Invitational Edges of Corruption
Prior to the early years of this [the twentieth] century, the nonmedical use of narcotics was largely unregulated and distribution and sales were routinely handled by physicians and pharmacists. However, sparked by international obligations and fervent moral crusaders, a series of legislative acts and court decisions were enacted and enforced. The enforcement of the laws resulted in marked changes in the population of users and drove the trafficking of narcotics underground.1 Since the early twenties, then, federal, state, and local agents have been engaged in enforcing the law and attempting to eradicate the illicit trafficker and his activities. Even though it can be demonstrated by official statistics that large numbers of users and dealers are arrested and prosecuted each year, narcotic law enforcement problems continue to generate considerable governmental and public concern. Our purposes in this chapter are to examine the dominant or operative mode of enforcement, to point out the problems associated with it, and to indicate how these problems are not unique to narcotics enforcement.
The enforcers of the narcotics laws stand on the invitational edge of corruption, and the problems they encounter while regulating and attempting to eradicate illicit trafficking of drugs reveal similarities to regulation of other markets. Study of their problems and of the corruption that can, and does occur, will lead to insight into the structural problems of regulation, and to an understanding of the stress or tension points in regulatory apparatuses of the government.
As Robert Merton has noted, there are many similarities between legitimate and illegitimate businesses. "Both are in some degree concerned with the provision of goods and services for which there is an economic demand." (Merton 1957:79) Thomas Schelling (1967) has noted that there must be many similarities between licit and illicit markets, and Redlinger (1969) analyzing heroin markets demonstrated remarkable similarities to licit markets. Likewise, Moore's analysis (1970) indicates that the economics of heroin distribution have similar shapes to those of other consumer products. So the question is, then, what are the similarities and differences, and how do these effect variations in the regulation of the market?
Licit and illicit markets share several structural properties in common.2 Both involve willing buyers and sellers. The buyers make demands for goods and services, and the sellers provide these for some reimbursement. In both licit and illicit markets, the sellers have in mind the making of a profit, and ideally maximizing that profit. Both types of markets are regulated by agencies whose mission it is to do so, and both types of markets have sellers within them who seek effective control over the manner and type of regulations that will be applied to them. However, there are some differences and these stem from the moral intention of the regulatory statutes, the loyalty of those applying the regulations, and the nature in which they are applied.
The moral intention of regulatory statutes either legitimizes particular behaviors, goods and services, or it jades them. Some goods and services (e.g. the production, distribution and possession of alcoholic beverages) become morally transformed; first they are defined one way, and then another. The nature of the definition structures the manner in which regulation is to be accomplished. Where products are determined to have "legitimacy" those who buy and sell them often are licensed. The license is part of the regulatory process and identifies dealers. These dealers in turn are regulated by a set of standards that are set by the various jurisdictions: for example, federal, state and local. Consumers are assured, in so far as sellers adhere to the standards, that products are of sufficient quality. The moral intention of the regulation, then, is to insure the adequate delivery of goods and services and to insure the delivery of adequate goods and services. This is not the case for markets that have been morally transformed into "deviant" markets. Demand for products that are defined as illicit places a stigmata on the consumer; selling such products places the dealer in a criminal and highly sanctionable position; the regulation seeks to collapse distribution channels, reduce supplies, and effectively reduce demand. Markets which are defined as immoral become "legally suppressed" and the regulatory functions become "enforcement" functions rather than compliance functions. Strictly speaking, there is no difference between compliance functions of regulations and enforcement functions because both seek to persuade and coerce sellers to "comply" with the regulations. The difference between the two arises from the intent of the statute. In legal markets, the actions of distribution, production and consumption are not illegal in themselves, and the persons doing this activity are not subject to criminalization. The regulation seeks to insure the channels of distribution and seeks to insure the quality of the product. Licensing of dealers performs this function, and in addition secures revenue for the licensing agent who in this case is the State.3 The revenue provides resources for the licensing and compliance agents to continue their performances. This is not the case with illicit markets. Regulations do not insure product adequacy, cannot provide revenue intake and thus cannot generate their own resources. Finally, the regulations seek "compliance" only in the sense that they wish no one to engage in the activity.
In a similar manner, the loyalties of licit market regulators are focused in a different manner than those agents regulating illicit markets. Very often, the regulators of licit markets are products of those markets. The staffing of regulatory agencies is accomplished by using industry executives who are "experts" in the field. Thus the loyalties of the people as agents is not wholly to the regulation process. They have an "insider's" view of the marketing structure and are able to consider both the regulations and their effects on the sellers. Obviously. this type of interpenetration between regulators and sellers is not extant for illicit markets. The regulators are never drawn from the ranks of sellers,4 and one can imagine why. The sellers of illicit products are typically viewed as unwholesome characters, and the aim of the regulations is to put them permanently out of business.
The ways in which the regulations of licit markets are applied vary considerably from the manner in which illicit markets are regulated. Compliance sections of regulatory agencies frequently warn the seller to correct his practices, or at best take him to court where the process of advocacy litigation is applied. The seller when convicted is often fined or reprimanded. Since the regulators are often drawn from the industries they regulate and since the regulations legitimize, albeit regulate, the market, the same moral stigmata is not applied to violators. Indeed, the violators may not view themselves as having committed a violation (see Sutherland, 1949, on this point). Suppressive enforcement has some similarities, but is ultimately geared to bringing about virtual cessation of activity. Agents may warn a seller of narcotics whom they cannot arrest, but in general, they seek to catch him in the act (although these patterns vary by size of city and patterns of seller's activities). Once caught, they seek to remove him from the market or immobilize him, since removal and immobilization are the only manners in which he can be forced to comply with regulatory standards. Some of the differences we have been discussing between legally regulated and legally suppressed markets and their relationships to regulatory agencies can be summarized in Figure One.
