S1: This ad free podcast is part of your Slate plus membership.
S2: Before we get started, I want to thank the Whiting Foundation, whose public engagement fellowship has made this season possible. And to Alison or Holloran and Scottie Voyt, whose ongoing patronage has made every season of hyphenation possible, seem from lately. I think we all love stories that subject people to the power that they wield over others. Like what if you audited all of the tax collectors or gave a surprise exam to every teacher in a school? I think my favorites are when cops get busted for illegal activity. The stories have it all. The betrayal of public trust and unsympathetic villain, but also a sense of vindication that the justice system can take out its own trash. And this is important because I think deep down, we have this worry that being a cop makes you above the law. And that’s a scary thing.
S1: My name is Robert Bryan. I’m retired captain from the Neosho Police Department.
S2: Robert Bryan worked as a lieutenant for the NYPD Internal Affairs Bureau in Long Island City, Queens. When a police officer is charged with illegal activity in New York City, the charge is given a log number and then forwarded to a district internal affairs office. It’s called a C case. That’s also the name of Brian’s book, a memoir about his time in Internal Affairs.
S1: I.B. had this sort of this computer system that if there were enough of the same type of allegations that he’d been made against someone, even if they were never substantiated, they’d say there’s gonna be a self initiated case on this because there’s just so many cases against this person. This guy was the poster boy for this type of case.
S2: This officer, we’ll call him Officer Pottsy, was a bit of a hothead. He had a list of allegations like pulling his gun on someone who cut him off on the road, drag racing up to 100 miles an hour on residential streets and manhandling people in fights over parking spaces. So Robert Bryant ordered up what they call a lifestyle on Potsie.
S1: Do you want to see where this person goes and what this person does? Does he go to church? Does he shit home and never come out? Does he hang out in areas that are known drug locations? That’s really developing a lifestyle where he goes what he does.
S2: Right. So it’s essentially it’s surveillance you’re following. It’s surveillance. Yes. Officer Pottsy turned out to be a bar hopper. He’d go out drinking, telling NYPD stories to bar patrons until the wee hours of the morning. And there was a pattern to all of his public outbursts. They all involved him getting angry while driving. So Brian and his team decided to set up a sting.
S1: We just needed some way to get this guy pissed, to put it, not to piss him off, to put him in an environment that he could become pissed off. That’s what’s the difference between that. Our guy was never going to go up to him and say, hey, I don’t like your face. It was just going to be having a car parked where it would be difficult for him to move his car and see what he would do in that case.
S2: This was Brian’s idea they’d follow Pottsy to a bar. One of the guys on the team would go into the bar and drink, watch Pottsy interact with him. Keep an eye on him. Another guy would pretend to be a cab driver. They rented a cab because what would Angara NYC driver more than a cab and they park the cab in such a way that it boxed Pottsy in. Then the officer pretending to be a cab driver would be standing at a payphone, looking really busy and unable to get off of the phone. Bryant himself would be in an unmarked car watching the whole thing from across the street.
S1: The setting was really good for us because right across the street from this pub was a restaurant under renovation.
S3: So there was a big container. His car was parked directly in front of the container. So there was no car going to move away back there. And we were able to get a cab right in in front of him. And as the night went on, every other car along the curb in front of the cab left. So the only vehicle on that block was that cab blocking me in. So if that wasn’t going to be enough to take them off, I don’t know what would.
S1: So that’s 4:00 in the morning now. Yeah. Bar closing time. So so he comes out. He comes out. He got in, turned on the engine, and he halfway gets out of the car. He’s yelling, hey, this, George, this yours. And, you know, our guy is doing exactly the right thing. He’s sort of waving them off with his hand. Well, we had told our guy on the pay phone was that if he started coming towards you, we want to be on the run because we didn’t want any type of a physical thing there. But he got back in the car. He closed the door. And all of a sudden the cab started moving.
