Thursday, August 20, 2009

Is this just?

I am about to tell you a story concerning a police operation that went down in my home town this week and is getting a lot of attention in the local news. I am going to ask you to make a judgment on the principle involved here, in hopes that you will not get derailed by the specifics of the case or the crime the people are accused of. Too often, when this type of thing is discussed, people tend to focus excessively on the criminal or crime itself and don't think about the principle. Please try to ignore what it is these people are accused of and refrain from getting emotional about it. This issue is something I am up in the air about, so my title, "Is this just?" is a true question that I really want your input on. So remember, try to think about the principle here.

So this week our local police department set up a sting operation where they arrested nine men on charges of attempting to make contact with a minor for sex. You know the story: the cops pose as a 14 year old on the Internet, wait around for some gross old dude to solicit sex from them, then bust him when he comes to meet the kid.

I am wondering to what degree this sort of thing constitutes entrapment by the police department. Entrapment can be said to occur when a law enforcement agent induces a person to commit an offense which would be illegal and the person would otherwise have been unlikely to commit. I think the reasoning in these sorts of cases is that if they catch a guy online trying to hook-up for sex with a minor, then it is assumed that he does this all the time and that they are taking a dangerous predator out of society.

Three things that have always bothered me about these operations: (1) You cannot establish whether a predator has done such things before, at least prior to arresting him and interogating him. Part of determining if there is entrapment is figuring out whether the accused was already predisposed to commit the crime. But you would not know this until you had already arrested him, so it seems like a Catch-22.

(2) I have wondered whether it is just to charge someone with attempting to commit a crime when, due to the presence of the agent provocateur, no crime was actually committed. The druggie charged with trying to buy cocaine from an undercover police officer may have only been trying to buy what looked like cocaine but was actually sugar; yet he is charged with trying to purchase actual cocaine. The predator may have been talking to a 35 year old police sergeant on the Internet, but he is charged with attempting to have sex with a minor even though there was no actual minor involved. In both cases, the law seems to be focusing not on what is actually real, but what is in the defendant's mind. Regardless of how heinous some crimes are, I always get uncomfortable when I get the idea that the law is passing judgment on what people think.

(3) I wonder to what degree the agents "tempt" their prey to go along in these schemes. Humankind is weak, and it is true that any man may be tempted to do something, if the stimulation is there, that he may not have thought of doing otherwise. I am not a thief, but tempt me with a tipped over armored car on a lonely country road with the guards unconscious and three million dollars sitting in front of me, and I may do something I never would have done otherwise nor set out to do. Thus, I wonder to what degree some of these men caught and accused as predators are caught and enticed by the police in such a way that the temptation provided by the officers becomes the efficient cause of the accused's actions.

Okay, now that is not all. Listen to this, for this is where this case really gets weird. In addition to the nine men arrested, the local police are also going to arrest and charge 50 men who went online, made contact with the undercover agent, but decided against trying to set up a meeting because they were afraid of a police sting. In this case, the men talked to the agent (whom they thought was a kid), said they'd like to come meet them, but stated that they would not because it was too risky. Whatever you feel about what I described above, this one sounds fishy to me.

Aren't we happy that the men decided to not follow through on their desires? And isn't the fact that they didn't go to the sting because they were afraid of the police a good reason for not doing so? Is it now illegal to fantasize about doing things and then not do them? Yes I know it's not moral to fantasize about doing evil, but is it right for it to be illegal?

When I was 17 years old, my friend and I talked about how we could rob a local gas station. We knew somebody who worked there (an inside job) and knew how much we could get. We talked about when to do it, how to make it look like a real robbery and not an inside job, where to stash the money, etc. Every detail was worked out, and we laughed about it and said it would be "fun" to do. But it was only a mental exercise - I don't think any of were really willing to do it, and we all agreed that it would be too risky. Under the criteria invoked in the above scenario, I could have still been arrested for this, even though no crime had been committed and I intentionally stated my desire to not commit the crime for fear of getting caught.

The Supreme Court has gone different ways when handling entrapment cases, but the main criteria it looks at was decided in Sorrells v. United States (1932), where the court said that entrapment was determined by asking the following question:

Whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials.

This is what gets me thinking. "Person otherwise innocent" - you have no way of knowing they are otherwise innocent before you arrest them.

"Product of the creativity of its own officials" - Would any of these men have gone to meet what they thought was a 14 year old for sex had not a police agent been online soliciting for it?