A Comparison of Selected Aspects of Legally Regulated Versus Legally Suppressed Markets
Legally Regulated Markets
Legally Suppressed Markets
1. Willing buyers and willing sellers
1. Willing buyers and willing sellers
2. Sellers seek to maximize profits
2. Sellers seek to maximize profits
3. Intent of law to set and maintain standards of goods and services
3. Intent of law to suppress all activity
4. Law licenses and legitimates dealers
4.Law stigmatizes and illegitimates dealers
5. Law legitimates use
5. Law stigmatizes use
6. Agents of regulation often drawn from sellers ranks
6. Regulators never drawn from sellers ranks
7. Agents seek compliance and seek maintenance of market at established levels
7. Agents seek eradication of market
8. Buyer quality protected
8. Buyer quality unprotected
Variation in moral intention, reflected in legal definition, creates differences in the kinds and types of influence sellers have on regulators and regulations. As we noted earlier, sellers of a product will seek to maximize their profits and will seek to have effective control over market conditions. Legally regulated markets offer the seller more opportunities for influence than do illicit ones. One reason we have already noted; in licit markets very often the regulators are drawn from the ranks of sellers, and often return to those ranks when they have left the regulatory agency. Secondly, in legally regulated markets, sellers have available other means for political influence. Because their activities are defined as credulous, they can utilize legislative means to attempt effective control. That is, they can attempt to have regulations set, sustained or altered in line with their wishes rather than the wishes of other partisans in the market (e.g., agents and consumers). They can "lobby" before congressional committees as "expert witnesses." When they appear, they can produce market data to support their position, and their legal staffs can actively seek changes in the law through aggressive court action. They can engage in negotiation with regulatory agents and attempt to mitigate the regulatory effects, or have them apply only after a certain period that will allow for industry "adjustment." They can engage in reactive challenging of regulations; that is when they are charged formally and brought into court, they can initiate challenges to the law. They can band together into associations on the basis on common interests and utilize these associations to voice their collective position. Finally, they can resort to bribery, blackmail, extortion, pay-offs, and a variety of other corrupting measures in pursuit of their goal of effective control. These corrupting attempts can be made both at higher official levels (since they have access to the personnel at this level of the regulatory process), and at agent enforcement levels. Thus, legally regulated sellers have both licit and illicit means of influence available to them.
Sellers operating in illicit markets do not possess the same credibility of licit sellers and, consequently, they do not have the same types of access to influence over their market.5 Regulators usually view the sellers as morally reprehensible, and take a hostile position vis-avis their activities. As a result of the moral intention of the regulations, then, illicit sellers have limited capacity for legitimate political influence. They do not engage in lobbying in a traditional sense, and they do not actively and voluntarily come forth as "expert witnesses" during drug law hearings. They do not engage legal staffs to construct alternatives to present regulations and to initiate active resistance to present statutes through litigation. To challenge regulations, they usually must wait until the regulation is applied to them, and thus, their posture is defensive. They cannot band together and have an Association represent them and their collective views. Presumably, in the United States, their access to officials higher up in the regulatory process and other government agencies is severely limited, and thus, they have minimal opportunities to corrupt upper echelons of regulatory agencies. Thus, for sellers in illicit markets, their focal points for effective control of their market must be enforcement agents. Retail sellers in licit markets, to be sure, concentrate at this level since their span of control and resources warrants attempted intervention only at this level. However, wholesalers and producers are able to intervene successfully at higher levels. In legally suppressed markets, even wholesalers must focus on enforcement levels since influence at higher levels is denied them. 6
The structural constraints of legally suppressed markets expose the agent to an accumulation of attempted influence. Because sellers want effective control over their markets, they must find ways to neutralize enforcement agents. If they cannot avoid at least arrest and charge, and it is probable that eventually they cannot, then they must attempt to gain favorable influence with agents. The differences between legally regulated and legally suppressed markets is summarized in Figure Two.