S3: And there’s smoke coming from everything he had just gone in and just started pushin the cab down the block. And it’s in park and it’s dead. There was nothing in front. He pushed it a full block. Meanwhile, there’s the bar was closing. So there was a crowd that was outside and they were all cheering and yelling NYPD. And and he he pushed it depth that the offender came off. And then he spun around and he came back. He made like a victory lap in front of the pub and then took off into the night with the with with pieces of the cab all over the place. And so you guys nail them. Yeah, and at Dow is easy. I mean, some like that. There’s no need to do anything, right. The next day, he was actually arrested by detectives. We transported him to the precinct in Nassau County for criminal mischief.
S4: From Slate. This is hyphenation philosophy in story form this season. Crime and Punishment recording from Vassar College. Here’s your host, Barry Lamb on today’s show.
S5: We’re going to look at when we do. And when we don’t subject police officers to the same rules that they apply to us. Last week, we looked at police discretion. And when officers attempt to give us a test for proper and improper uses of discretion in a liberal democracy. This week we’re going to look at how much discretion police should have in the first place. Because if you’re in charge of enforcing the rules, you’re also in charge of what you can bend them in your own favor. One philosopher and former law enforcement officer has been thinking about this a lot, and he’s concluded that he doesn’t much like bending the rules at all. In fact, some of the hallmark tools of police investigations stings, undercover operations, informant deals. He thinks they’ve gone too far.
S6: Hi, my name is Luke Hunt. I’m an associate professor of criminal justice at Radford University.
S2: Luke Hunt is another one of these philosophers I found whose work is based on his previous experiences in law enforcement.
S6: I wanted some kind of adventure. I wanted to do something exciting. I settled upon this idea of FBI special agent and I went to Quantico and I did my training and the FBI as my first field office sent me to the Charlottesville, Virginia, what they call resident agency. There were five agents. We covered about eleven counties. So I did investigations of gangs, drugs, white collar crime, crimes against children. I was out on bank robberies.
S2: Hunt left the FBI after seven years. His last job was supervisory special agent working at the National Security Branch. He went on to get a in political philosophy at the University of Virginia. When you look at all of the values of a liberal democracy that you want policing to advance, one of the most important has to be the rule of law.
S6: Governance by legal and moral principles, as opposed to arbitrary decisions by government officials. If you think about governing by the rule of law, you can think about it compared to, say, vast discretion. Too much discretion can pervert law and can pervert policing. Where I think this is the most pressing issue is when you think about how police had this tremendous discretion to deviate from the law in a officially sanctioned way. So every day the police had the ability to break all kinds of substantive laws as a way to promote their law enforcement role. I think when you look at how wide spread that practices, there’s certainly an argument to be made that we’re no longer governing by rule of law principles, but rather were governing by this very, very extreme amount of discretion to deviate from rule of law principles.
S7: You’ve spoken about it as though it’s kind of obvious to all of us that they break the law all of the time in the context of policing. But it’s not obvious to me. I would have thought that the thing that they did was deceive sometimes, but I would have thought that that stuff was legal. Like, tell me give me give me some examples of what you have in mind in the FBI.
S6: This is called otherwise illegal activity. It’s so common. It’s almost comical. All you do is you fill out a form that your supervisor will sign and that allows you or an informant to break actual laws, whether that be conspiring to do certain acts, whether that’s selling drugs, selling some other sort of illegal contraband. You get permission to break federal and state laws. It was quite easy to get that permission in the FBI.
