CONGRESSIONAL REPORT STATES ABC COOPERATING MINORS ARE VIOLATING ARKANSAS LAW IN ABC STING OPERATIONS
|THE ABC PAYS KIDS TO TRY AND PURCHASE ALCOHOLIC BEVERAGE IN VIOLATION OF ARKANSAS LAW|
A Report to Congress on the Prevention and Reduction of Underage Drinking states that Arkansas Law has "no allowance for youth purchase of alcoholic beverage for law enforcement purposes".
CLICK TO VIEW THE ARKANSAS PORTION OF THE CONGRESSIONAL REPORT
Federal Entrapment Standard
During the prohibition days, an undercover agent sought out C.V. Sorrells in Canton, N.C., to try to buy a jug of moonshine whiskey. Sorrells, himself a non-drinker, repeatedly declined the agent's requests, but the agent persisted, playing on Sorrells' sympathies for "an old former war buddy." Finally, Sorrells relented and went to a bootlegger in a nearby town and brought back a half-gallon of whiskey. Sorrells was convicted of violating the National Prohibition Act, and he appealed to the U.S. Supreme Court, arguing that he had been entrapped into committing the crime. The Supreme Court agreed and reversed his conviction.
Said the court, "It is well settled that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.
"The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. It is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty and evidently never would have been guilty if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it." (Sorrells v. U.S.)
In the days since the Sorrells case, the court has focused the entrapment inquiry on the two issues of whether law enforcement officials or their agents provoked the crime, and whether the suspect was already inclined to commit it. "A valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." (Mathews v. U.S.) The facts and holdings of four other U.S. Supreme Court cases illustrate these elements.
Sherman v. U.S.: Government Inducement
Joseph Sherman was a recovering drug addict. A government informant approached him at his doctor's office and began a series of attempts to persuade Sherman to abandon his treatment and resume his addiction, so they both could avoid the suffering caused by recovery and treatment. Sherman refused several times, but the informer supplied Sherman with money for drugs and eventually persuaded him to buy drugs for the two men to share.
Considering the government agent's relentless efforts not only to obtain drugs but to convince Sherman to abandon his treatment and return to a life of addiction, the court said, "We conclude from the evidence that entrapment was established as a matter of law."
Lopez v. U.S.: No Government Inducement
An IRS agent was investigating tax irregularities at Lopez's restaurant when Lopez made an unsolicited offer to pay a cash bribe for the agent's approval of phony records. The agent pretended to play along, reported the bribe to his superiors, and wore a wire to his next meeting with Lopez to obtain evidence of the crime.
Arguing entrapment, Lopez appealed his subsequent conviction to the Supreme Court, which had no difficulty in deciding that the agent had merely afforded an opportunity for a continuing course of criminal conduct by a willing criminal, without overbearing inducements. The court ruled, "It is evident that entrapment has not been shown as a matter of law."
U.S. v. Russell: Suspects Predisposed
An undercover narcotics agent posing as a drug distributor was investigating three suspects for manufacture and sale of methamphetamine. In face-to-face conversations, the suspects talked freely of their narcotics activities and offered the agent some meth from their "last batch." The agent told them he could supply a precursor chemical that was difficult to obtain.
The suspects accepted the offer, received delivery of the precursor, and used it to make more methamphetamine, after which they were arrested and convicted. They appealed, arguing that by furnishing one of the components of the illegal drugs, the government had entrapped them. The Supreme Court rejected this argument, noting that an undercover agent "will not be taken into the confidence of illegal entrepreneurs unless he has something of value to offer them."
Jacobson v. U.S.: Suspect Not Predisposed
Over a 2.5-year investigation of child pornography, postal inspectors made numerous efforts to persuade Keith Jacobson to order kiddie porn. Some 34 months after their first mailing to him, inspectors posed as a First Amendment protection lobby and offered to send Jacobson a sample of the kind of material that they thought should be readily available. He ordered the magazine and was later arrested and convicted on federal pornography charges.