Indicators of Degree of Access to and Influence Upon Sources of Legitimate Authority for Sellers in Legally Regulated Versus Legally Suppressed Markets
Legally Regulated Markets
Legally Suppressed Markets
|1. Sellers have potential political influence
|1. Sellers have limited potential for political influence
|2. Sellers can engage in lobbying to change and to maintain laws
|2. Sellers cannot, do not lobby
|3. Sellers can testify as expert witnesses
|3. Sellers do not testify
|4. Sellers can engage legal services to actively challenge existing law and to create alternatives
|4. Sellers do not actively challenge laws
|5. Sellers can engage in negotiation on regulations with officials
|5. Sellers cannot engage in negotiation
|6. Sellers can engage in reactive challenges to charges under regulations
|6. Sellers can engage in reactive challenges to charges under regulations
|7. Sellers can form visible voluntary associations that can take collective positions
|7. Sellers cannot form visible voluntary associations
|8. Sellers can engage in the corruption of officials
|8. Sellers cannot engage in the corruption of officials
|9. Sellers can engage in the corruption of compliance agents
|9. Sellers can engage in the corruption of compliance agents
We want to point out that we are not attempting to explain why individual enforcement officials become corruptible and corrupted, nor are we making comparisons between corrupted agents and those who are credulous. Furthermore, we are not arguing that all enforcement is corrupt or that a sizeable number of agents are corrupt. We are specifying the structural conditions which focus pressure and tension on agents, antecedent to the actual day-to-day occasions of enforcement. Each department of agents makes varying adjustments to these conditions: the department may be cognizant of the pressures, demand high agent accountability, and thus be relatively immune to seller influence; or, individual agents within a department may be either "clean" or "on the take" and the problem is isolatable to individuals; or, the entire department can be involved in aiding seller control of the market; or, finally, the department itself can, or agents within the department can be selling in the market resulting in interpenetration of seller and regulator. 7
There are additional structural constraints on agents that promote infractions of other laws in the performance of their assigned duties. Because the narcotics market involves willing buyers and sellers, agents must find ways of obtaining information that are not "victim" centered. That is, agents do not have a victim willing to give information. Thus, they must buy information or attempt to gain information from others within or near to the sellers. Moreover, having once obtained access to information about seller activity, agents must find ways of keeping their channels of information open. The manner in which they do so may involve them in infractions of other laws. As we shall detail later, there are structural pressures on enforcement agents that promote both infractions in enforcement of regulations, and that promote obstructing legal proceedings. All of these considerations gradually lead to a corruption of regulations and negotiated law enforcement practices. 8
The focus of strain upon the agent points up a structural problem of regulation in general, and specifically the regulation of lucrative illicit markets. By looking at some of the enduring patterns of corruption, we may be able to locate and sensitize ourselves to more general problems of the structuring of regulation. There is little irony in the generalization made by the Knapp Commission in their report on police corruption when it states that " . . . a corrupt police officer does not necessarily have to be an ineffective one" (1972:55). Agent corruption is a product of the requirements of narcotic law enforcement and a theme found in the history of the enforcement enterprise. 9 The structural nature of narcotic law enforcement has historically created the problem of agent corruption,10 and is reflected by the social organization of enforcement agencies.
Organizational Aspects of Drug Enforcement Agencies
Narcotics squads, whether specialized sections within police departments, or subsegments of Vice divisions, are characterized by internally and externally generated pressures to produce visible evidence of their activity and achievements. Because the "products" of such organizations are essentially ineffable and difficult to measure, agencies reify specific measures of performance. These measures then become powerful inducements to organizational conformity, for in order to show adequate performance, agents must produce data in conformity with the established measures (Manning, forthcoming). The pressures to produce, and the implied sanctions for failing to produce are the structural mechanisms by which policies of agencies become agent conduct. 11
Internal pressures can be analytically separated from those external to the agency. In addition, we can separate pressures in terms of their impact. Some pressures induce agents to violate laws to enforce the narcotics law, while others induce agents to obstruct justice. The translation of pressure is very indirect; "varying efforts to enforce these (vice laws) undermines the possibilities for strict supervision because the work obliges the men to engage in illegal and often degrading practices that must be concealed from the public" (Rubinstein, 1973:375)/ Furthermore, the application of successful techniques on the street (discussed below) produces a continuing ambivalence to law-abiding conduct. As Rubinstein (1973) notes, no department " . . . had found ways of fulfilling its obligation to regulate public morality without resorting to methods that constantly provide policemen with temptation and encourage ambiguous attitudes toward official standards of conduct." That is, narcotic law enforcement is virtually always secretive, duplicitous and quasi-legal, and is extremely difficult to effectively regulate. 12 Greater pressures lead to, at least, greater encounters with problematic situations containing opportunities for corruption. Ironically, increasing the effectiveness in vice enforcement brings with it the increasing likelihood of corruption.
Internal pressures for excessive enforcement are created by: (1) aspirations for promotion, salary, and "easy numbers" within the unit; (2) quotas for arrests or stops insofar as these are tied to notions of success and enforced on agents; 13 (3) directives from administrators either in conjunction with "dope drives" (departmental efforts to round up users and pushers) or individual officers attempts; (4) self-esteem maintenance produced by attempts to achieve success in terms of the conventional markers of arrests and buys; (5) moral-ideological commitments by officers to "protecting the kids" by "locking up the junkies and pushers" and thus, "winning the war against dope" and achieving a final E.N.D. ("Eradicate Narcotics Dealers" a recent Detroit campaign against dealers).
Pressures to obstruct justice flow from similar sources to those mentioned above insofar as to be successful one must: (1) protect informants who constitute the agents vital link to the underworld; (2) create informants through threats of prosecution on pending cases if cooperation is not forthcoming, and when they do cooperate persuade officials to drop charges against them; and (3) suppress information on cases pursued by other officers (for example, where ones informant is also responsible for a burglary). The last category of obstruction also occurs when there is interagency competition and federal agents, for example, will suppress their information about the case so that other agents (e.g., State agents) will be unable to "break" the case before them, or even with then and get "credit."