S8: And I think when you look at the local and state levels, it’s even much easier if your question is whether the police are above the law. The answer is that it’s complicated. Most of the internal affairs investigations the robber Brian told me about, like with Pottsy, concerned police officers in their extracurricular activities where they’re subject to criminal law, like any other citizen on the job, they’re subject to corruption investigations. Internal Affairs regularly plants money and valuables around the city to see if officers on a call end up pocketing them and for police on patrol. There’s a rich history of civil rights litigation and a Fourth Amendment setting up legal constraints on their activity. In contrast, four investigations sting and undercover operations are subject to almost no judicial review or oversight. Prosecutions of officers for illegal activity during these operations are almost non-existent. Decisions about how and whether to engage in these operations are made almost completely administratively at the discretion of police, and they give license to law enforcement to violate all manners of statutes that citizens aren’t allowed to violate under any condition. There are many different concerns about the rule of law that Lou Conte is expressing. One thing not to like about otherwise illegal activity is that as citizens, our goals are always subservient to the law. Well, for the police, the law gets to be subservient to their goals. I’m sure a lot of us can make really good utilitarian arguments for why violating some laws are just better overall for US and society. It really isn’t the interest of a business owner and their community to hire and shelter undocumented immigrants. It really is in my best interest to drive 90 miles an hour to get home to my child late at night. But none of us are allowed to make those arguments to law enforcement, much less act on them without legal consequences. But the police are allowed to make these kinds of arguments for law enforcement goals. They’re doing otherwise illegal activity, but it advances this aim of theirs to stop even more illegal activity. Their actions, their goals, their people are exceptions to the rule of law. And having any exceptions highlights that not all people are equal under the law. A central tenet of a liberal democracy. A different concern is that discretion itself is incompatible with the rule of law. This concern isn’t about whether discretion generally leads to good or bad things or even that it’s used selectively to break the laws themselves.
S9: The mere power to use discretion is something to be worried about. No person should have this kind of power in a liberal society when it can be avoided. Umpiring in sports is a good analogy here. You’re supposed to be playing by the rules in sports. But there are also umpires and judges that enforce the rules. And there is more discretion in some sports than others in tennis. The rules that if a ball even so much as touches a line, it’s in, even though that’s the rule. It used to be that judges and umpires have the final say on whether a ball is in or out. It was a rule enforced completely on discretionary calls. The calls determined the facts. That’s not true anymore. We have instant replay technology that is to one tenth of a millimeter accurate. So now the facts can overrule the judge’s line. Judges and umpires are subject to the rules of tennis. As the players. They judge the lines. They don’t determine the facts about the lines. And this is better. No person has power over the rules and the rules do the work across all tennis matches, balls and strikes in baseball are a different story. At least at the time of this recording in 20/20, a plate umpire has full discretion to call the balls and strikes. Sure, they can’t be egregiously bad. If they make obviously bad calls long enough, they’ll be fired for incompetence. But still, what they say goes a ball is the ball. If that’s what they say it is, they can’t be overruled. And if you argue long enough with them, they have the discretion to kick you out of the game. Having a problem with vast discretion as being inherently incompatible with the rule of law is like having a problem with baseball umpiring and wanting it to be more like calling lines tennis. You don’t want anywhere for the police to determine what is just an unjust breaking of law. You want the law to be able to overrule police, but it can’t be all bad. There are so many crimes that without being caught yack, that would just be impossible to prove. And so a certain class of criminals would be de facto immune from prosecution.
S7: Why is it that contrary to the rule of law also I put out a Google alert months and months ago on sting operations just to see what mostly comes in. And what mostly comes in is child pornography and child molestation kind of stuff. So when I imagine cases like that, I’m imagining like, good, you know, I have exactly what I want sting operations to be. That’s not the kind of thing that you have a problem with.
S6: Or do you, if you’re going to break the law to enforce it in these sting operations? I think it should be limited to certain cases. One constraint would be a situation in which there’s some sort of emergency scenario in which life is at risk or some sort of a serious bodily injury. And I think in many of the cases where you’re talking about crimes against children, that would certainly qualify. The concern I have is you have the police getting very creative. And I’ve been involved in situations like this. And you can construct these very elaborate scenarios to ensnare people. And you get to a certain point where you think, wait a minute, should this be the focus of our efforts and our resources? Should we be putting informants and undercover operations in a situation such as this when there’s really no risk on the line in terms of life or bodily injury? Why are we trying to buy and sell drugs on the street to ensnare kids in that way? When that is not a priority in terms of protecting some sort of national security interests, protecting some sort of life, I’m not sure how to think about the issue.