In the case of these 50 other men who are being arrested for not going through with the sting, I think there could be a strong case that they have been entrapped, or even more so, that they have not done anything illegal. I can't see any way that talking about committing a crime and then not doing it is itself a crime.

With the nine who were actually arrested trying to meet the kid, I'm not so sure. I'm not sympathizer with pedophiles, but I do hold justice to be very important. So, what do you all think about this case?

Warning! If you are going to post, post about the question - don't respond with emotional comments like, "Boniface, how would you like it if your daughter got solicited by an online pervert!" I'm not defending these men in any way, but I said to focus on the principle, not the crime itself. To what degree, if any, does the police's behavior here constitute entrapment, and what of these 50 men who are being charged for not going through with the meeting?


Jason Negri said...

I don't know enough about criminal law to opine about entrapment and where the lines are drawn in practice. But I will comment on your point #2 above to say that intent matters in criminal law. That's why these guys might be charged with an attempted crime, which is distinct (and a lesser offense) than the crime itself. The mens rea of the defendant is a necessary element of either type of crime, what was different in the "attempt" categroy is that something else prevented the crime from actually being completed. Doesn't matter if it was the form was wrong (sugar instead of cocaine) or someone showed up to stop the crime. And I don't see anything wrong with it.

Really, this not only reflects Christian morality (where your subjective culpability makes all the difference), but also demonstrates an understanding of the human person and the whole concept of propensity. At some point (and this, I suppose, is where the entrapment line is drawn), there's a difference between someone who might swipe a bag of cash if it's left there and he thinks no one is looking, and the person who would make plans to do it and take some action in furtherance of that plan.

Also, if you can get 'em on a "lesser" charge like attempted [blank], you do so, if only to have it on the guy's record for the rest of his life. And that's the sort of thing law enforcement - and parents - need to be aware of.

BONIFACE said...

Thanks Jason, that helps. I too agree that those type of people should be held accountable for that, but I wasn't sure what the legal background was for it - but what do you think of the other guys who are being charged for NOT going to the rendezvous?

Jeff Pinyan (japhy) said...

I don't know what to say about the second half (arresting men who considered it and then decided not to), but regarding entrapment in general...

If the men were already going to chat rooms to find a kid to molest, then I don't see how it could be entrapment. If, on the other hand, the men were solicited by the officer to come to the chat room to discuss meeting for sex, that's another matter entirely.

Timothy Mulligan said...

What is the statute of limitations on conspiracy to commit robbery? ;)

Mr S said...

Timothy Mulligan said...
What is the statute of limitations on conspiracy to commit robbery? ;)

I love statues.
There should be no limitation on statutes.... especially Catholic statutes.. :)

Hang him.... I say... hang him.

Anonymous said...

Entrapment - It would be difficult to discern whether entrapment occurred without the text of the conversation and how the conversation was first initiated.
When Johns are busted for attempting to procure illicit sexual services from disguised police officers, a John needs to initiate the transaction and make it very clear (no euphemisms) what service he is paying for. If he does not satisfy these conditions he gets off the hook. If a similar standard is applied to these online chats I don't see how any entrapment is occurring.

I do feel bad for the other 50 guys. I'm not sure what charge could be pressed against them. However if I were the police I would be totally stoked that 85% of those inclined to fornicate with minors met online would be too fearful of punishment to complete the act. If fear of the Lord is the beginning of wisdom then fear of punishment is the beginning of justice.

Friend of the Cross said...


Should send child porn to every e-male address in the country with a "click for more" link? And charge all who click with seeking illegal pornography. (It will defend children and weed out the vermin.)

We could give everyone a gun in a box with a note that says "kill yourself. Do us a favor." And anyone who pulls the trigger (which we will engineer not to fire) will be charged with attempted suicide. (It will save lives.)

Or we could send envelopes filled with cash to the "wrong addresses" and and all those who don't bring the money to the police station we will charge with stealing. (They have a proclivity toward stealing as you can see and those who steal all more likely to commit other violent crimes....)

We could do the same with drugs to find potential addicts. Or offer high-schooler's high paying jobs they can start now but with the caveat that they need to drop out of school to weed out the problem high school drop out.

The reason I give so many examples is so that you can take the emotional aspect out of it. (As you were trying to do). If we examine for the aspect of arresting all those who don't give a thousand dollars to the police as thieves then we can be level headed. Certainly I don't want Mr. Potter stealing the thousand dollars but it is much bigger to say I don't want Mr. Potter stealing my little girl.

