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 peace—since he 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.4
This provision, however, is rendered a dead letter under federal law and in those states—and there are many—that permit one-party taping; that is, where it is legal to record a conversation provided just one party gives consent and to introduce the resultant recording in court. Why? 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 suspects’ Fourth Amendment rights. In every sting operation involving tapes, probable cause before 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.
- See my “The Pernicious Nature of Victimless Crime Laws,” Ideas on Liberty, April 2002, and “The Courageous Decision That Lasted But Nine Days,” Ideas on Liberty, May 2002.
- James Madison, Federalist 47.
- The language is from Johnson v. United States, 333 U.S. 10 (1947).
- 4. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
Contributing Editor Joseph Fulda is the author of Eight Steps towards Libertarianism (Free Enterprise Press). Copyright Joseph S. Fulda 2002.