Good Crime, Bad Crime

Brad Heath, who has firmly established himself as one of the premier criminal law reporters in the nation, offers yet another cruel vision of the abuse of confidential informants in USA Today.  The argument in favor of rats is that they are a “necessary weapon in the fight against crime.”

The FBI gave its informants permission to break the law at least 5,658 times in a single year, according to newly disclosed documents that show just how often the nation’s top law enforcement agency enlists criminals to help it battle crime.

These aren’t crimes committed in the pursuit of some greater good, but just crimes. Crimes just like the crimes law enforcement claims to battle. When a rat whacks somebody over the head, it’s just as violent and harmful as when anyone else does it. It’s a crime. The only difference is that the crime is committed by someone on law enforcement’s team rather than the other team. Not that it matters to the guy who got whacked over the head.

Agents authorized 15 crimes a day, on average, including everything from buying and selling illegal drugs to bribing government officials and plotting robberies. FBI officials have said in the past that permitting their informants — who are often criminals themselves — to break the law is an indispensable, if sometimes distasteful, part of investigating criminal organizations.

“It sounds like a lot, but you have to keep it in context,” said Shawn Henry, who supervised criminal investigations for the FBI until he retired last year. “This is not done in a vacuum. It’s not done randomly. It’s not taken lightly.”

No doubt the FBI feels very badly about all the “distasteful” crimes being committed by its rats. Who wouldn’t?  Well, actually they wouldn’t, because once one breaches the wall between committing crime and battling crime, one can rationalize anything. After all, it’s indispensable. We know this because they say so.

Platitudes like “you can’t make an omelet without breaking a few eggs” immediately come to mind. They sound so cute, so persuasive, even though nobody is talking about making omelets or breaking eggs. Rather, this is about committing crime to stop crime. It’s ironic, but that’s still too kind a term. A better description might be to call it insane.

A spokeswoman for the FBI, Denise Ballew, declined to answer questions about the report, saying only that the circumstances in which its informants are allowed to break the law are “situational, tightly controlled,” and subject to Justice Department policy. The FBI almost always keeps its informants’ work secret.

Crimes authorized by the FBI almost certainly make up a tiny fraction of the total number of offenses committed by informants for local, state and federal agencies each year. The FBI was responsible for only about 10% of the criminal cases prosecuted in federal court in 2011, and federal prosecutions are, in turn, vastly outnumbered by criminal cases filed by state and local authorities, who often rely on their own networks of sources.

The report apparently is limited to those crimes committed by FBI rats with advance approval, as if that was all there was to the situation. Adding to the mess are the crimes committed by the rats run by other law enforcement agencies (the DEA and ATF have no clue, or won’t say, how many crimes their rats committed), but that still remains only the “official” view of crimes committed in the name of battling crimes.

The unspoken reality is that rats, by definition, are criminals. When they aren’t wearing wires or setting up grandma for the bust, they are out doing what they do best. These are the crimes that the FBI didn’t approve in advance and, officially, knows nothing about. But if the rat is productive, meaning that he makes cases and thereby makes his agents feel particularly “special,” he can do whatever he wants while agents look the other way.  They may not put the government’s seal of approval on the rat’s crimes, but they certainly aren’t going to bust the bust-maker for doing the same thing they’re claiming to stop.

If you find it “distasteful” that murderers get to flip and, like magic, their pre-cooperation murders are swept away in the rhetoric of the government’s war on crime, it’s worse when they engage in the very conduct that agents claim they’re fighting with government’s express blessing, or even willful ignorance. Conscious avoidance may not work for the public, but it’s part of the distasteful duty of the government rat-runner.

The government wants it both ways, to justify what it deems justifiable criminal conduct in order to win the battle against crime, concealing its irrationality in rhetoric of “indispensable tools.”  If crime is wrong, then it’s wrong no matter who commits it. That applies to criminals on the government’s team as well as the other side.  And, as should not need noting, it applies to crime committed by law enforcement as well. It can be right or wrong based on whether it’s committed by someone the government likes or hates. That’s just not the way crime works.

6 comments on “Good Crime, Bad Crime

  1. Pingback: Parallel Construction: the government lies | a public defender

  2. Ken Bellone

    If the old maxim holds true that “I’d rather have a hundred guilty men go free, than one innocent man go to prison”, you would have to wonder how many guilty men are not only set free, but set on course to intentionally commit crimes, while some folks are implicated in crimes in which they were entrapped, not truly complicit in or not involved with at all?

    This is all done under the false banner of fighting crime, the “war on guns” (Operation F & F) or the “War on (some) Drugs”, but I am of the opinion that the very words law enforcement are contradictory when they are the puppeteers behind the crimes themselves. It is never acceptable for our government to turn a blind eye to crime, but of course I come across as being very naive, which I am not. I’m simply disgusted. I hope more people wake up and discover themselves disgusted as well, but I’m not holding my breath.

    1. SHG Post author

      I would urge you not to use “old maxims,” which themselves are subject to issues. You do better with your own words.

      1. Ken Bellone

        Fair point. I prefer my own words, as they tend to convey more accurately what I intended to say.

  3. Alex Bunin

    I worked with Brad on a series about prosecution misconduct a few years ago, and I was impressed by the comprehensiveness of his investigation and research. He and Radley Balko are on the forefront of criminal justice reporting in the U.S.

    1. SHG Post author

      Much as I admire Radley (who certainly gets plenty of love here), this was about Brad and Brad’s article. Can we stick with Brad for today?

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