I have a few statistical facts for you, and I’m using the term “statistical” and “facts” rather loosely.
Four out of every five citizens who are arrested for drug trafficking are victims of entrapment. Technically, five out of every five citizens arrested for drug trafficking believe they are victims of entrapment, but we’re not concerned with beliefs here, only the facts. Entrapment can be difficult to prove, because most judges and prosecutors won’t admit their beloved agents could ever permit an informant to manufacture a crime, rather than detect a crime. Well, I hate to break it to you, but it happens all the time. To understand why entrapment is prevalent in Florida, it’s important to understand how the game is played. Most entrapment cases involve confidential informants attempting to wiggle their way out of a serious charge, so that’s our focus.
The game begins when someone is arrested on a trafficking charge involving mandatory prison time (often a mandatory minimum of 25 years in prison—about 12 years more than the average child rapist receives). The defendant who decides to become a snitch is usually a first offender, desperate not to spend the best years of his life behind bars. Let’s face it, this kind of time hanging over your head would cause most folks to do things they would otherwise be incapable of doing. So, with no law enforcement training, only a desire to “do anything to avoid going to prison”, law enforcement unleashes their untrained informants into Florida’s streets. These defendants/informants are now charged with a task that is typically reserved for “highly” trained undercover officers—set up drug deals. Not just any drug deal. Big drug deals. Yes, “big” can mean “dangerous”, a story for another day. The technical term for this untrained undercover work is “substantial assistance”.
An entire book could be written about substantial assistance deals, but who has the time for that? Here’s the three sentence version. A substantial assistance deal is a plea agreement with extra clauses providing the defendant with guaranteed “credit” against his minimum mandatory sentence for every arrest he manufactures. For example, if a defendant is facing a 25 year minimum mandatory for trafficking in oxycodone, the defendant may receive 5 years off of that sentence for every 25 year minimum mandatory arrest he manufactures. If the set up isn’t a big enough deal, the credit may only be for 3 years off, or 2 years off, and so forth, and so on. Yes, there are problems determining how much credit is due. For example, if a defendant’s efforts lead to the arrest of eight people—shouldn’t the defendant be given credit for all eight arrests?
Problems arise when defense attorneys fail to negotiate proper credit for each transaction. People are getting killed over these transactions. So, getting merely 18 months off your 25 year sentence for risking your life is a pretty bad deal. Heck, most substantial assistance agreements seem like a bad deal, when you consider the fact that law enforcement would not place their own rookie cops in such dangerous undercover operations—but they have no problem placing a rookie defendant with no prior record or law enforcement training in such tight spots. But hey, we haven’t even touched upon the real source of the problem. It involves the management (or lack thereof) of the defendants who work as confidential informants (CI).
In Florida, the defendant turned CI is not trained. The CI is not supervised. There are no guidelines in place to control how a CI manufactures a case. The narcotics agent simply asks that the defendant call the agent once he has a deal ready to go. Are any questions asked of the CI as to how the CI set up the deal? Heck no. Ignorance is bliss. Zero supervision. Just call me when you’ve got a deal. When the deal is ready to go, the narcotics agent will pick up the defendant and accompany the informant to the drug deal, where the agent pretends to be a friend of the confidential informant/defendant. By cutting the informant out of the actual transaction, the agent believes that his informant will be legally protected, much in the way that a prostitute believes that by asking a potential client if he’s a cop that he’s required by law to confess he’s a cop. The urban myths of both cops and escorts create work for we defense attorneys. I’m just saying.
In case I forgot to mention this–there is no supervision of the informant. In case I forgot to mention this–the narcotics agent has no idea as to how the CI was able to convince this person to buy or sell drugs. No idea. Really, I don’t think the agent wants to know how the CI worked the case. Ignorance is bliss, sure, but ignorance leads to abuse. Abuse leads to entrapment.
Now, I haven’t told you much about the elements of entrapment, I know. I just want you to understand a bit about the current legal climate that has led to the far too many entrapped citizens. The legal concept of entrapment has been codified by the Florida legislature in Section 777.201 of the Florida Statutes, and refined by Florida’s appellate courts. For more details, check out my webpage dedicated to entrapment.