: it allows the police to
entrap people with criminal records who might not otherwise have been
tempted; it allows hearsay and rumor to establish predisposition; it forces the
individual charged to admit factual guilt, which may stigmatize him or her; it
provides a free rein for police discretion in choice of targets; and it degrades
the criminal justice system by allowing the police to use misrepresentation and
deceit. On the other hand, supporters say that the subjective test allows police
to go after those most likely to harm society.The objective test would punish
the police and let the criminal go free, forcing police to perjure themselves to
save a case (Stitt and James, 1985: 133–136).

Legal standards, as we have discussed earlier, are very often useful guidelines
for determining ethical standards, but not always. For instance, one might disagree
with legal standards as being too restrictive if one believed that police
should be able to do anything necessary to trap criminals. Alternatively, legal
guidelines may not be sufficient to eliminate what some consider unethical
behavior. For example, do you agree that an undercover officer should pose as
a client in a methadone clinic and pretend to befriend other clients, then ask

A Case of Entrapment?
When police raided an X-rated mail-order house, they found Keith Jacobsen’s
name and address, as well as the information that he had ordered two
magazines: Bare Boys I and Bare Boys II, neither of which had been determined
to be obscene material by any court. They created a fictitious company called
“The American Hedonist Society” and sent Jacobson a membership application
and questionnaire. He joined and indicated an interest in preteen sexual
material. In other mailings over the course of three years, the government
represented itself as “Midlands Data Research,” “Hartland Institute for a New
Tomorrow,” and Carl Long, an individual interested in erotic material. Finally, a
mailing from the government posing as the “Far Eastern Trading Company,
Ltd.” resulted in an order from Jacobson for Boys Who Love. He was arrested
by federal agents after he accepted receipt.
SOURCE: Adapted from G. Dix, “When Government Deception Goes Too Far,” Texas Lawyer 7
(31)
(1991): 12–13.
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them to “hook him up” with a drug dealer? If they do it, they will be guilty of
a crime.What if the undercover officer targeted someone for eleven months,
continually begging and pleading with the target to sell him drugs, until finally,
simply to get rid of him, the target did so and was promptly arrested? Does this
violate the subjective test of entrapment? (Remember that a methadone client
would be considered predisposed to drug crimes.) Is it ethical?

One might look at the methods police use for selecting an individual target.
Earlier we discussed discretion in police work. Selection of targets on any
other basis than reasonable suspicion is a questionable use of discretion. Members
of Congress convicted of bribery in the Abscam operation in 1980 alleged
improper conduct in the FBI’s selection of targets; and, Marian Barry, the ex-
Mayor of the District of Columbia, alleged he was “set up” because of his race
after he was videotaped using drugs with a girlfriend in a hotel room in 1990.
How targets are selected is a serious question; arguably, the selection should be
based on reasonable suspicion. However, Sherman (1985b) reports that “tips”
are notoriously inaccurate as a reason to focus on a certain person.

Police operations that provide opportunities for crime change the police
role from discovering who has committed a crime to one of discovering who
might commit a crime if given a chance (Elliston and Feldberg, 1985: 137). For
instance, a fake deer placed by the side of the road is used to entice overeager
hunters, who are then arrested for violating hunting laws. Police officer decoys
are dressed as drunks and pretend to pass out on sidewalks with money sticking
out of their pocket. Undercover officers, posing as criminals, entice doctors
to prescribe unneeded medications that are controlled substances, such as Per-
coset and Oxycontin. Are only bad people tempted? This role expansion is
arguably dangerous, undesirable, and inconsistent with the social contract basis
of policing.

Police also undertake various stings in which they set up fencing operations
to buy stolen goods.This action has been criticized as contributing to burglary.
The opposing argument is that burglaries would occur regardless and that the
good of catching criminals outweighs the negative possibility that burglars steal
because they know the fence (police) will take their goods. Both of these arguments
exist under a utilitarian framework. So even when using the same ethical
system, a particular action may be supported as ethical or unethical. Other
stings are even more creative, such as sending party invitations to those with
outstanding warrants, or staging a murder and then arresting those (with outstanding
warrants) who come out to see what is happening.The utility of such
stings is undeniable.The only argument against them is that the government
deception appears unseemly; it is also possible that such actions may undermine
public confidence in the police when they are telling the truth.

Journalists who unwittingly assist police by believing and publishing a
false story also criticize this type of deception.There are a number of ethical
issues in the relationship between the police and the media. Should the
police intentionally lie to the media for a valuable end? An example might
be lying about the stage of an investigation or about the travel path of a public
figure for security reasons. In the 2002 Washington, D.C.,sniper case, the
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media and the police had an extremely close relationship and the police were
especially sensitive to media issues (i.e., how the media could be used to
encourage tips), but also how it might create public panic.There were some
who believed the media were fed “red herrings,” such as the importance of
the white van, in order to divert the snipers’ suspicions regarding how the
police investigation was going.

