Judge Wallace is right. As far as he goes.
But his relatively straightforward opinion doesn't address at all what I think the central issue is here.
It's true that the police can use unsavory confidential informants. It's true that the police can give them a good deal. It's true that the police can continue to use even informants who continue to commit crimes during their "use" by the police. All true. None of this -- even together -- makes the government's conduct sufficiently outrageous to violate the Due Process Clause. At least in contemporary society. We're used to it, we're okay with it, it's fine.
But what Judge Wallace's opinion doesn't highlight is the fact that this is a reverse sting that set up fictional robberies of purported stash houses. So on the one hand, you've got an undisputed criminal who's facing an 115-count indictment, and life in prison, for actually dressing up as the police and battering down doors and using AK-47s to rob drug dealers by raiding stash houses. That guy gets . . . wait for it . . . four years of probation. On the other hand, you've got someone -- the defendant -- who may not have ever in fact raided a stash house, but who nonetheless is persuaded to do so by a fictional raid set up by the informant. That guy gets a boatload of time in prison. Even though there were, in fact, no drugs, and no raid.
So, to summarize: Actual Invasions = Probation. No Factual Invasions, Only Pretend = Prison.
It's that anomaly that seems stark. Same crime. But one's real and one's fake. Yet the former not only gets a benefit, but essentially a free pass. Just so we can stop fake crimes that would never have transpired in the first place but for the decision of the informant, with the active assistance of the government, to set them up.
I understand giving a defendant a deal in order to testify against others. That's the nature of the beast in the modern era of plea bargaining. (I admittedly believe that, at some point, history will not judge this practice especially favorably. But that's another issue.) You're not going to get a court to strike it down.
But at some point, especially with fake crimes, isn't the contrast in fact pretty outrageous? Especially as the crimes get -- as here -- more severe?
Let's change the facts just slightly. Make it murder. The informant has killed twelve people instead of previously raiding twelve stash houses. He's facing (as here) life in prison. He agrees to go to bars and pretend to be a hitman, chatting up patrons who seem unsavory. He stumbles across someone who chats about how he hates his spouse, the informant volunteers to kill her for $10,000, the patron agrees, and the police arrest him. Patron gets 50 years in prison; informant goes free.
Wouldn't that, in fact, be outrageous? I think we should rightly go ballistic about that. Serious crimes. Same crimes. One real, one fake.
That's incredibly close to this case. The only difference being that the informant's offenses here involve a huge (and deliberate) risk of murder rather than -- fortunately -- actual murders.
So that's the part that's the at-least-somewhat-outrageous part. The nature of the crimes and the fact that only one side of the equation involves "real" ones. The side that doesn't get punished.
That's the part that Judge Wallace's opinion doesn't really discuss. Which gets short -- actually, no -- shrift.
Which is not to necessarily say that the Ninth Circuit should have reached a different result. All of us are, at least in part, a product of the era in which we live. Including but not limited to judges. Maybe the social and judicial consensus is that once in for a penny, we're in for a pound. So there's no qualitative difference at all between fake murders, fake stash houses, and fake jaywalking. Informants can set up all of the above. We are okay with all of it. As well as the resulting deals.
But when we write opinions, we should deal with the hard stuff. We should recognize -- and address forthrightly -- the real arguments on the other side. We shouldn't try to make things look simple when the reality is a lot more complicated. When things are gray -- as they are here -- we shouldn't try to make them look black and white.
That's my critique here.