I think the problem is that we are seeking those with a weakness or proclivity out and then thrusting the evil upon them as powerfully as we can in order to see if they stand the test and to catch those who don't. It is like waving chocolate in front of a dieting person or smoking next to a person trying to quit. The person may be a pedophile but he may be fighting it in his mind and trying to overcome it. To take that struggling mind and attack it with his inner demons is gravely disordered (despite the intention).

One could pose as a girl and when weak men find her and seek to have sex with her she could talk about Jesus and proclaim her desire to be a pure virgin for Him. The man's thoughts toward her would be directed toward God and purity, not toward sex and impurity. The intention if stopping the crime is the same in both cases. The difference is that in the one case the man is bludgeoned by impure things to the point that resistance requires heroic virtue. The other case the cop determines who he should be suspicious of but helps to reform the man instead of killing the man. I don't even know that the second system would be effective. I do know that the first system is, as I said before, gravely immoral despite the intention.

I will say what I believe to be the to main points again:
1. The cops are playing the part of the devil trying to provoke man into committing serious mortal sin. (Whether they are entraping I don't know I'm not a lawyer.) This action is gravely disordered and can not be justified by any intention or greater good.

2. The virtue required to resist there proposals is heroic. For you not to drink it is no big deal, but for an alcoholic it is a very big deal. For you it may not be much to resist the come ons of a teenager but for a man who finds them very attractive it could be nearly impossible.

In a final note it is absurd to arrest those who "passed the test" because they waffled. They may have only done it out of fear but haven't all of us avoided some sin (minor and/or major) because of fear of hell, punishment, the law et cetera? Isn't one of the purposes of punishment to make men fear? They fear jail so they pay there taxes. Does that mean we should say they are tax cheats accept for fear of the government? I bet that most people pay their taxes because they have to not because they want to. Just as most people do good because they have to not because it pleases them at the time.

So these men are weak; I am to. So they almost fell; but for the grace of God I would already have fallen.


Anonymous said...

In regard to Thought Crime there is a Tom Cruise movie you might want to watch that raises this same question called: The Minority Report. (PG-13 for violence, brief language, some sexuality and drug content.) In the movie there are three people (or aliens I can't remember) who have special gifts of seeing future crimes before they happen. In one case a man leaves the house and while he is gone his wife has an affair with another man. He comes back to the house to get his reading glasses or something. The aliens show the scene of him walking in on the lovers, stating his reason for coming, and killing the two of them. It is Tom Cruise stops him at the point where he picks up his glasses and arrests him. (That scene doesn't spoil the movie. That scene is in the beginning and is used only to give you an idea of the program.)

John F. Triolo said...

These police operations are gravely immoral. It is a sin to tempt another to sin.

Robin said...

Sounds like Orwellian thought crime to me. Most definitely unjust. Similar to when cops conduct stings on bars and liquor stores by having a minor dress to the nines and try to purchace alcohol. If they sell to the minor, pay a serious fine, can lose their license, possibly even go to jail. Would they have done this if it wasn't a setup? Who's to say, but the double standard that cops are allowed to prosecute "crime" is absurd!

Robin said...

Orwellian thought crime at it's finest.

Cops do the same thing by conducting sting opperations against bars and liquor stores. They dress up a hot girl in her late teens to look much older, and send her in to purchase alcohol. If the propriator sells to the "underage" person, they pay a hefty fine, can lose their license, possibly even go to jail. Would they have sold to a minor if it wasn't for this entrappment? Who's to say, but it is forcing people to commit "crimes" that they might not have otherwise committed.

Remember, there is a difference between something that is a crime in and of itself (rape, murder, etc.) as opposed to that which the state deems a "crime" (speeding, underage drinking, etc.).

Robin said...

Orwellian thought crime at it's finest. Cops do the same thing by conducting sting opperations against bars and liquor stores. They dress up a hot girl in her late teens to look much older, and send her in to purchase alcohol. If the propriator sells to the "underage" person, they pay a hefty fine, can lose their license, possibly even go to jail. Would they have sold to a minor if it wasn't for this entrappment? Who's to say, but it is forcing people to commit "crimes" that they might not have otherwise committed.

Remember, there is a difference between something that is a crime in and of itself (rape, murder, etc.) as opposed to that which the state deems a "crime" (speeding, underage drinking, etc.).