Should the media have complete power to publish or report crime activities
regardless of the negative effect on the level of public fear or the possibility
of receiving an unbiased trial? Should the media become so involved in
hostage situations that they become the news rather than just the reporters of
it? The situation involving David Koresh and his cult of Branch Davidians in
Waco,Texas, in the spring of 1993 raised a number of questions concerning the
relationship between the police and the media. For instance, the media were
banished to a distance far away from the cult compound. Is this an acceptable
use of police power, or does it infringe on the public’s right to know? Could
police have ethically used the media to deceive Koresh into giving up by feeding
the media false information in response to his stated wish for a sign? Should
the media have been better informed during the course of the final assault?

These questions can all be analyzed using the ethical systems already
described. Regarding the bombing at the 1996 Summer Olympics in Atlanta,
should the FBI have disclosed to the public that Richard Jewell was its prime
suspect and given the press background information that led to the massive
publicity and exposure of his life? The FBI’s statements indicated a level of certainty
regarding his guilt that turned out to be unsubstantiated. Jewell’s experience
resulted in a public letter of apology from the FBI and a lawsuit against
the FBI and the television networks and the newspapers that violated his privacy,
illustrating one reason that law enforcement might not want to be so
forthcoming on the progress of investigations (FBI, 1996).

The Use of Undercover Officers

Undercover officers may play drug dealers, prostitutes, johns, crime bosses,
friends, and, perhaps, lovers in order to collect evidence of crime.They have to
observe or even participate in illegal activities to protect their cover. Undercover
work is said to be a difficult role for the individual officer, who may play
the part so well that he or she loses his or her previous identity. If the cover
involves illegal or immoral action, the individual may have to sacrifice personal
integrity to get an arrest. Marx cites examples of officers who have become
addicted to drugs or alcohol and destroyed their marriages or careers because
of undercover assignments (1985a: 109).

Kim Wozencraft (1990), an ex-undercover narcotics officer, has written a
novel in which two undercover officers use drugs and become friends with
some of the pushers they are collecting evidence against, and although officials
in the federal Drug Enforcement Agency (DEA), as well as local law enforcement,
know that undercover officers sometimes use and even become addicted
to drugs during the course of an investigation, they ignore or cover up such
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behavior in order to get successful convictions. Although the work is fiction,
one suspects that at least some of the experiences that Wozencraft portrays are
taken from reality.

Policemen routinely pretend they are johns, and policewomen dress up as
prostitutes.Those community members who live in neighborhoods plagued with
street prostitution may applaud any police efforts to clean up their streets. But do
we want our police officers to engage in this type of activity? One important element
of this debate is the type of relationship involved in the police deception.
The two extremes of intimacy are, on one hand, a brief buy–bust incident where
the officer pretends to be a drug pusher and buys from a street dealer, and
moments later an arrest is effected.At the other extreme would be a situation in
which an undercover officer pretends to be romantically involved with a target
of an investigation to maintain his or her cover.The second situation violates our
sense of privacy to a much greater degree, yet there have been instances of detectives
engaging in such relationships to gain confessions or other information.

In one particular case, a private detective (not a police detective) engaged
in this type of relationship over a period of months and even agreed to an
engagement of marriage with the suspect in order to get a confession on tape
(Schoeman, 1986: 21). In another case, an officer acted as a friend to a target
of an investigation, to the extent of looking after his child and living in his
house for six months.The purpose of the investigation was to get any evidence
on the man so that the topless bar he owned could be shut down. Eventually,
the officer found some white powder on a desk in the home that tested positive
for cocaine, and a conviction was secured. The Supreme Court denied a
writ of certiorari in this case (United States v. Baldwin, 621 F.2d 251 [1980]).
Many people do not see anything wrong with deceiving the criminal who is
ultimately convicted, but what about others involved? In the above case, what
does one say to the child who found out a trusted friend had been living a lie?

One of the reasons that some disagree with deceptive practices involving
personal relationships is that they betray trust, an essential element of social life.
As Schoeman (1985: 144) explains, intimate relationships are different from
public exchanges and should be protected:

Intimacy involves bringing another person within one’s soul or being, not

for any independently personal or instrumental objective, but for the sake of

the other person or for the sake of the bond and attachment between the

persons. ... There is an expression of vulnerability and unenforceable

trust within intimate relationships not present in business or social

relationships. ... Exploitation of trust and intimacy is also degrading

to all persons who have respect for intimate relationships. Intimate

relationships involve potential transformations of moral duties. Morally,

an intimate relationship may take precedence over a concern for social
well-being generally.

Note that he is probably arguing from an ethics of care position. In this ethical
system, the relationship of two people is more important than rights, duties,
or laws.There is no forfeiture of rights in the ethics of care positions; thus, one
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can’t say the suspect deserves to be deceived.The harm to the relationship goes
in both directions. In cases where a personal relationship has developed, if the
target is hurt by the deception, so too is the deceiver.