Internal pressures are complemented by external pressures to enforce the law and to obstruct justice. Law enforcement, shading into excess, is facilitated by: (1) political pressures from formally elected or appointed political officials translated through the chain of command to agents; (2) media pressures in the form of editorials, feature stories, comments on the rising crime rate (cf. Davis, 1952; Cohen, 1973); (3) grand jury, prosecutors office and judicial pressure (which can work in a "negative direction" in Washington, D.C. where District Prosecutor Silvert urged officers not to bring him cases of personal marijuana possession to prosecute); (4) ad hoc community groups and community associations; (5) external funding agencies such as ODALE, DOJ and LEAA which provide money and additional manpower (in the form of strike forces or tactical units).
The obstruction of justice occurs as a result of pressures generated by: (1) bribes to agents from users or dealers either to protect their operations or to avoid a charge once arrested; (2) competition and cooperation between and among agents and agencies (this is especially crucial when informants are needed in cases where both state and federal agents are involved, cf. Daley, 1975); (3) grand juries that encourage the development of "big busts" or big cases to show the public that "something is being done," also encourage the protection of snitches in order to have them work bigger cases, and to protect them in the interim from prosecution on other pending charges.
Each of these pressures, it should be emphasized, is not directly translated into the conduct of agents. The point we wish to underscore is that the organizational ambivalence of narcotics law enforcement is such that rather than providing inducement to conformity to the law, it is more likely to underscore the virtues of avoidance of the more obvious requirements of law enforcement. It encourages rather more excess in pursuit of the job and modification of procedural rules to maximize arrests and buys. In the course of so doing, one learns to view with only minimal concern somewhat less obvious consequences of systematic obstruction of justice.
Patterns of Agent Corruption in Narcotics Law Enforcement
Corruption, in the sense that we are using the term, refers to departures from correct procedure in exchange for some goods, services, or money. That is, the agent modifies what is expected of him by the nature of his employment and thus affects the outcome of enforcement. The corruption of enforcement can occur in seven principal ways:
If we eliminate for the moment everyday/anyday favors and gratuities, considerations and presents which are exchanged between police officers and the public, bribe-taking is the most common form of corruption (on this point, see Stoddard in Sherman, ed., 1974). In the area of narcotics enforcement, bribe-taking manifests itself in two ways. First, there is a payoff to officers from dealers for advance-warning information concerning raids, or other such warning information. This type of payoff is made on a regular basis. Secondly, there are payoffs made at the time of a raid or arrest. In the first instance, the bribes are made by a single organization or person, whereas in the second, officers accept bribes from a variety of persons; that is, officers accept the bribe from whomever they are arresting. At the time of arrest, the individual being arrested will make explicit or implicit remarks concerning money or drugs that he may have available. The officers may take the dealers stash money and then let him go (see Knapp Commission, 1972: 94). If the dealer has no money the officers may confiscate his drugs but this case is not as often occurring as the taking of stash money. However, the opportunities for bribery do not end with the making of the arrest, for the agent or agents still have the option of "making the case" badly. That is, the agent can write the case up in such a manner that it will be thrown out of court. And there are other ways:
. . . [A] police officer who is skillful or experienced enough can write an affidavit which appears to be very strong, but is still open-ended enough to work in favor of a defendant when coupled with appropriate testimony from the arresting officer. For example, on officer could state in his complaint that the suspect threw the evidence to the ground at the approach of the police. Should that officer later testify that he lost sight of the evidence as it fell, the evidence and the case could well be dismissed. The Commission learned that it was not uncommon for defense attorneys in narcotics cases to pay policemen for such favors as lying under oath and procuring confidential police and judicial records concerning their clients cases (Knapp Commission, 1972:97)
The Knapp Commission data is substantiated by evidence gathered by other researchers (cf. Sherman, ed., 1974). For example, Sanders (1972), studying the court experiences of middle class drug users, was able to show that police officers, working through defense attorneys, were willing to later drop narcotics charges for a fee. The attorney acted as a middleman in the situation. He would take money from his client, take a percentage for his "service" and pass on the remainder to the officer. The money may buy a change in the charge (e.g., a reduction from felony to a misdemeanor), but more likely the money was in exchange for "sabotaging" the trial. The officer would make errors such as incompetent testimony or not being able to find evidence (see Sanders, 1972:242-243). 14
The Knapp Commission also uncovered evidence of bribes in several diverse forms:
. . . [I]t was quite common for an apprehended suspect to offer to pay his captors for his release and for the right to keep part of his narcotics and cash. This was especially true at higher levels of distribution where the profits to be made and the penalties risked by a dealer were very high. One such case was that of a suspended Narcotics Division detective who was recently indicted in Queens County and charged with taking bribes to overlook narcotics offenses. The indictment alleged that this officer accepted $1500 on one occasion for not arresting a suspected drug pusher who was arrested while in possession of $15,000 worth of heroin. There is evidence that on another occasion this detective was paid $4000 by a different narcotics pusher for agreeing not to confiscate $150,000 worth of heroin. The detective has pleaded guilty to attempting to receive a bribe, and his sentence is pending (1972:96).
Agents have been known to use illicit drugs. For example, Harris (1974), interviewing three ex-narcotics agents, reports the smoking of marijuana by agents as they sat "surveillance." In another case witnessed by one of us, an agent about to participate in a late night raid discussed the fact that he was tired, and promptly produced a nonprescription vial of amphetamines from which he took and swallowed three capsules. Undercover agents, to show their loyalties to the people on whom they are doing surveillance, often must "turn-on" (use drugs) with them. In several observed cases, officers went to parties and carried their own stash as evidence that they were users.