S10: Is the problem that police shouldn’t have discretion to engage in otherwise illegal activity or that they should, but there should be appropriate tests on legitimate and illegitimate uses of it, like we talked about last week. It’s one of these ongoing problems about whether you want to stick with principles or with results. Lou Conte likes the principles. Police don’t deserve exceptions. The rest of us don’t have. There’s a principle and you don’t violate it unless there’s an extreme circumstance. But I like results. It’s good when undercover agents bribe a corrupt official or. Crooked cop and then bust them for it, but bad when they bust kids for buying joints. Forget about the principle. Let’s just figure out good priorities and bad priorities and pursue only the good ones. But there are deeper concerns about granting so much discretion in police procedures, having the ability to bring charges or dismiss them at well. Having the ability to permit one crime while enforcing others gives the police enormous powers to bargain and threaten the civilian into submitting to their bidding, makes that power in with a few frightened kids. And you have an entire underground system of crime and punishment.
S2: The term queen for a day refers to a proffer agreement. It’s when you get someone on a crime but agree to go easy on them if they cooperate and help you get someone else.
S1: When you have the blessing from an assistant district attorney that may potentially be prosecuting a case like this, you’re able to go swoop up these individuals off the street, tell them, look, we know what’s going on. You’re willing to testify as to what actually happened here. You’re your queen for a day. You’re off scot free. If not, you’re going to be pulled into this with as much culpability as him.
S2: Bob Ryan, use these agreements a couple of times in a case he investigated for internal affairs in the late 90s.
S1: The police officer was off duty and had been rear ended at a red light by this elderly gentleman. And it had been really nothing but a fender bender.
S2: This officer who we’ll call Noonan father series of suspicious claims with the auto insurance company, the company see that Newton was a cop, forwarded all the claims to internal affairs.
S1: This officer had made claims that he had so many things in his car, a t shirt from Japan, a priceless t shirt, a 27 inch color TV and VCR, a nine hundred dollar Superman wristwatch.
S2: He was apparently wearing during the accident.
S1: He had a leg of lamb listed that he wanted to be paid for.
S11: He charged the insurance company for the installation of air conditioning in his home on the grounds that he couldn’t move the window units in and out because of his injuries. But it was two of the priciest claims that caught Bryant’s eye.
S12: He needed to pay a home health aide to gibbons’ sponge baths several times a week. And then he also had broken up with his fiance, Chaib, because of this accident. He could no longer perform sexually.
S13: Newton was charging the insurance company one million dollars for the breakup of the relationship. The claim included a signed three page affidavit from the ex-girlfriend detailing their sex life before and after the accident. It wasn’t possible for Brian to get nude its medical files to investigate the fraud, but he thought he could look into the sponge baths and the ex-girlfriend.
S1: Turned out that he had worked in Queens Central Booking, which was every borough has their own area where when arrests are brought from the precinct, they brought into a central location within the borough. And the home health aide that gave him the sponge baths and his fiance say who broke up with him. Both turned out to be civilian police administrative aides who worked with him one at a time on different days.
S2: We got these two young ladies coming home and Brian offered both of them a queen for a day. Both women cooperated right away.
S1: The one of them had some type of certificate that she had been a home health aide. I never went to his house. She said. I just. She told me, give me some money. If I said that, I said I would. And the same thing with the other one was in no relationship with him. He told me that I get some money. If I just said that I used to have a relationship and that it broke up. It was amazing how they didn’t realize that there was any problem with this.
S2: The crime technically took place in Nassau County on Long Island and not New York City. So, Brian, get all of the signed confessions and the rest of the evidence he had about Newton’s insurance fraud and took them to that Nassau County D.a.’s office to press criminal charges.
S1: Nassau County just looked at it and chose not to prosecute. So once the criminal aspect is gone, then department charges are filed in this dish offshore and getting fired.
S14: The Newton case is another instance of justice done with a proper use of discretion. It doesn’t seem like anything could be wrong about the use of queen for a day agreements and criminal investigations. After all, the alternative would be to prosecute everyone who committed a crime. You could just interrogate your way to a confession and then press charges for fraud on everyone. Being a stickler for the rule of law. Doesn’t seem to lead to a more just outcome in this case. And yet the underlying principle allowing Queen for a day agreement’s discretionary use of leniency in exchange for cooperation underlies one of the most problematic violations of the rule of law in covert police procedures.