Schoeman goes on to suggest some guidelines to be used when police
interact with others in a deceptive manner. First, he believes that no interaction
should go on longer than twenty-four hours without a warrant with
probable cause. During this twenty-four-hour period, the officer may not enter
any private area, even if invited, unless it is specifically to undertake some illegal
activity. Second, although an undercover officer may engage in business and
social relationships deceptively during the course of an investigation, he or she
may not engage in intimate relationships. Finally, any evidence obtained in violation
of the first two principles should be excluded from criminal trials against
the targets (1985: 140).

Police would obviously criticize these suggestions. First, if there is probable
cause, an arrest is possible, so why engage in a dangerous undercover operation?
Second, almost all undercover operations last more than twenty-four hours.
Finally, requiring a warrant is often unworkable, given how undercover operations
develop.The question remains: How can police best minimize the harm
yet still obtain some utility from the action? This balancing is characteristic of
utilitarian ethics.

Do police engage in investigative deception because it is the best way to
investigate drug sales, prostitution, organized crime, or illegal alien smuggling;
or is it simply the easiest way? Is it necessary in undercover work, especially in
the area of vice, to employ deception and techniques that might be considered
entrapment? If the goal of police is crime control, then there is a clear inclination
to use utilitarian rationales to justify deception as a means to an end. If the
goal of police is public service, such activities are arguably harder to justify.

Marx (1985a: 106–107) proposes that before engaging in undercover operations,
police investigators should ask the following questions:

1.
How serious is the crime being investigated?
2.
How clear is the definition of the crime—that is, would the target know
that what he or she is doing is clearly illegal?
3.
Are there any alternatives to deceptive practices?
4.
Is the undercover operation consistent with the spirit as well as the letter
of the law?
5.
Is it public knowledge that the police may engage in such practices, and is
the decision to do so, a result of democratic decision making?
6.
Is the goal prosecution, as opposed to general intelligence gathering or
harassment?
7.
Is there a likelihood that the crime would occur regardless of the
government’s involvement?
8.
Are there reasonable grounds to suspect the target?
9.
Will the practice prevent a serious crime from occurring?
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The Use of Informants

Informants are individuals who are not police officers, but that assist police
by providing information about criminal activity, acting as the part of buyer in
drug sales, or otherwise “setting up” a criminal act so that police may gather
evidence against the target. Informants perform such services for some
reward—either money, or to get charges dropped or reduced, or in some documented
case, for drugs supplied by an officer.They may do it for retaliatory
purposes. Informants typically are not middle-class, upstanding-citizen types.
They have or are probably engaged in criminal activities themselves. Police use
informants who often continue to commit crime while helping police. The
following describes an informant who had police protection withdrawn
(Scheingold, 1984: 122):

The problem is that by the time Detective Tumulty decided to bury

Carranza, the informant had already committed, by his own count, two

hundred crimes, and he had confessed over one hundred of them to the

police. It is not surprising that business persons victimized by Carranza

were not particularly pleased when they learned the police had failed to

prosecute him.

More recently, it has come to light that the F.B.I. has protected informers
even after they have committed murders. John Connolly, an FBI agent, was
convicted of obstruction of justice and is now serving a ten year prison sentence
for protecting two organized crime figures, now implicated in eighteen
murders, during the time they worked for the FBI. Other agents have admitted
that they “bend the rules” in order to keep information sources. Critics
argue that FBI agents should not make decisions regarding which crimes are
more or less important:“Is a federal official entitled to make that decision-that
one person’s life is more valuable than another’s?”(Donn, 2003:A16).

The federal witness protection plan has provided new identities for some
witnesses after they have accumulated bad debts or otherwise victimized an
unwary public.The rationale for informant protection is that greater benefit is
derived from using them to catch other criminals than their punishment would
bring.This also extends to overlooking any minor crime that they engage in
during the period of time they provide information, or afterward if that is part
of the deal (Marx, 1985a: 109).However, the ethical soundness of this judgment
may be seriously questioned.

Police use informants partly to avoid problems that undercover police officers
would encounter if they attempted to accomplish the task, but also
because informants are under fewer restrictions.As Marx reports,

Informers and, to an even greater extent, middlemen, are much less

formally accountable than are sworn law officers and are not as

constrained by legal or departmental restrictions.As an experienced
undercover agent candidly put it,“unwitting informers are desirable

precisely because they can do what we can’t—legally entrap.”
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An incident in Houston where an informant was killed in a drug buy
brought to light the many ethical issues raised by using informants.This individual
came to the police to help them identify pushers. He was married and
had small children. He engaged in drug deals, and after they occurred, the
police would arrest the drug sellers. In one such incident, the informant was in
a motel room with the pushers and was evidently identified as an informant
and killed before police could enter the room.The informant was not wearing
a wire, and he had no weapon or means of protecting himself. Unlike the families
of undercover police officers killed in the line of duty, his family is without
benefits of compensation for his death (Houston Post, Jan. 24, 1993: A20).
Some observers question the use of civilians in such dangerous operations. One
might, however, point out the fact that this informant freely volunteered his
services, unlike some informants, who are threatened with prosecution if they
do not cooperate.

