ATF fictional sting operations

Between 2011 and 2014, the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), part of the Department of Justice, engaged in a campaign of fabricated sting operations in which individuals were enticed to participate in gun and drug related crimes against entirely fictitious stash house targets for which they were then arrested and convicted. The "made up" crimes were in fact entirely the creation of ATF, and as described by two Federal judges, carried severe sentences (typically 15 years) but were likely to cause grave unfairness and miscarriage of justice.

A U.S.A. Today investigation in 2013 showed that over 1000 individuals have been incarcerated for lengthy periods since 2011 for such "fake" crimes, and that the strategy has become a "key part" of the Bureau's strategy. ATF officials stated that the strategy pre-emptively targeted people likely to commit serious crime rather than waiting for them to do so; opponents and critics, and later, judges, expressed concerns that it was tantamount to entrapment and punishing people for thoughts and possibilities rather than actual criminal acts, by presenting them with deliberately hard to resist fabricated inducements and goading them to become a participant, or to engage in more extreme criminal activities, up to an extent chosen almost completely by ATF.

In 2013 Illinois Chief Federal Judge Ruben Castillo expressed significant concerns over one such case (Brown et al). In 2014 California judge Otis Wright went further and dismissed another such case (Hudson) as "outrageous" government conduct and "unconstitutional", stating that it had neither prevented nor detected crime, but cost the taxpayer dearly, and that the overwhelming extent of ATF direction of the purported crime, and the level of ATF involvement, made the ATF operative more of a participant rather than an observer, the sentence a reflection of ATF whim rather than defendant's own conduct, and the case into one that lacked due process.

U.S. v. Hudson, Whitfield & Dunlap (decided 2014)

The case was one of many US Government cases where a situation was presented to members of the public, who were tempted into committing a crime related to drugs, theft, or firearms, on the basis of a fabricated situation "sting operation". In this case, the judge Otis D. Wright II dismissed citing "outrageous" behavior. He found that by fabricating every aspect of the supposed circumstances in a manner calculated to entice the subjects' involvement, the government acted "repugnant[ly] to the Constitution" by creating a crime "cut from whole cloth" that was intended not to fail to entice involvement, and was not related to any actual or existent criminal enterprise, but was calculated to produce a sentence of around 15 years:

"[C]ontrary to the Government’s contention, Dunlap’s “admissions” only served to demonstrate that he had no propensity to commit drug crimes—the entire subject of the reverse sting ... Allowing after-the-fact knowledge to mitigate the Court’s concerns in a situation like this also creates a perverse incentive for the Government. It encourages the Government to cast a wide net, trawling for crooks in seedy, poverty-ridden areas—all without an iota of suspicion that any particular person has committed similar conduct in the past. And if the Government happens to get it right and catch someone who previously engaged in crime, the courts will place their imprimatur on the whole fishing expedition ... The undercover agent invented [almost everything]... Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash.... the ATF manufactured this entire crime. It did not infiltrate an ongoing criminal enterprise." "The undercover agent’s continued participation, assurances, and suggestions... made him "a partner in the criminal activity" rather than a mere "observer"... but for Thompson’s imagination, there would have been no fictitious stash-house robbery to begin with— let alone the need for guns and extra associates... Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim... Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands... [S]ince the Government created each necessity and justification, the sentence no longer bears a proportional relationship to the defendant’s culpability—just the Government’s imagination. Something more than mere bootstrapping is needed for the Government to take 15-plus years away from Dunlap’s life." "[T]he problem with creating crime [is that]: the Government is not making the country any safer or reducing the actual flow of drugs. But for the Government’s action, the fake stash house would still be fake, the nonexistent drugs would still be nonexistent, and the fictional armed guards would still be fictional... These fake robberies... cost federal taxpayers approximately $433,401 per defendant in incarceration costs alone." "The time has come to remind the Executive Branch that the Constitution charges it with law enforcement—not crime creation. A reverse-sting operation like this one transcends the bounds of due process and makes the Government “the oppressor of its people.” .... [T]he Constitution will not tolerate subjecting an individual to prosecution for an imaginary crime [carrying] a punishment which rests entirely on ATF agents’ whims."

US entrapment case law

Main articles: Entrapment, Sting operation, and Category:United States entrapment case law

• In Jacobson v. United States (503 U.S. 540 (1990)) the Supreme Court considered an entrapment case from outside drug enforcement, and overturned the conviction of a Nebraska man for ordering child pornography after two years of being cajoled by material created by postal inspectors. Held: the government must show that predisposition existed before the government became involved, and prior behavior when activity was legal does not constitute evidence of predisposition to break the law if the conduct is subsequently made illegal. (Contrast Hampton v. United States, where predisposition did exist, even though the drugs and drug related activity of the defendant in that case wholly coincided with the encouragement of law enforcement agents.)

See also

• Precrime - criminal justice system approaches to crimes not yet committed
• Solicitation#United States
• Intention (criminal law)