Evidence gathered by journalists suggests that many observers believe that dealing in narcotics exists among agents, especially local agents in Los Angeles and New York. New York Times reporter David Burnham wrote:
. . . [S]ome policemen wonder whether the transfer of two hundred plain clothesmen, a highly cynical group of men, to the narcotics beat might not result in a net increase in the flow of narcotics into the city . . . "The moral jump from making illegal drug deals to get evidence and dealing in drugs to make money is not as big as it might look to an outsider," one experienced narcotics detective said (Burnham, in Sherman, ed., 1974:309-310).
In Gary, Indiana, near Chicago, seven policemen were convicted in February, 1975, of conspiracy to deal in drugs and of drug trafficking (Washington Post, February 9, 1975). In 1974, the same group was convicted on trafficking charges. The Knapp Commission discovered in the testimony of two "ex-addicts" that eleven Harlem policemen would supply them with narcotics in exchange for cigarettes, whiskey, power tools, a mini-bike ad stereo equipment. The addicts had collected the goods through burglaries (Daley, 1974:339). Several other variations on this pattern occur: the selling of narcotics to informants for resale to other addicts, and the use of narcotics to pay off informants for information useful in making a buy or buy-and-bust. Narcotics officers also financed heroin buys for others when the aim was not eventual arrest (Knapp Commission, 1972:323) (a case of both arrogation of seized property and dealing illegally in narcotics). A more illusive type of corruption is simple conspiracy to deal, such as introducing potential customers to dealers. Since the latter is a requirement of undercover work for informants, it is hardly surprising that agents might introduce, directly or indirectly, clients to a pusher. Without such introductions, the enforcement of most narcotics dealing laws would be impossible.
Arrogation of Seized Property
Since the law in most states requires that any property relevant to the crime must be seized until the trial has been held, large amounts of property, typically automobiles, guns, money and drugs are confiscated as evidence. The control of evidence of this type is extremely difficult as well as expensive for large police departments. [Its legal status is under present review (Technical Papers of National Drug Abuse Commission, Appendix, Vol. III).] A series of scandals in the New York Department in 1973 involved missing or stolen property, including well over one hundred kilos of high-quality heroin taken from the Property section of the New York Police Department (Pileggi, 1973a). Further, the arrest situation often involves large amounts of money involved in the exchange that led to the arrest, as well as other monies which may be a part of the dealers crib or bank. During the Knapp Commission testimony, Patrolman Phillips (one of the corrupt policemen "turned" by the Commission) testified he saw a plainclothesman leaving the scene of a multi-million dollar dug raid with $80,000 confiscated earlier in the raid. In March, 1975, the officer identified by Phillips was indicted, and charged with stealing more than $1500 in cash and heroin (the minimum amount for a grand larceny charge) (New York Times, March 21,1975). Although the money used in the actual exchange (used by the informant or the agent to buy the drugs) is marked and the serial numbers registered prior to the buy, other confiscated money becomes the responsibility of the agents to collect, record and to insure its safe deposit with the IRS.
Illegal Searches and Seizures
There are several ways in which illegal searches and seizures can be initiated, and each is used at one time or another (see Harris, 1974; Sanders, 1972; Wambaugh, 1973; see also Johnson and Bogomolny, 1973, for a study of reported arrest data). One way illegal searches are conducted is for the narcotics officer to claim that there was a "quantity of alleged drugs" in "plain sight" (see Wambaugh, 1973; Sanders, 1972), and then search the house, apartment, or vehicle of the person. In the case of a vehicle search, often the outward appearances of the person or the vehicle provide clues to officers that a drug violation may be occurring, and, in addition, that a "stop" on the vehicle is warranted (Johnson and Bogomolny, 1973, euphemistically refer to these as "ancillary" or "consumption-related" offenses). The Officers then stop the vehicle, "see" contraband in plain sight and initiate a search of the vehicle. Another variant on the vehicular search is to claim, as with marijuana, that "smoke could be smelled" and that the search had "probable cause." "Flaking" is a term referring to the act whereby the officer plants illicit drugs on the person (see Knapp Commission, 1972). When an officer has made an illegal search, he may "find" drugs which have been "flaked." Narcotics officers may possess a "sure bust kit" that contains several types of drugs and allows them to select the appropriate contraband that will justify their illegal search. Reiss (personal communication) indicates that a narcotics officer working the Washington, D.C. area told him that he had never made an arrest without flaking the person. Still other officers have reported to us, that "if youre gonna search em, its wise to come up with sumthin."
A variation on "flaking" is "dropsey." An officer will report that he came upon the subject just as he was throwing the contraband away. The "overt act" of throwing the contraband away allows for the search; however, in the case of "dropsey" the officer actually supplies the contraband. Pileggi (1971) quotes one New York City judge as saying: "Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of policeman. It follows that in at least some of the cases the police are lying."