Another problem with informants is that sometimes their reliability is
highly questionable. Their rewards, whatever those might be, are contingent
upon delivering some evidence of crime to law enforcement. In some cases,
this evidence may be purely manufactured. In Dallas, an informant was used to
buy drugs from suspected drug dealers, who were then arrested and convicted
using his testimony.When the supposed cocaine that he allegedly bought from
those arrested was tested, it turned out to be powdered plasterboard. In fact, in
several cases of the same informant, there were no drugs. Defendants, in the
meantime, had spent months in jail protesting their innocence before charges
were dropped. It was concluded by police and prosecutors that this informant
had planted the cocaine substitute on innocent men with no relationship to
drugs.Why? He had been paid $200,000 since 2000 for helping Dallas police
make drug arrests (Curry, 2002).

Sometimes officers are tempted to manufacture informants.When writing
affidavits for search warrants, officers may utilize information supplied by a
“confidential informant” without having to name the informant. All the officer
need do is state that the informant has given good information in the past
and that it would be dangerous to reveal his or her identity. This boilerplate
language is routinely accepted and so information is used to establish probable
cause that cannot be verified or challenged. Sutton (1991) argues that some
officers are tempted to use imaginary confidential informants to allow the use
of otherwise illegally obtained or simply manufactured evidence. Barker and
Carter (1999) report on a tragic case of this occurring in which an officer
made up evidence from a so-called informant in order to get a search warrant.
In the search, an officer was killed and the lie was exposed.

Some officers openly admit that they could not do their job without
informants. There are other arguments, however, that the perceived value of
informants is overstated. In a British study, the Home Office concluded that
informants were cost effective. However, other analysts argued that the study
did not factor in other issues, such as tolerating continued crime (by informants),
and informants who create crime in order to report it (Dunningham and
Norris, 1999).
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Some develop close working relationships with informants, while others
maintain that you can’t trust them no matter how long you’ve known them.
There are disturbing questions one might ask about using private citizens to
engage in dangerous operations. It may be true that narcotics investigations
are difficult, if not impossible, without the use of informants. If so, then
guidelines and standards are needed to govern the use of informants. The
Commission on Accreditation for Law Enforcement Agencies [CALEA] has
developed such standards.

Justifications for Undercover Operations

There are arguments both for and against the use of undercover operations and
informants (see box on page 210). Marx (1985b; 1991) argues that they might
actually create more crime.They also may lead to unintended crime and danger.
For instance, he mentioned situations where decoys have been attacked, undercover
officers have been robbed,undercover officers have been killed by other officers
who mistook them for criminals, and policewomen acting as prostitutes have
been attacked.The use of informants sometimes leads to retaliatory assaults against
them.There have even been scenarios where agents from one law enforcement
agency pretended to buy drugs from drug dealers who turned out to also be
undercover police from another agency (Marx,1991).Although rare,one wonders
how many resources have been expended for these futile charades. Undercover
operations have been criticized for the following reasons (Marx, 1992: 117–118):

1.
They may generate a market for the purchase or sale of illegal goods
and services.
2.
They may generate the idea for the crime.
3.
They may generate the motive.
4.
They may provide a missing resource.
5.
They may entail coercion or intimidation of a person otherwise not
predisposed to commit the offense.
6.
They may generate a covert opportunity structure for illegal actions on
the part of the undercover agent or informant.
7.
They may lead to retaliatory violence against informers.
8.
They may stimulate a variety of crimes on the part of those who are not
targets of the undercover operation (for example, impersonation of a
police officer, crimes committed against undercover officers).
Ethical systems may or may not support undercover operations. The
principle of double effect holds that when one does an action to achieve
a good end and an inevitable but unintended effect is negative, then the
action might be justified. We might justify police action in this way if the
unethical consequence, such as the deception of an innocent, was not the
intended consequence of the action and the goal was an ethical one. However,
deceiving the suspect could not be justified under the principle of
double effect because that is an intended effect, not an unintended effect.
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QUOTE

They were just looking at me. I couldn’t even look these guys in the eyes.
Here’s guys I hung out with, guys I broke bread with. I really came to like some
of them. And they liked me, trusted me. One guy comes up to me and says,
“How could you do this, Ben? You’re my friend. How could you do this?” He
was sixty some years old. He was like anybody’s grandfather, a nice guy, but he
dealt in stolen securities. That’s what we locked him up for. He put a heavy
guilt trip on me. I couldn’t look at him. I had to put my head down. . . .
Undercover is a very strange way to do police work, because you identify with
them, the bad guys. It’s a strange feeling to be trusted by someone and then
betray them.