S6: I think the topic of informants. That’s the one area that this sort of alarmed me the most. When I was in the FBI.
S15: My name is Nick Tyber. You know, I’m a Midwesterner, I grew up in Waverly, Iowa. You know, life was great and we really had a great family. Youngest of seven spent my youth, my summer days, you know, playing on the golf course, going to the pool, took school seriously. Top top 10 in the class, you know, and graduate with honors, too. It was kind of a fateful time. Fourth of July celebrations were commonly a a time when high schoolers, you know, would partake in in various activities, usually with hating to, you know, alcohol consumption. That was the norm. And in rural Iowa at that time, I was 17 years old. This was just part of high school life.
S16: The actual event happened on July 3rd. We were at a house party at that time. And in leaving the house party with another person, you know, I was obviously intoxicated and got into an accident. I was driving. Yes. I was driving and probably didn’t get more than a half a mile away from that from the house and in turn blindly into a tree. The license plate was OK, but the car was totaled. It was me and a female at that time. Seatbelts weren’t worn. All too frequently. So, yes, I was thrown into the steering wheel and she was thrown into the dash. Sadly, you know, I was taken away by ambulance. And at that point, you know, I have I have no recollection of that. You must have had a concussion at least, right? Probably did. I can remember my head was wrapped. My mind was wrapped. I don’t recall actually going home. I call being home, waking up to my alarm clock to go into work the next day. And I had opening responsibility for the sandwich shop that I think I probably rode my bike there because the car was totaled. Of course, I believe that I was, sir, probably the next day with the infraction, you know, with notice to appear in court because it was OWI or operating while under the influence and fractioned. So there was a meeting and I can recall it being in the basement of the old police station. You walk down the stairs, the door gets chateau’s, probably a witness room of some kind. You know, it was cold. That chair was hard and my hands were sweaty. And I was probably shaking. Teeth were chattering. You know, it’s just I don’t even remember if my attorney was present. So who’s actually there? What are the local police officers? I’ll say Officer G. OK. As well as, you know, another agent of some kind. I don’t know if that was a DEA agent. I don’t know if that was the county attorney.
S17: We have informants. Some people want to work for law enforcement because they want to be a patriot. Some people think it’s cool because they’re like a spy in the movies. What I see that’s most troubling to me is a very common scenario in which the police compel an informant to do certain operational acts because they have a tremendous amount of power and leverage over the person. Now, the classic example of that would be when police have evidence that a person has committed some kind of crime and they say, hey, look, we’re willing to consider giving you a break, if you will do this thing for us, at least as it was presented to me.
S16: You know, you’re faced with jail time. You’re you’re faced with a serious fine, or you can work toward a deferred sentence where, you know, it never appears on your record, which was, you know, very important to me. Again, it’s a it’s an honor thing. But you have to do these these activities, perform these these tasks.
S17: In many cases, you might say that’s just a free bargain. There’s nothing wrong with that. You know, it’s a very libertarian approach. But in my view, this is far from a free bargain. This is a situation which would rise to what you would call in contract law, an unconscionable contract.
S16: I was 17 years old. I was just in a pretty major accident. I’m going to college. You know, this was a pretty stressful time. And you wanted to do, you know, maybe take the path of least resistance. You know, from what I recall, it was it was a split second decision where, you know, it was either you’re going to go this way or or or that way through the justice system.
S17: When we think about a valid concern morally, but binding consent and philosophy and certainly in law, we think, well, you need to have a real choice in the matter. And in many of these cases with informants. Here’s what the choice looks like. You can either engage in this very risky, very dangerous operation on our behalf, which, to be honest, could result in your death or serious injury, or you can spend a long time in prison. That’s basically the choice. So that’s one concern procedurally. The other concern is just the lack of knowledge. You have someone who is untrained in many cases and you’re asking this person to engage in a dangerous act. Were there all kinds of risks that they could have no awareness of? On the other hand, the police have this awareness. They have this knowledge. Why? Because they’ve been trained that way. They know what it’s like to go into undercover operation. They know that things can go go wrong.