"Padding" occurs when the officer adds drugs to the already confiscated evidence either to increase the quality of the substance seized and make the evidence more acceptable in court, or to raise the charge from a misdemeanor to a felony after the arrest had been made (Knapp Commission, 1972:91ff). In one case, agents seized several ounces of lactose and a dealer, but no narcotics. A Marquis field test was done on the seized lactose and produced negative results. At that point the officers "sweetened" the seizure so that a field test would render it positive. In cases where drugs are added to raise the charge, often the motive is to use the more serious charge as a threat and thereby gain greater leverage over the arrestee. This pressure can be used to "turn" the arrestee into a "confidential informant," or extort money from the arrestee, or to persuade the arrestee to offer bribes or service to the officer (for example, sexual favors). 15
The Protection of Informants
Informants are at the heart of the enforcement of narcotics laws. Detectives either pay their "snitches" out of their own pockets, or the department provides a "confidential informant" fund. 16 All major federal enforcement allocate money for payment of information (FBI, DEA, etc.), as do most major police departments. At least four consequences issue from the use of informants in narcotics law enforcement. First agencies may have to compete for information, and informants have the option of accepting the best deal. In one instance, a confidential informant who was "working off cases" found that federal agents were willing to pay more and consequently began working for them. In another instance, local agents were unable to get the prosecuting attorney to drop charges against a potential snitch, so the "confidential informant" went to the federal agency and the charges were dropped a short time thereafter. Daley (1975) provides another example: federal agents, in protecting their confidential informant in cognito and in communicado, inhibited local agents from obtaining necessary information to move on local cases. As noted by Skolnick (1966) and Van Maanen (personal communication), and as we have observed, confidential informants often are protected from prosecution on other charges while they are working. That is, as in one case, the confidential informant was caught breaking and entering a home, but the agents "fixed" the charge with the Prosecuting Attorneys office on the basis that the informant was "one of the best." The officer then added five cases to the informants caseload. Secondly, informants may be working for several agents or agencies. This occurs more frequently in areas where interagency cooperation is virtually nonexistent. The informant is thus able to receive payment from more than one agency and, in addition, perhaps keep more charges off his back. Even in the instance where the informant is working for only one agency, a third consequence results. Most informants are drug users themselves, and the agents provide money or drugs in payment. Thus, the agents become a link in the marketing of narcotics. The fourth consequence we have already briefly noted: informants are oftentimes protected from prosecution. As Skolnick (1966) suggests, informants in effect reverse the hierarchy of criminal penalties in that they are allowed to work off charges, receive no penalty, and may even be paid for their services. In cases where officers hope to reach "Mr. Big," the costs of protection from prosecution spiral. Each level of the dealing chain must be granted some measure of immunity from prosecution, or some consideration for turning states evidence. For some of those in the dealing chain, charges will never be filed and thus justice will be obstructed in order that someone deemed higher up can be caught. 17
Sometimes the information desired from an informant is not forthcoming and some "physical therapy" is necessary (Redlinger, 1969). The potential for violence in narcotics enforcement is high; often addicts are roughed up in attempts to gain information from them. Moreover, violence can be used to force informants to engage in illegal behavior such as stealing for narcotics officers (see Knapp Commission, 1972:92) . Agents also have the option of turning the name of the informant over to interested dealers, and can effectively use this threat to gain information. Sometimes, of course, especially on informants who may turn out to be quite unreliable, they do turn the names over. The use of unwarranted violence can also occur during raids. Officers can claim that the dealer "went for his gun" and proceed to blow him away; such a procedure has merits in that the dealer is no longer able to testify otherwise, and in addition the officers make a good case and obtain the rewards. Other features of narcotics enforcement make very likely the unfortunate possibility that agents will shoot other agents in the same agency (e.g., in a shoot-out involving an undercover agent who is indistinguishable from the targets of police bullets), or uniformed officers in another agency may shoot narcotics officers (or vice versa) as occurred in Cali, Colombia in February, 1975, and in West Germany in March, 1975. In both of the last cases, U.S. agents killed foreign police officers in "shoot-outs" touched off by raids.
Violence can be used to restore face after agent errors, as happened in Boise, Idaho:
The narcs hired operatives, at three dollars an hour, to make connections with dealers. Near Sun Valley, agents gave one such operative $1000 and waited outside a bar while he went in, strolled through and left by the back door. Burned on another buy when a dealer passed off powdered aspirin as heroin, agents returned posing as Mafia hoods and retrieved their money at gun point. To support this cover, agents offered to buy guns in the underworld: this sparked a wave of sporting goods-store burglaries in Pocatello. When police figured out what was going on and complained, the narcs accused them of being involved in the drug trade (Newsweek, January 27, 1975).