Mark Baker, Cops (New York: Pocket Books, 1985): 139–140. Reprinted with the permission of
Simon &
Schuster from Cops: Their Lives in Their Own Words by Mark Baker. Copyright © 1985 by Mark
Baker.

Religious ethics would probably condemn many kinds of police actions
because of the deceptions involved. Ethical formalism would probably also condemn
such actions because one could not justify them under the categorical
imperative. Further, innocent family members being used as a means to a conviction
of an offender would also violate the categorical imperative. Utilitarian
ethics would justify police deception and deceptive techniques if one could
make the argument that catching criminals provides greater benefit to society
than allowing them to go free by refusing to engage in such practices.Act utilitarianism
would probably support deceptive practices, but rule utilitarianism
might not, because the actions, although beneficial under certain circumstances,
might in the long run undermine and threaten our system of law. Finally, egoism
might or might not justify such actions depending on the particular officer
involved and what his or her maximum gain and loss was determined to be.

Under act utilitarianism, one would measure the harm of the criminal
activity against the methods used to control it. Deceptive practices, then, might
be justified in the case of drug offenses but not for business misdeeds or for
finding a murderer but not for trapping a prostitute, and so on.The difficulty
of this line of reasoning, of course, is agreeing on a standard of seriousness. I
might decide that drugs are serious enough to justify otherwise unethical practices,
but you might not. Pornography and prostitution may be serious enough
to some to justify unethical practices, but to others only murder or violent
crime would justify the practices.

Cohen (1991) proposes a test to determine the ethical justification for
police practices. His focus is the use of coercive power to stop and search, but
we might apply the same test to analyze undercover or other deceptive practices.
First, the end must be justified as a good—for instance, conviction of a
serious criminal rather than general intelligence gathering. Second, the means
must be a plausible way to achieve the end—for example, choosing a target
with no reasonable suspicion is not a plausible way to reduce any type of
crime. Third, there must be no better alternative means to achieve the same
end: no less-intrusive means or methods of collecting evidence exist. Finally,
ETHICS IN CRIME & JUSTICE Copyright 2005 Thomson / Wadsworth
Justifications for and Arguments Against Undercover
Work
For: Against:
1. Citizens grant to government the 1. Truth telling is moral; lying is
right to use means which they immoral.
individually forsake.
2. Undercover work is ethical when 2. The government should not
its targets are persons who freely make deals with criminals.
choose to commit crimes which
they know may call forth
deceptive police practices.
3. Undercover work is ethical when 3. The government should neither
used for a good and important participate in, nor be a party to
end. crime, nor break laws in order
to enforce them.
4. Undercover work is ethical when 4. The government through its
there are reasonably specific actions should reduce, not
grounds to suspect that a serious increase crime.
crime is planned or has been
carried out
5. Undercover work is ethical when 5. The government should not
it is directed against persons create an intention to commit a
whom there are reasonable crime which is impossible to
grounds to suspect. carry out.
6. When citizens use questionable 6. The government should
means, government agents are neither tempt the weak, nor
justified in using equivalent offer temptation
means. indiscriminately, nor offer
unrealistically attractive
temptations.
7. Special risks justify special 7. Do no harm to the innocent.
of precautions.
8. Undercover work is ethical when 8. Respect the sanctity of private
it is the best means. places.
9. Enforce the law equally. 9. Respect the sanctity of intimate
relations.
10. Convict the guilty. 10. Respect the right to freedom
expression and action.
11. An investigation should be as 11. The government should not
nonintrusive and noncoercive do by stealth what it is
as possible. prohibited from doing openly.
12. Undercover work is ethical when
it is undertaken with the
intention of eventually being
made public and literally judged
in court.
13. Undercover work is ethical when
it is carried out by persons of
upright character in accountable
organizations.
SOURCE: G. Marx, “Police Undercover Work: Ethical Deception or Deceptive Ethics.” In Police
Ethics: Hard
Choices in Law Enforcement, ed. W. Heffernan and T. Stroup (New York: John Jay Press, 1985).
All rights
reserved. Reprinted by permission.
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the means must not undermine some other equal or greater end; that is, if the
method results in loss of trust or faith in the legal system, it fails the test.

Many people see nothing wrong—certainly nothing illegal—in using any
methods necessary to catch criminals. But we are concerned with methods in
use before individuals are found guilty. Can an innocent person, such as you,
be entrapped into crime? Perhaps not, but are we comfortable in a society
where the person who offers you drugs or sex or a cheap way to hook into
cable turns out to be an undercover police officer? Are we content to assume
that our telephone may be tapped or our best friend could be reporting our
conversations to someone else? When we encounter police behavior in these
areas, very often the practices have been used to catch a person whom we realize,
after the fact, had engaged in wrongdoing, so we feel that police are justified
in performing in slightly unethical ways.What protectors of due process
and critics of police investigation practices help us to remember is that those
practices, if not curbed, may just as easily be used on the innocent as well as on
the guilty.

