Sting Operations and the Separation of Powers

Article excerpt

To detect and prosecute laws prohibiting victimless crimes, government typically curtails civil liberties and, by standing in for a real victim, creates opportunities for abuse and corruption in sting operations. Sometimes, prosecution of these crimes is furthered by offering various considerations to one member of the conspiracy at the expense of the others. This would normally be called bribery and subornation of perjury and is likely illegal, although commonplace.1

The easiest and most effective way to present a case against a criminal conspiracy to a jury is to capture the whole thing on tape; that way no one need turn state's evidence, and the direct participation of the officers performing the sting can be kept to a minimum. Unfortunately, this, too, has its problems: It undermines the separation of powers mandated by the U.S. Constitution and most state constitutions. "Were the power of judging . . . joined to the executive power, the judge might behave with all the violence of an oppressor," wrote "The oracle who is always consulted and cited on this subject [the separation of powers] ... the celebrated Montesquieu."2

Let us see how this applies to the common sting operation where the participants' behavior is captured on tape. The fundamental search-and-seizure principle is that an executive officer is to give evidence of probable cause to a "neutral" and "detached" judicial officer, after which the magistrate will decide whether the evidence warrants search or seizure.3 Thus, the U.S. Supreme Court overturned a conviction in which a warrant had been issued by the state's attorney general-who also happened to be a justice of the peacesince be could not possibly be and, in the facts of that particular case, was not a neutral and detached judicial officer, but rather the chief law-enforcement officer of the state. …