S16: I had never been in this kind of trouble before. Probably deserved it. And bear in mind, this is Waverly, Iowa. So it’s 10000 people at that time in 1995. I can’t say that drugs or, you know, methamphetamine, which is a common rural drug today, wasn’t even that prevalent in Waverly. Kids just aren’t exposed to this.
S2: The term confidential informant is a real misnomer for the pervasive practice of recruiting young men and women, often under age, to engage in undercover operations on behalf of the police in the drug war. Confidential informant sounds like police are recruiting foot soldiers in the drug trade who then provide information or testimony to bust someone. But that’s not what it is at all. In all of the prominent cases that end up making the newspapers, their high school or college kids who are busted on something, usually drug possession and then who are threatened with long sentences unless they use their youth as a cover to infiltrate some kind of dealing ring known to the police. And if you think about it, that makes sense. Law enforcement officers are older. A 17 year old boy or girl doesn’t look like a narc. And it happens with law enforcement at all levels, from school police to local police and federal agents. And Nick, Tiber’s case, there wasn’t even a drug dealing ring. The police wanted to target a local stoner.
S15: He was a veteran. You know that the most peaceful, calm person, he was known as being a, you know, a marijuana user. I don’t even know if there were other drugs involved, but also very friendly in the community and probably, you know, shared this with other people that were, you know, interested in, you know, partaking very open minded, I guess is the best way to describe the individual. But how much did you know him at the time? I only knew him by association of my older brother. He was probably 20 years. My senior had maybe one or two interactions. But it’s quite known that, you know, this was his house. It was kind of a haven for intellectual thought. OK, where where people would maybe sit in a circle and talk about Thoreau or I think Jack Kerouac was kind of the In Vogue, at least his books on the road. I can remember that just probably one of the smartest people in the community, obviously a philosopher in this cold room with those officers.
S7: Gee, and whoever it was, the county attorney you were tasked with in the next two months to provide actionable evidence, essentially had to be done in two months because I was going to college in Iowa City two hours away.
S15: And, you know, they didn’t have the plan or anything of that nature. I had to set it up. I had to go collect information. Oh, wow.
S2: Gosh. Wait, wait. So they didn’t have an operation in mind. They just said it’s like giving you police work.
S15: It was to find and discover actionable evidence. OK. And I do recall putting on a wire, I believe, and creating a superficial meeting through really acquaintances that knew this person, none of which could know, of course, what I was trying to do, you know, going in. And I put all those people in that situation. That’s when it became just an awful violation of trust. Why are we targeting this this peaceful person that’s never harmed anyone in their lives? As far as I could tell, this was the boogey man, OK, in the minds of of law enforcement. And if we if we can’t get the big, you know, criminal enterprise back, we’re going to go after anybody that we can so that we can, you know, get a score.
S2: Luckily for Nick Tyber, the police’s target and Waverly, Iowa, was not a danger to anyone. That doesn’t make it better when the target is not a threat. Why are you forcing some kid to conduct covert operations on your behalf? And why would you need to do that if the target is a threat? There have been a series of botched enforcement operations in the last 10 years that follow the pattern of Nick Tiber’s story only with far worse results. Rachel Hoffman in Tallahassee, Florida, in 2008 was arrested on marijuana and ecstasy possession and threatened with very serious charges in exchange for leniency. She agreed on doing a thirteen thousand dollar drug and gun deal in a sting operation set up by the police. The police lost track of her and she was shot in the head by the dealers. Andrew SADIC in North Dakota had a similar story. He was threatened with 40 years. So instead he started buying drugs for the police at North Dakota State College of Science. Andrew disappeared and was found in a river with a gunshot wound to the head and a backpack filled with rocks. Andrew’s parents think he was murdered. The police say it was a suicide. Andrew’s way of trying to get out of his informant deal. His parents are still fighting the police in lawsuits. To this day.