It is clear that norms support police deception during the investigative
phase. If their norms support deception during investigation, it is not surprising
that some officers may protect themselves with deception when their
methods are legally questioned. In fact, one of the problems with deceptive
practices is that they may lead to more deception to cover up illegal methods.
For instance, Skolnick (1982) argues that weak or nonexistent standards during
the investigation phase of policing lead directly to lying on the witness
stand because that is sometimes the only way an officer can save his or her case.

It is unlikely that these investigative techniques will ever be eliminated; perhaps
they should not be, since they are effective in catching a number of people
who should be punished. Even if one has doubts about the ethics of these
practices, it is entirely possible that there is no other way to accomplish the goal
of crime control. However one decides these difficult questions, there are no
easy answers.Also,it is important to realize that although for us these questions
are academic, for thousands of police officers they are very real.

INTERROGATION

Deception often takes a different form in the interrogation phase of a case.
Several court cases document the use of mental coercion, either through threat
or promise.The use of the father confessor approach (a sympathetic paternal figure
for the defendant to confide to) or Mutt and Jeff partners (a “nice guy” and
a seemingly brutal, threatening officer) are other ways to induce confessions
and/or obtain information (Kamisar, LeFave, and Israel, 1980: 54).

Skolnick and Leo (1992) present a typology of deceptive interrogation techniques.
The following is a brief summary of their descriptions of these practices:

¦
Calling the questioning an interview rather than an interrogation by
questioning in a noncustodial setting and telling the suspect that he is
free to leave, thus eliminating the need for Miranda warnings
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¦
Presenting Miranda warnings in a way designed to negate their effect, by
mumbling or by using a tone suggesting that the offender better not
exercise the rights delineated or that they are unnecessary
¦
Misrepresenting the nature or seriousness of the offense by, for instance,
not telling the suspect that the victim had died
¦
Using manipulative appeals to conscience through role playing or other
means
¦
Misrepresenting the moral seriousness of the offense—for instance, by
pretending that the rape victim “deserved” to be raped to get a confession
¦
Using promises of lesser sentences or nonprosecution beyond the power
of the police to offer
¦
Misrepresenting identity by pretending to be lawyers or priests
¦
Using fabricated evidence such as polygraph results or fingerprint
findings that don’t really exist
Skolnick (1982) writes that because physical means of coercion are no longer
used—the infamous third degree—mental deception is the only means left for
police officers to gain information or confessions from suspects. How does one
get a killer to admit to where she left the murder weapon? If police are imaginative,
they may be able to get the defendant to confess by encouraging her to
think about what would happen if children found the gun. Or police might discover
the location of a body by convincing the killer after he had refused to talk
to police that the victim deserves a Christian burial (see Brewer v.Williams, 430

U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 [1977]). Courts have ruled that police
who use these methods are unconstitutionally infringing on the defendant’s right
to counsel because the conversations, even if not direct questioning, constitute
an interrogation. However, other cases that involve attempts to obtain information
before counsel has been appointed have been approved by the Court.
Whether police have a legal right to deceive a suspect is not the same question
as whether it is ethical, and, if so, what are the limits of such deception?
Skolnick’s argument is that deception is used because physical coercion
cannot be. It is true, of course, that the use of physical force to obtain a conviction
is illegal. Most countries, in fact, have eliminated torture and formally
condemn the practice. Unfortunately, some countries still endorse physical
coercion as acceptable police practice. Amnesty International documents
abuses in Chile, Argentina, and many other countries around the world. It is
important to note that very often in these situations police are used as the
means of control by the dominant political power.Therefore,they operate not
under the law, as the code of ethics dictates, but above the law. Codes of ethics,
adopted by many police departments that have recognized the danger of police
power being misused, are very clear in directing police to abide by the law and
not allow themselves to be used by people or political parties (Bossard, 1981).

This discussion has been renewed, however, because of terrorism and the
Afghanistan military engagement.There have been allegations that the U.S. military
handed over Al Queda captives to countries where torture was legally pos
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sible, and then participated in the interrogations in order to acquire information
about Osama Bin Laden and future operations. If this is true, does the nature of
the threat justify the return to physical coercion? U.S. officials admit to the use
of techniques such as with holding medical attention, deprivation of food and
water, sleep and light deprivation and other means short of physical torture
against A1 Queda leaders (Van Natta, 2003).Are such methods morally justified?

Many would argue that whatever information is gained from an individual
who is physically coerced into confessing or giving information is not worth
the sacrifice of moral standards.The original legal proscriptions against torture,
however, come not from an ethical rationale, but from a legal rationale that torture
makes a confession unreliable.Tortured victims might confess to stop their
suffering; thus, the court would not get truthful information.