The Supreme Court ruled that in the absence of any evidence that Jacobson had a predisposition to possess child pornography, the lengthy government efforts to ensnare him constituted entrapment. Said the court, "In their zeal to enforce the law, government agents may not plant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute."
State Entrapment Standards
Many states apply the federal entrapment test, looking to see whether law enforcement officers or agents have induced the commission of the crime, and inquiring into the suspect's criminal predisposition. Other states have variations on this test, with some states ignoring the suspect's criminal background and weighing only the degree of pressure or incentives employed by officers to see whether such influences were so overbearing as to cause a normally law-abiding person to commit the crime. To confirm the test of entrapment applicable in your jurisdiction, consult local prosecutors or legal advisors.
Certain techniques are generally considered not to constitute entrapment, whether in the federal jurisdiction or the states. These typically include the following: offering to buy or sell drugs or stolen property; agreeing to engage in an act of prostitution; posing as an underage correspondent in an Internet chat room; pretending to be a hit man after a prisoner or other suspect has expressed an interest in paying for a contract murder; and leaving the keys in an unlocked car under surveillance in an area where auto thefts occur.
Underage Alcohol Sales Entrapment Stings
A 2004 sheriff’s department sting operation against alcohol retailers was illegal entrapment. That’s the conclusion of a jury in Florida.
Entrapment is illegal because it is an attempt to induce law-abiding citizens into engaging in crimes that they would not otherwise have committed. It tricks and deceives the innocent into breaking the law and is a federal offense. In the words of the U.S. Supreme Court, entrapment “deserves the severest condemnation.”
Charges have now been dropped against a cashier, Reese Nickells, accused of selling alcohol to a minor who was an undercover operative, and prosecutors say other cases resulting from an undercover sting operation will have to be dropped as well.
A similar sting operation resulted in the earlier arrest of bartender Robin Scocozza after she served a beer to the same undercover operative who was several months shy of his 21st birthday, has a receding hairline and was wearing a beard in both operations.
Ms. Scocozza was acquitted in a jury trial last week, and jurors later said they believed she had been set up. The bartender had previously refused to serve another undercover minor. Deputies then sent in the "older-looking" operative to entrap her. Although she was an innocent victim, the illegal law enforcement operation cost her time, anxiety, and a large amount of money.
The operative, who looks much older than his actual age, served as an undercover informant in 16 other sting operations that resulted in arrests and fines as high as $300. Apparently, his work led to 16 illegal entrapments for which people may have lost their jobs and reputations and for which they were forced to pay heavy fines.
The U.S. Attorney General’s guidelines for the FBI are based on U.S. Supreme Court decisions and exist in order to protect the rights of the innocent while convicting the guilty. Those guidelines insist, for example, that sting operations can only be conducted against the “unwary guilty,” not the “unwary innocent.”
To prevent illegal entrapment retail establishments should not be randomly selected. That would not prevent entrapping a clerk who sells “innocently due to a momentary lapse in judgment” as a result of being rushed, from becoming distracted, or other reasonable cause.
“The only way to ensure that only the "unwary guilty" are caught in the trap is to create a history of the cashier in question with the use of surveillance or repeated compliance checks which are not also sting operations.” Since many, if not most of those caught in these sting operations have passed previous compliance checks, which clearly proves that they have no criminal predisposition to make underage sales, they are the "unwary innocent" if induced by law enforcement to sell to an underage person.
It’s important to enforce the law, but it’s also important to follow the law in doing so. Unfortunately, many law enforcement agencies fail to protect the rights of innocent citizens and illegally entrap them in underage alcohol sales stings.
A highly successful alternative to alcohol stings is to provide alcohol vendors an economic incentive to confiscate false ID’s and to impose civil fines of $1,000 on anyone under the age of 21 who attempts to purchase alcohol from them. Such a voluntary program was so successful in Anchorage that it has been expanded throughout the entire state of Alaska.
Tainted ABC Enforcement Director Boyce Hamlet, Jr. does not possess the intelligence to be able to plan any effective program such as the one in Alaska. His status as a Brady Officer impacts the effectiveness and operations of the ABC and damages its reputation.