S6: I think if you look at the sort of harm, the risks that you’re subjecting a person to in this situation, it really amounts to what you might describe as a form of legal punishment, because primarily at the end of the day, it’s a way for the informant to work off their misdeed, their wrongdoing. My problem is that we get there through this vast discretion, which I think deviates from basic rule of law governance. And it’s also this kind of punishment that’s really outside the normal judicial process. Right.
S18: Because the idea is that if we’re going to think of the legal system as determining culpability, why what we’ve put in place is something like presumption of innocence trial.
S7: Right. It’s like sentencing where there’s like, you know, people testifying as to a possible date. What you’re saying is that the police, in their discretion is bypassing that entire system.
S6: Yeah. And in another way to put it and maybe a little bit unusual way to put it. I agree with all everything you said. Also, people have a right to legitimate punishment. They have a right to punishment.
S17: But in a case like the use of an informant, you’re sort of working off your crime, your punishment in this sort of off the books way to sort of mitigate your wrongdoing. You’re right to being punished in a legitimate way is sort of being denigrated.
S11: In the case of informants, I don’t think Hunt’s rule of law. Concerns are about the police breaking the laws at all. In fact, it’s not about the law. It’s about the principles underlying why we want laws in the first place. We don’t like it when being a cop or being rich or being white gives you a special path through the criminal laws. The moral principle underlying this is that we’re a society of moral equals. When law enforcement uses leverage over an informant to offer them alternative paths through the justice system. It places individuals in different moral positions depending on their usefulness to the police. We also don’t like it when the state uses leverage. It uniquely has to force you to do something in their interest. But contrary to yours, the underlying moral principle here is just Conte’s categorical imperative. You don’t treat people as mere means. What Luke calls the right to legitimate punishment just follows from these moral principles. Insofar as the state is going to subject you to punishment, it has to do it on the assumption of the moral equality of its citizens. And in a way that doesn’t treat you as a mere means.
S15: Yes. In the next two months. You know, despite that, the tremendous pressure, I actually made an agreement myself, I’m not going to do this. And so at that point, it became a waiting game. At what point do I get charged? Because there was threats, you know, along the way, they told me, OK, if you can’t provide the evidence against this person, go after anyone, you know. OK. So they knew there and had me. I wanted to get out of Waverley. That was my goal. Without providing any harm or any more shame to my my family, cause I went to Iowa City as early as I possibly could. I wanted to get away from this with the order that, OK. When you’re in Iowa City, provide evidence. So. Oh, wait, you’re kidding. No. Now, this this followed me. They have you. They have you. And there’s there’s no out clause.
S7: We will wait. So. So what started as an individual that they wanted to target so that you could wear a wire, go into this guy’s house and see if he’d sell you drugs or something. Turned into wherever you’re going. Find actionable evidence about drugs? Generally, yes. Yep.
S15: So I was just an extension of the police force at that time with the duty to provide evidence or else.
S9: In his first year in college in Iowa City with his informant deal hanging over him. Nick withdrew from friends, started drinking. His grades dropped.
S19: He got into more trouble with the law. Public intoxication, minor possession of alcohol, possession of a fake I.D.. Eventually, he was called into the ombudsman’s office and threatened to be kicked out of school. So Nick made a decision he would turn himself in. Take the full sentence. He was threatened with in the first place. Take the mark on his record. The sentence turned out to be a weekend in jail and about five thousand dollars in fines.
S15: And at that point, it was done. It was probably the most relief I’ve had in my life because the weight of the criminal justice system was off my shoulders. I paid my fine to society. And, you know, now at Rassam, my record for the rest of my life. But, you know, that’s something that I own.
S2: Have you encountered the people involved in all of this?
S15: You know, since it all went down and it was over, I have you know, I’ve encountered my attorney, the judge, and I don’t fault anyone in this situation. You know, I knew the daughter of Officer G. It’s a small town. And, you know, it’s just something that I’ll never speak of to them. I don’t think of them any less. You know, they’re all honorable people. They were just tasked with being part of a dishonourable system.