Licit and Illicit markets have many features in common, buy they differ substantially as a result of the moral intention of the regulatory statutes, the loyalty of those applying the statutes, and the manner of application. We have noted that sellers in licit markets have both legitimate and illegitimate means to influence regulatory policies and action. Sellers of illicit goods and services (such as narcotics) have recourse only to illicit means, and moreover, because of the nature of their incredulity, they ordinarily must focus their efforts on enforcement agents. Hypothetically, then, if illicit sellers could effect control over their markets through higher, more powerful channels, they would attempt to do so. It is critical to understand that the structural features of society, and in particular regulatory agencies and the activities they regulate, dispose specific elements to be exposed to corruption. Agents, thus, are more often placed upon an invitational edge of corruption, and are a major point of tension in the regulation of legally suppressed markets. 18
Our discussion should not be taken as limited to the dramatic instances of corruption in the narcotics field, but rather should be viewed as pointing out areas of corruption that one might find in other regulatory agencies. Since the structural features of both markets and their regulatory-enforcement agencies are similar, evidences of corruption in one should instruct us to look for such features in other agencies and their personnel. The nature of licit markets allows for that corruption to occur at more varying levels than in legally suppressed markets. That is, the same forms of corruption occur and exist, but the structural positions where they can occur appear to be more numerous. In addition, because markets and their goods and services are defined as licit, some areas deemed "corruption" in illicit markets are not seen as such in licit ones, and this bifurcation of vision only serves to point out the structural features of moral intent. 19
Although some of the similarities are quite obvious, we would also like to compare types of corruption found in licit and illicit markets. In both markets, bribery is to be found. The history of American politics is punctuated by pay-offs, bribes, gifts and the like forwarded by legitimate businessmen to regulatory agents. The use of the product is in many instances obvious, and most often is not seen as a case of corruption. That is, members of regulatory agencies such as the F.A.A. often ride in planes; members of the F.C.C. often watch television; members of the F.D.A. often use drugs. We have already noted that in legally regulated markets, it is quite common for sellers to be asked to accept positions in agencies that regulate the very markets they come from. The interpenetration of regulators, sellers and producers is hardly considered remarkable in this country. There is a circulation of elites through, for example, the defense department, military, large armaments, shipbuilding and aircraft manufacturing companies. Furthermore, as Lieberson (1971) indicates, the Senate committees that are supposed to regulate spending and investment in markets are committees comprised of senators from the very states that have vested interests in those areas. 20 Buying and selling of products one is supposed to regulate occurs in both regulatory and enforcement agencies, as does the arrogation of seized property. For example, automobiles seized in raids by drug agencies supply vehicles for many enforcement agents at both lower and higher echelons of the agencies, while such arrogation is a common process in bankruptcy proceedings. The use of wiretaps and bugging, modes of illegal entry and/or surveillance is common in virtually all federal agencies; recent headlines have revealed the use of spying and taps by the Internal Revenue Service, Department of Defense and other agencies. Moreover, private industrial concerns have utilized taps to illegally spy on their regulators. Informants are an inimicable part of all prosecutorial activity and immunity granted to witnesses is common throughout not only courts but congressional hearings. Watergate is only a recent example, but policies regarding immunity are also found in the Internal Revenue Service, the F.A.A., the Armed Services, and in the Department of Justice in civil as well as criminal cases.
- Extensive research on the early years has been done by several scholars, and the reader interested in how the drug problem was socially constructed, how legislation was passed, and how initial attempts at regulation gave way to the enforcement mode, should look at such works as Brecher, et al (1972, Part one); Lindesmith, 1965; Musto, 1972; and King, 1972. One result, however, deserves mentioning primarily because it set up the now accepted linkage between urban crime, poverty, and narcotics addiction. Whereas, prior to criminalization, narcotics users were mostly women who self-administered the drug for a variety of medical reasons, after criminalization males became the primary users. In addition, the social class of the user steadily declined so that in contrast to the late 1800s when use was spread throughout the class structure and even concentrated more in the middle and upper classes, the majority of users today are form the lower classes (this does not, of course, include physician addicts who obtain their drugs in other manners). In addition, prior to criminalization, the average age of a user was between 40 and 50 years of age, whereas today, the user is more likely to be under thirty. Thus, resulting from criminalization and the enforcement of the laws, the patterns of addiction and use changed remarkably. Today addiction is most often associated with poor, young, urban males, usually from one of the other "minorities."
- The literature on "legitimate" versus "illegitimate" markets and their associated regulatory activity is growing. Sociologists have long recognized that police control crime rather than eliminating it. For example, Hughes (1971) has written on "bastard institutions" which provide desired products not otherwise available, and Schur (1966) analyzed some of the consequences of making illegal certain consumatory patterns. N. Davis (1973) has provided an intensive and detailed analysis of the changing patterns of the regulation associated with abortion, and sociologist Gusfield (1963) and political scientists such as Lowi (1969) and Edelman (1962) have examined the symbolic fictions of regulation. In a sense, all regulation is an additional price or value-added cost, and while the cost of regulation is passed onto both the buyer and the seller, more often than not the seller is able to transfer his costs to the buyer. Thus, the buyer becomes the tax-payer. Corruption is a variant on the cost coming as it does, directly as one resultant of the enterprise of morality regulation.
- Associations such as the American Sociological Association and the American Medical Association, also license practitioners and collect revenues for their agents. The agents through their certification attest to the credibility of the licensed persons claims to be what they are and to be selling what they claim to be selling.
- This can be seen through our later analysis to not always be the case. Numerous examples from nations other than the United States will indicate complicity between those who seek to suppress the illicit marketing of products and the sellers of those products. Given the extremely lucrative nature of illicit narcotics, unscrupulous entrepreneurs and power-driven people, whether in legitimate occupations or illegitimate ones, will be tempted. In a society where money is equated with social respectability and power, lucrative ways to make money become extremely attractive, and constraining themes in morality can be neutralized.
