UCI law professor says undercover policing creates criminals

By Ben BrazilStaff Writer

Oct. 1, 2020 12:33 PM PT

Undercover police stings aren’t effective at combating crime rates and create criminals out of people who possibly wouldn’t otherwise commit crimes, according to a new article by a UC Irvine law professor.

In “The Dangers of Police-Created Crime,” Katie Tinto describes how undercover policing has evolved from focusing on larger crimes to low-level offenses, which tends to “ensnare” vulnerable people.

“Is this effective and cost efficient policing?” Tinto said in a phone interview. “We suggest the answer is no, that we are actually creating criminals. It’s not at all clear that these individuals would commit these crimes were it not for undercover police officers presenting the opportunity.”

Tinto said that rather than targeting high-level drug kingpins, officers are more likely to run a sting operation on vulnerable individuals like a homeless drug addict on Skid Row.

Undercover policing was born of the idea that some criminals are very hard to catch, whether that be a politician taking bribes, or somebody high up in a drug network. Yet, the approach has been “watered down,” Tinto said.

Rather than targeting these high-level criminals, police tend to go after people from vulnerable populations, like homeless people or drug addicts.

“When you approach someone who is drug addicted or down on their luck or recently out of prison or needs money and you offer them a tempting thing, people say yes,” Tinto said.

“They are not going into the private law firm and being like, who wants to buy coke?”

Tinto partnered with the nonprofit Justice Collaborative Institute for the article.

“Inviting people to commit crimes is fundamentally at odds with what we expect police to do, which is to focus on credible and serious public safety concerns,” said Dawn Milam, senior legal counsel for the Justice Collaborative Institute. “Firefighters do not start fires just to extinguish them, and police officers shouldn’t lure desperate people into breaking the law just to arrest them.

Tinto said this type of policing doesn’t have any meaningful impact on crime rates and puts these vulnerable, low-level offenders in jail for long periods of time.

The financial cost is significant, especially during the pandemic economy. Taxpayers end up footing the bill for the costly sting operations and long-term jail sentences.

Tinto said because the undercover policing doesn’t primarily target high-level criminals, law enforcement isn’t going after the root cause of the crime.

“Spending all that money doesn’t make us safer,” Tinto said.

Law enforcement agencies use undercover police stings because it’s an easy method to make arrests and get convictions, Tinto said. It’s a way to boost the numbers.

To the layman, entrapment would seem to be a rock solid defense against being talked into a crime by a police officer.

But that’s not the case.

“Entrapment is a very limited defense,” Tinto said.

The suspect has to show that they weren’t predisposed to saying yes to the crime offered by the undercover officer. Tinto said that under most legal standards, somebody is considered “predisposed” if they have a criminal record.

The suspect could have committed a wholly unrelated crime and still be considered predisposed. Most jurisdictions hold that a suspect cannot be entrapped if they are predisposed.

Tinto said undercover policing should return to its traditional state, when it was limited to catching high-level criminals.

“When you know somebody is committing a type of crime and traditional methods don’t allow you to apprehend that individual, then an undercover policing technique might be necessary,” Tinto said. “But simply going around and tempting vulnerable people, people down on their luck, people addicted to drugs, people who need money, I don’t think that is effective policing.”

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UCI law professor says undercover policing creates criminals

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