Libertarian's Corner: Sting Operations Often Undermine the Separation of Powers

Joseph S. Fulda

Joseph Fulda is a freelance writer living in New York City. He is the author of Eight Steps Towards Libertarianism.

In order to detect and prosecute laws prohibiting victimless crimes, we have seen that the government typically curtails civil liberties and, in 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 being broken at the expense of the others.

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 United States Constitution and most state constitutions. James Madison, in Federalist, Number 47, wrote:

"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 principle of the separation of powers that animated the Framers] . . . the celebrated Montesquieu.

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. Thus, the U.S. Supreme Court overturned a conviction in which a warrant had been issued by the state's attorney general-who happened to be also, a justice of the peace-since he could not possibly be and was not in the facts of that particular case a neutral and detached judicial officer but rather the chief law-enforcement officer of the state (in Johnson v. U.S. 333. U.S. 10, 1947). This provision is rendered a dead letter under federal law and in those states-and there are many-which permit one-party taping, that is, where it is legal to record a conversation provided just one party gives consent and that the resultant recording is then admissible in court. Why? Well, since one party to the conversation is a law-enforcement agent and, of course, he permits-indeed, he arranges-his conversations with the suspects to be recorded. Out goes the necessity of a warrant and the executive branch is thus able to act as both prosecutor and judge, thereby trampling on the suspects' Fourth Amendment rights. In every sting operation involving tapes, probable cause before a magistrate, a judicial officer, is not required. All that is required is for the executive branch officer-a detective or an undercover police officer, typically-to approve the taping, entirely on his own accord. This throws out the basic principle of a judicial check on executive arrogance, which Montesquieu thought so important to the constitutions of free states everywhere. ?