In a highly unusual move, a nine-judge panel of district judges from around the 7th Circuit is hearing arguments on whether certain drug sting operations run since the 90s by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives were racially discriminatory.
If the stings are found to have unfairly targeted minorities — intentionally or unintentionally — they could be found unconstitutional. Such a finding could set 43 defendants free and could change the way federal law enforcement is allowed to operate within the 7th Circuit and perhaps nationwide.
According to the Associated Press, the case involves “phony drug stash-house” stings. In these operations, ATF agents pose as couriers for drug cartels and try to talk some suspects into robbing a supposed stash house for drugs. The stash houses are actually fictitious. Other suspects are invited to distribute the fictitious drugs.
One problem with the stings, according to defense attorneys, is that agents have the power to arbitrarily up the severity of any criminal charges. This is because, under federal law, the severity of drug charges depends in part on the quantity of drugs involved. In order to increase the severity of the charges, all the agents have to do is increase the quantity of imaginary drugs involved.
The main question in this unusual hearing, however, is whether African-Americans and Hispanics were disproportionately targeted by the stings.
Defense experts presented statistical data that certainly appears to indicate they were. For example, of 94 people arrested in these stings in Chicago between 2006 and 2013, 74 were African-American, 12 were Hispanic and only eight were white. This was the case even though people of all races admit to using drugs at about the same rates.
The government’s argument is that it is entirely appropriate for federal agencies to focus their stings in areas where drug trafficking activity is thought to be highest. The agencies assume that, in Chicago, drug trafficking mostly takes place in the low-income areas on the city’s south and west sides.
An expert witness for the government testified that the defense analysis was wrong to assume that people in other areas — white areas — were equally likely to participate in drug distribution or in robbing a stash house. He also argued that the 43 defendants caught up in the stings had prior violent crime convictions and were therefore fair game regardless of race.
Is it fair for the government to assume that drug trafficking is mostly taking place in low-income minority areas when drug use is occurring in all areas? Is it reasonable to assume that white people would not agree to participate in these fictitious crimes if they were targeted by law enforcement? Experience has shown police to be very effective at extracting even false confessions from innocent people of all races and economic status. The recent Netflix documentary “The Confession Tapes” illustrates several examples of this. It seems just as likely that law enforcement could persuade some white drug users to engage in these fictitious schemes if they were similarly targeted.