Turns out there was no hiding place. There was no cocaine. The whole conspiracy was fabricated by an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Nonetheless, Flowers was federally convicted of drug trafficking and is serving a mandatory minimum sentence of 10 years. He has become something of a poster child for manipulation tactics in such undercover operations, which have targeted hundreds of young men, the vast majority of them black.
Flowers’ 2015 conviction deserves a fresh look today, as it happened under the U.S. Attorney’s Office for the Northern District of Ohio, then headed by DOJ veteran Steve Dettelbach – which is now awaiting confirmation of the Senate as President Biden’s choice to lead the ATF. After the conviction of Flowers and his co-conspirators, Dettelbach’s office issued a press release celebrating the victory, although he failed to mention that “what they believed to be a drug stash” was entirely fictional. . Dettelbach’s office also pursued at least two other stash stings.
In the wake of mass shootings in Tulsa, Buffalo and Uvalde, Texas, the Biden administration is making gun control a priority. As head of the ATF, Dettelbach would play a vital role in how the new policies are enforced.
But an ATF crackdown on guns would inevitably clash with another of the administration’s stated priorities: addressing discrimination and systemic racism in policing. On a political level, the gun control debate typically pits advocates of more restrictions against the National Rifle Association, gun companies, or rural gun rights activists who openly carry intimidating guns in public. . But on the ground, gun laws are rarely enforced against these groups. They are usually enforced against non-whites in urban areas. In fact, the racial disparity for gun sentencing improvements is greater than the gap for federal drug laws. And while some of this may be due to disproportionate crime rates in these communities, hideout bites show that it also depends on who federal officials choose to target.
“The Justice Department likes to say it puts big cases first, but its bread and butter are the low hanging fruits,” says Erica Zunkel, a University of Chicago law professor who has represented accused in hideout stings. “This is routine stuff against people already disproportionately targeted by law enforcement.”
A study found that between 2006 and 2013, nearly 80% of people charged with stings at a hideout in northern Illinois were black. A USA Today review of 635 lawsuits found that more than 90% of those targeted were people of color. Yet another 179 New York bites review found nothing had targeted a single white person. Media investigations in 2013 also revealed that some of those targeted suffered from mental illness or had intellectual disabilities.
In a typical hideout, federal agents send one or more informants to low-income neighborhoods to lure out potential conspirators, usually by promising lucrative gain. A report revealed that informants were sent to a black hair salon and a soul food spot. In another, a would-be defendant was recorded saying, “I will never be broke again. My child is going to be straight.
Because they can fabricate the crime from scratch, ATF agents have the power to stack these cases in their favor. For example, while exclusively drug-related crimes generally fall under the jurisdiction of other agencies, ATF agents can assume jurisdiction by manufacturing armed guards in the fictitious hideouts. And because illegal drugs are also imaginary, they can constitute a reserve large enough to trigger a mandatory minimum sentence.
This power to dictate the details of the crime also helps the government circumvent a defense of entrapment. This defense fails if prosecutors can show that a defendant was already predisposed to commit the crime in question. So, after dangling a lucrative payoff, federal agents could introduce minor hurdles as payday approaches. If the target grows impatient or takes action to overcome these obstacles, the government can argue that this shows determination, which shows a predisposition.
It also seems remarkable that these informants do not propose to rob a gas station, a house or a convenience store. Most of us wouldn’t consider robbing an innocent neighbor or a business, no matter how desperate we were. But we might be more willing to rob someone already engaged in criminal activity.
In the Flowers case, a judge for the United States Court of Appeals for the Sixth Circuit called the government’s behavior “unseemly”, adding that because “no known dangerous individual…has been targeted” and “no pre-existing drug network” was dismantled. , the sting had little to do with public safety. Federal judges in California and Chicago wrote similar opinions. During closing arguments in a Los Angeles case, a federal appeals court judge accused the ATF of “dragging half a million dollars through a poor neighborhood.” But with few exceptions, these judges have also generally ruled that the law prevents them from overturning any convictions.
Dettelbach’s hearing before the Senate Judiciary Committee took place right after the Uvalde, Texas massacre, so most of the talk has focused on the mass shootings and gun control policy. The ATF bites never happened.
Because his nomination is still pending, Dettelbach declined to answer questions on the record. But in response to a series of emailed questions, a White House spokesperson noted that Dettelbach had helped implement a federal consent decree with the Cleveland Police Department, had served on committees of civil rights and had been endorsed for the ATF position by former attorneys general Eric Holder. and Loretta E. Lynch as well as prominent civil rights organizations such as the National Urban League.
It’s hard to say how often the ATF performs these stings – or even if they always happen. A flurry of media reports on the operations appeared in the mid-2010s, but The New Yorker reported last year that there were recorded cases through 2019. The agency itself told the magazine that because the tactics are “home-made or investigative techniques”, he won’t say if they’re still in use. A White House spokesperson told me that because the administration was not interfering with law enforcement, he too could not say if the stings had continued or if they would continue if Dettelbach was confirmed. .
Dettelbach himself did not plan or oversee the ATF traps. But he oversaw a bureau that prosecuted those ensnared by them. Given that he has now been appointed to lead the agency that planned and executed them, he should tell the country what he thinks of the tactics and whether they will continue under his watch.