Momentum Against Stash House Stings Growing? – Update for December 19, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


stash171120The battle over whether stash house stings – where federal agents convince unwitting defendants to rob nonexistent stash houses of nonexistent drugs, all so they can arrest them – are designed to target minorities came to a head last week in an unprecedented three-day hearing in Chicago before a panel of nine U.S. district judges.

Each of the judges on the panel is presiding over one or more of 12 separate stash-house cases, with the liberty of 43 defendants at stake. The judges chose to hear expert testimony simultaneously after lawyers for all 43 defendants moved for the stash-house charges to be tossed on grounds of racial bias.

The testimony focused on dueling experts who reached starkly different conclusions about the racial breakdown of targets in the stash house cases. How they decide — possibly in a single ruling — is expected to influence how courts nationwide deal with similar claims.

expert160905An expert hired by the Federal Criminal Justice Clinic at the University of Chicago Law School — which is leading the effort to have the cases dismissed — concluded that disparity between minority and white defendants in the stings was so large that there was “a zero percent likelihood” it happened by chance. Defense expert Jeffrey Fagan said that out of 94 stash-house defendants in the Chicago area during an 8-year period, 74 were black, 12 were Hispanic and just eight were white. If the ATF criteria for picking likely defendants were racially neutral, he said, far more whites would have been snared.

Government lawyers have essentially argued that the numbers are unsurprising, because people in wealthier white areas are unlikely to be attracted to such a violent, illegal enterprise. In other words, the ATF goes where the business is good, and the business is good on Chicago’s South and West Sides. The government’s expert testified that Fagan wrong to assume that hundreds of thousands of people in eight counties in and around Chicago would be willing to entertain the idea of arming themselves and storming a stash-house.

Bootstrapping your way to higher sentences...
Bootstrapping your way to higher sentences…

Stash house stings have been criticized on other grounds, several times in this blog – here, here, here, here and here, for example – because agents can and usually do arbitrarily increase the sentences meted out by increasing the amount of non-existent drugs they tell defendants are in the non-existent stash houses. After all, why conspire to steal one kilo of smack when you can conspire to steal 50? Of course, the sentencing guidelines – not to mention the drug distribution statute itself – dictate much higher sentences according to the amount of drugs with which the conspiracy is involved, whether those drugs are physical or virtual.

The groundbreaking hearing is being closely watched in federal districts across the country. How it plays out could have ramifications far beyond the 43 Chicago defendants who are seeking to have their charges thrown out. The judges are expected to issue separate rulings at a later date, although some lawyers think there could be joint opinions issued by several judges if any are in agreement.

Chicago Tribune, Judges hear arguments on ATF’s alleged racial bias as landmark hearing opens (Dec. 14, 2017)

Fox News, Dueling statistics used at hearing on racial bias in stings (Dec. 15, 2017)

– Thomas L. Root


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