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A Nice Thought, At Least

When a judge begins a dissent by calling something agents did “a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values,” I expect it is going to be a good read. I also assume the case probably arose in Arizona, where most people seem to think fundamental constitutional values should be limited to an appreciation of the sacred right to have law enforcement make sure nobody but them breaks any laws. With the recent Ninth Circuit case of United States v. Black, I was right on both counts.

The description of what happened from the dissent in Black is pretty much as spot-on as the analysis. As it explains, the government went to a “bad” part of town to find “bad” people to commit a crime that did not exist. The government made up the crime for the purpose of tricking people into going along with it. It never struck anyone that there were actual crimes happening in Arizona, apparently, and it seems the majority of nonrecused active judges on the Ninth Circuit Court of Appeals failed to consider that too. The dissent I am discussing was from a denial of rehearing en banc, which means a majority of the court did not even feel the injustice of the situation, one noted in a powerful individual dissent in the same case prior to the two-judge dissent I am discussing, was worth more judges considering.

The judges’ lack of concern is as disturbing as the use of government power in Black, but even worse is the fact neither is anything new in Arizona because the “reverse buy” has been popular here for years. Like with the fictitious crime in Black, the government in a reverse buy case finds “bad” people in “bad” areas who want to buy the government’s drugs. Even worse than in Black, the amount of drugs and therefore the class of offense and the mandatory minimums for the people the government tricks are left not up to the unsuspecting participants in the make-believe crime but to the government. If the government says it will bring a lesser amount of drugs, the defendant might get a lower-level felony conviction and probation. As they increase the amount of drugs they choose to involve, the class of felony increases. Eventually, prison becomes mandatory. Shockingly, the government never pitches these crimes to people who live where prosecutors and judges live.

The implications of the government being able to target a person or group of people and trick them into a crime are terrifying. As the wise dissenters in Black explain, it enables the government to pick who they want to prosecute. All they have to do is set an adequately enticing price point for their target. It also draws law enforcement resources away from real crimes, as solving real crimes can be tough. Without a confession or some sort of smoking gun, they might work hard and have nothing to show for it. They might get the wrong guy, or they might get the right guy and lose at trial. On the other hand, if they can make up the crime, recruit the defendant they want, and be there for every step, they avoid the nasty business of gathering proof of crimes they did not create themselves and meticulously monitor. Why would they ever solve any other sort of crime?

The dissent in Black concluded by explaining these cases demonstrate the government’s willingness to infringe upon values of equality, fairness, and liberty and to employ law enforcement tactics that cross the line established by due process. They are right. It is just too bad the majority of judges even in the supposedly pro-defendant Ninth Circuit disagree.

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