- The foregoing analysis operated with the assumption that illicit sellers of narcotics do not sell licit goods and services. This assumption is, of course, not totally warranted. Licit sellers may be engaged in selling illicit goods, and in fact, at higher dealing echelons, this may be a rule rather than an exception. Thus, licit sellers of one set of goods may be able to indirectly use their political influence through these channels to affect the regulations surrounding their "other business." What the nature and extent of effects seller interpenetration may have is difficult to measure due to the relative paucity of data. However, there are several suggestive remarks one can make. In instances where the interpenetration is political in nature, illicit sellers can have direct and enduring influence in the enforcement of regulations and the nature of these regulations. Where mayors or governors, for example, are also sellers of illicit goods or services through illicit organizations or act as middlemen between illicit producers and regulators, the types and kinds of police enforcement capacity are often affected. In some countries other than the United States, the interpenetration between licit and illicit markets and control may be greater. Percentages of the take may be typically to the political structure so that influence will be exerted and the seller can maintain effective market control. Recent cases in this country of government corruption accent the possibility of greater seller interpenetration than heretofore might have been thought.
- Evidence suggests that in America there are no producers of heroin per se (it is smuggled in in a refined form). However, even in cases of producers of other illicit substances, the producers rarely have recourse to influence a higher echelon official unless, as noted in an earlier footnote, this official has "interpenetration" with the illicit market.
- It is not our argument that these are the sole features conducive to the patterns of corruption we describe below. There may be others. However, these are the most important. Insofar as the market features distinguishing the legitimate from the illegitimate markets for illicit substances obtain, and the differences in patterns of regulation obtain, we would expect to find analogous patterns of corruption, i.e., agent-focused. Many Anglo-American societies follow the regulatory model we have described, and would be expected to possess similar corruption patterns. For example, Gabor (1973) reports that Melbourne, Australia narcotics squads utilized blank search warrants. The warrants were signed en masse by a judge and agents could then search the premises of anyone they chose. During or after the search, a name was placed on the warrant. The practice came to light when "following a raid carried out in the usual manner, drug squad officers left behind a folder of papers. On examination the folder was found to contain, among other things, four blank search warrants but with the signature of a Melbourne JP already attached." (Gabor, 1973:20). Other features of a society, e.g., high levels of violence such as occur in Latin American countries, obviously contribute to the likelihood of discovering violence in drug enforcement operations.
- Sykes, in Society of Captives (1958), makes a similar argument concerning prison guards. Caught in the bind of being accountable for maintaining order, yet having to rely on the inmates to maintain order, the guard must make trade-offs with the inmates. Redlinger (1970) offers a similar explanation for the negotiation of order in homes for emotionally disturbed children.
- It may be too, that certain individuals are channeled into being agents and that these individuals are more corruptible than some hypothetical average; this we doubt. For one thing, many police departments work their men on a rotation basis and thus narcotics agents are policemen transferred into and out of sections. Secondly, given the nature of regulation, other officers have the opportunity for bribe-taking, extortion, etc. as is amply documented in the literature on police corruption (Sherman, ed., 1974). Assessment on this proposition would require data most difficult to gather. Among other things one would need detailed life histories of agents that would indicate any and all prior involvement in corruption, and these would necessarily have to be matched against a comparable sample of non-agents. Another way of approaching the problem would be to follow a cohort of "clean" agents through there tenure as police officers noting along the way the temptations to corruption. In either case, the officers, especially those who have something to hide, are not likely to voluntarily subject themselves to close scrutiny.
- King (1972) reports that in 1917, two years after the passage of the Harrison Act criminalizing nonmedical use, "the first narcotic agent was caught and convicted for taking a large bribe." In that same year, Treasury agents, who were held responsible for enforcing the regulations, began seizure activities (previous to this time, agents did not seize large amounts of drugs). As King notes, agents, even in 1917, needed a way to show that they were doing their job, and one way they did and do is to account for their activity in terms of the dollar value that can be attached to what they have acquired:
By 1917 increasing numbers of civil leaders and responsible citizens were calling for federal intervention and strict federal controls to stop the drug traffic. In that year the first catches of drugs were seized by Treasury agents (and Treasury started the deceptive practice, continued ever since by drug-law enforcers, of announcing each seizure in terms of how many millions of dollars the contraband substances might have been worth if they had been sold at maximum prices on the illegal market). (1972:25)
Im sure that there are lawyers who are paying off policemen in some cases. Youll always have this. But this is controlled by the police department because you have the IID (Internal Investigation Division) and the policeman now is making $12,000 a year hes making good money. Ive heard a lot of stories about a lot of policemen and Ive learned one thing if you dont have something good to say about someone dont say anything at all. So I dont carry tales. Some cases are dealt with between the lawyer and the police officer or through other channels, but I think this is really good. I think it is beneficial to the individual that gets busted. If he can pay $300 or $400 to get out of it, good, youre out of it. Thats the type of society this is. This is what was built by other people. We are going to have to realize that it is a good point. Sure, there are a lot of policemen making money on it through lawyers. The reason is that it is an easy dollar and the chances of getting caught are slim. I really believe it is good for the citizen. It may sound fascist but it is good to have a way of something. When you get busted you need a way out. This is the game (1972:235).
[Informants] are listed with the Police Intelligence Division under a code number and usually a code which they have been obliged to sign onto the equivalent of a bank deposit card. Their verifiable signatures are important, because they must sign receipts for money paid them. Each informant is further classified by specialty, and by the area he knows (Daley, 1975:31).
Of course, as the Knapp Commission pointed out, it is possible to create fictitious informants and for an officer to collect the fees himself.
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