Klockars (1983) describes the inevitability of certain unethical or immoral
police behaviors as the Dirty Harry problem, after the movie character who
did not let the law get in his way when pursuing criminals. In Klockars’s view,
using immoral means to reach a desired moral end is an irresolvable problem
because there are situations where one knows the “dirty act” will result in a
good end, there are no other means to achieve the good end, and the “dirty
act” will not be in vain. Klockars’s example of this type of problem, taken from
a movie, is a situation where a captured criminal refuses to tell the location of
a kidnapped victim. Because the victim is sure to die without help, the police
officer (played by Clint Eastwood) tortures the criminal by stepping on his
injured leg until he admits the location.

Obviously, this is an immoral act, but Klockars’s point is that there is no
solution to the situation. If the police officer behaved in a professional manner,
the victim was sure to die; if he behaved in an immoral manner, there was a
chance he could save a life.This is a dominant theme in detective and police
fiction. Klockars’s conclusion is that by engaging in “dirty” means for good
ends, the officer has tainted his innocence and must be punished, because there
is always a danger that dirty means will be redefined by those who use them
as neutral or even good. Police may lose their sense of moral proportion if the
action is not punished, even though the individual police officer involved may
have no other way out of the moral dilemma.

Delattre (1989a) also discusses the use of coercive power. He disagrees with
Klockars that the officer must inevitably be tainted in the Dirty Harry situation.
Delattre points out that if one chooses physical coercion, regardless of temptation,
this leads to perjury and lying about the activity and perhaps other tactics
to ensure that the offender does not go free due to the illegal behavior of the
police officer. However, he also excuses the actions of those who succumb to
temptation in extreme situations and perform an illegal act (Delattre,1986a:211):

Police officials are not tainted by refusing to step onto the slope of illegal

action, neither are officials of demonstrated probity necessarily tainted

by a last-ditch illegal step. Such an act may be unjustifiable by an

unconditional principle, but it also may be excusable.... Still less does

it follow that those who commit such acts are bad, that their character is
besmirched, or that their honor is tainted.
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One might argue that if officers commit an illegal and unethical act, it is
hard for their character not to be affected or their honor tainted.To understand
an action (in this case an act that results from anger or frustration) is
not to excuse it. Delattre presents a virtue-based ethical system and evidently
believes that an officer can have all the virtues of a good officer and
still commit a bad action—in this case, the illegal use of force. His point that
one act of violence does not necessarily mean that the officer is unethical in
other ways is well taken. In fact, we usually reserve the terms ethical and
unethical for actions rather than persons.The reaction of the officer to his or
her mistake is the true test of character. Does the officer cover up and/or
ask his or her partner to cover up the action? Does the officer lie to protect
himself or herself? Or does the officer admit wrongdoing and accept the
consequences?

Klockars’s underlying point is more subtle: We all are guilty in a sense by
expecting certain ones among us to do the dirty work and then condemning
them for their actions. In times of war, and when dealing with other threats, the
populace often wants results without wanting to know tactics.What percentage
of the population cared that the CIA attempted to assassinate Fidel Castro or
that the attorney general’s office during the Kennedy years used questionable
tactics and violated the due process rights of Cosa Nostra members targeted in
the campaign against organized crime? How many of us truly want to know
about the clandestine operations of Special Forces in Afghanistan or Iraq?
Klockars points out the position of those who perform despicable acts that benefit
the rest of us; we are comfortable in our ignorance and comfortable in our
judgments, as long as we don’t have to look too closely at our own role in the
events. Police (and other law enforcement), in effect, become our sin eaters of
early folklore; they are the shady characters on the fringe of society who absorb
evil so that the rest of us may remain pure—shunned and avoided, these persons
and their value are taken for granted.

It is certainly much easier to justify mental coercion than physical coercion
and intimidation, but their justifications are the same—that is, it is an effective
and perhaps necessary means to get needed information from a resisting subject.
The criticism against them is also the same. Mental coercion may also
result in untruths. Recently, several convictions have been overturned because
new evidence proves that those convicted were innocent, yet they confessed.
Why would someone confess to a crime he didn’t commit?

A suspect might confess because he is a fourteen-year-old juvenile who was
mentally overpowered by police using pressure and feeding him information
from the crime. This is alleged to have happened in the Central Park jogger
“wilding” case. In this case, the five Black and Hispanic youths who were convicted
in 1990 of the beating and rape of a female stockbroker may be innocent
after all, since Matias Reyes has confessed, stating that he acted alone in
the crime. D.N.A. evidence supports his contention that he raped the victim
(Tanner, 2002; Getlin, 2002).

Suspects might confess because police use intimidation and fear tactics to
extract a confession.This is allegedly what happened in an Austin case where
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two men were found guilty and sentenced to death for a robbery-murder. One
of them confessed and implicated the other. Now, twelve years later, it appears
that the crime was actually committed by another man who wrote the District
Attorney with his confession. D.N.A. evidence has also confirmed his guilt.The
convicted man who confessed alleges that he did so because the police officer
who interrogated him threatened that if he did not confess, Mexican police
would arrest his mother and they could not guarantee her safety.They told him
he would receive the death penalty if he didn’t confess (Hafetz, 2002).