S20: Nick Tyber is a city councilman in Cedar Falls, Iowa. You can find him at Nick Tyber dot com. Lou Conte is now assistant professor of philosophy at the University of Alabama. His book is The Retrieval of Liberalism and Policing. You can find a link to both on our website. Let me end with one last story from Internal Affairs, which brings our two threads together. I just want to give a warning here. This case involves a graphic description of a sexual crime and it’s not appropriate for young children and may be upsetting to others. If you want to skip it, you could end the show right here. There was a pretty egregious case of an internal affairs office in Fort Wayne, Indiana, using an informant to try and bust another cop. Fort Wayne police had busted a woman named Amy for a cocaine offense. They threatened her with 40 years in prison. Or she could do an operation with. They wanted to set up a sting on a cop named Nathan. Amy was to offer Nathan oral sex in exchange for money and then they would bus Nathan for soliciting a prostitute. Internal Affairs instructed Amy to perform the oral sex on Nathan, and they gave her a napkin to spit into. To preserve the evidence. Amy did as she was asked, and Internal Affairs arrested David on the charges. Amy was then so disgusted by her actions that she didn’t cooperate any further. Both she and Nathan sued the police department for civil rights violations and lost. It’s one of those few cases where someone asked the courts to draw a line that police shouldn’t be able to cross in undercover sting and enforcement operations. The courts decided that there is nothing in the Constitution that draws the line at making a woman perform oral sex in a sting operation in exchange for leniency. They wrote that all informants agree to risky activity in exchange for leniency. This is just another such activity. If they don’t like it, they can leave the offer. So I decided to ask Robert Bryant, who worked at Internal Affairs all those years ago, what he thought of the case.
S1: Way too far with that. I would have never done it. I would never say something like that.
S18: Now, the interesting thing about this kind of case is that the courts actually found in favor of the police department. So the judgment that they went too far is actually a professional judgment of yours. It’s not actually like a legal judgment because it turns out legally. The courts actually thought it was OK. Now, that’s professional sense of ethics that you have, that it’s too far. What do you how would you articulate why that’s too far in this case to somebody who’s like, say, going in I happy or something like that?
S1: She I would never have even brought that, like, to my commanding officer saying, hey, captain, here’s an idea I have Litch, let’s see if we can get our informant to perform oral sex and store the evidence. I would never even have gone think of going to someone with an idea like that.
S18: So that’s so clearly over. Yes. OK, what’s fascinating to me is just what prevents a police force, a particular unit, IAB unit from crossing the line versus not when the law, it seems like in from this ruling because rulings have precedents, say that you can go about that far.
S20: Right. I just I’m I’m curious about what restrains the exercise of power like that.
S12: I think a lot of it has to do with a person’s own ethical and moral line where there are things that you just know far, right near things you know are wrong. And there are certain things you don’t need some type of a law book to tell you that that’s just not that’s just not a good thing to do.
S20: Robert Bryant, retired NYPD police officer. His book is C Case The Unlikely Journey from Transit Cop to Internal Affairs Bureau. Commander.
S4: You can find a link to it on our Web site, Hyphenation is written, produced and edited by Barry Lamb, associate professor of philosophy at Vassar College. Editorial director for Slate podcast is Gabriel Roth, senior managing producer for Slate podcast. It’s June Thomas, operations manager for Slate podcast is Ushe Solutia, editor for Slate.
S20: Plus it’s me Child to our new executive producer for Slate podcasts. Is Alicia Montgomery. Special thanks to carry fake door Scott. Evelyn Arris Bat, Eileen Chao, Liz Weekes, Kermit Cole and Jonathan Guéret, whose patronage have made this episode and this season possible production assistance this season provided by Noel Mendoza.
S4: Visit Hi-Fi Nation dot org for complete show notes, soundtrack and reading list for every episode. That’s h i p h i nacion dot org. Follow hyphenation on Facebook and Twitter and at the web site for updates and stories and ideas.