Although such events sound like something from television drama rather
than reality, they evidently do happen. In Illinois, Governor Ryan eventually
commuted the death sentences of everyone on death row. He did so because
of disgust and suspicion arising from the method of finding those on death
row guilty.Thirteen death penalty cases were overturned when evidence indicated
the convicted might be innocent, or at the very least, did not receive due
process. Five of those thirteen were from Chicago, and evidence indicated that
the convictions were obtained through coerced confessions and manufactured
evidence by the Chicago police investigators (Babwin, 2001).

Muir discusses the necessity for the use of coercion: A good police officer,
he writes,“has to resolve the contradiction of achieving just ends with coercive
means” (Muir, 1977: 3). According to Muir, the successful police officer is able
to balance willingness to use coercion with an understanding of humankind,
which includes such traits as empathy and sympathy toward the weaknesses of
human nature. If officers overemphasize coercion, they become cynical and
brutal; if they overemphasize understanding, they become ineffectual:

Under certain conditions, a youthful policeman was likely to come
upon solutions to the paradoxes of coercive power which enabled
him to accept the use of coercion as legitimate. However, if his solution
to his moral problems required him to blind himself to the tragedy
of the human condition, then he became an enforcer. Under other
circumstances, a young policeman’s choice of responses to paradox left
him in conflict about the morality of coercion.Then he would be
transfixed by feelings of guilt, would tend to evade situations which
aroused those feelings, and would develop a perspective to justify his
evasions.This kind of officer became either a reciprocator or an avoider.
Finally some young officers found ways to exercise coercion legitimately
without having to deny their “common sense of the oneness of the
human condition.”These men became professionals (Muir, 1977: 24).

MANAGEMENT ISSUES

Malloy (1982: 37–40) offers some possible solutions to police corruption:
increase the salary of police, eliminate unenforceable laws, establish civilian
review boards, and improve training. One might add this solution: improve
leadership. Metz (1990) suggests several ways that police administrators can
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encourage ethical conduct among officers. He suggests setting realistic goals
and objectives for the department and providing ethical leadership, a written
code of ethics, a whistleblowing procedure that ensures fair treatment of all
parties, and training in law enforcement ethics. In this last section, we will
explore some of the approaches that have been taken to nurture and encourage
ethical behavior among police officers.

Change Efforts

How does one minimize or eliminate existing corruption in a police department?
Because so much of police work is unpredictable and encounters such
a wide range of situations, it is impossible to fashion rules for all possible occurrences.
What should take the place of extensive rules are strong ethical standards.
However, the internalization of these standards by individual police
officers is at best tenuous; the informal police subculture is the most obvious
threat to the internalization of ethical standards.

However, the particular organizational values do influence the individual
officer. Klockars et al. (2000) used surveys to ask 3,235 officers in thirty U.S.
police agencies to rank the corruptness of eleven hypotheticals. They ranked
some as fairly nonserious: covering up a DUI accident and taking free meals.
Others were ranked as more serious: excessive force, taking free drinks, and
taking kickbacks.The most serious rankings were reserved for stealing from a
found wallet, taking a money bribe, and stealing a watch from a crime scene.
There was quite a degree of variability between agencies.Agencies where officers
had belief systems that ranked all behaviors as more serious also reported
that their agency would inflict harsher discipline on all conduct (Klockars,
2000: 8). One might conclude from this that law enforcement administrators
can affect the value systems of officers through appropriate discipline.

Crank and Caldero (2000: 159; also see Crank, 1998: 230) argue that even
the formal organizational values impose pressures that may lead to noble cause
corruption. Aspirations for promotion, “implicit quotas for arrests, directives
from administrators, self-esteem, [and] moral ideological commitments” all put
pressure on the individual officer to lie or otherwise subvert the formal values
of law enforcement, and lead to violation of suspects’ rights or other unethical
behaviors.

Education and Training Education has been promoted as necessary if police
are to continue to be professional. However, education itself is certainly not a
panacea, and, in fact, some of the officers with the worst examples of unethical
behavior either had college degrees or scored above average on the academic
tests to qualify for hiring. Nevertheless, study results often show that
educated officers have positive qualities. Some of the differences may raise
more questions; for instance, if educated officers are more likely to believe it is
acceptable to ignore the law, does this mean that they are more likely than officers
without college degrees to use arbitrary and discriminatory criteria in
their enforcement? If educated officers believe that officers can depart from
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standard operating procedures, are they harder to supervise and more likely to
substitute individualistic definitions of justice rather than perform a service
function and let the process control the outcome?

Ethics training in the academy, as well as offering in-service courses, is common
and recommended for all police departments today. However, what these
courses might be able to accomplish is questionable. Reuss-Ianni (1983)
describes how, after the Knapp Commission uncover