Prosecutors and Law Enforcement Officials Manipulate Investigations, Defendants Receive Greater Sentences

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


What is sentencing entrapment?


In a syndicated column that appeared in the Houston Chronicle (July 23, 2009), Larry Frankel, the legislative counsel for the ACLU in Washington, D.C., called sentencing entrapment “a little-known phenomenon in our criminal justice system” and it occurs “when the government through its agents or informants makes a person, who may have a predisposition to engage in one sort of criminal activity, to engage in more serious criminal activity that exposes that person to harsher punishment.”

Frankel illustrated this institutionalized form of governmental misconduct with a series of cases, including the highly-

publicized case of Willie M. Aikens. This former major league baseball player recently testified before Congress about his fall from social grace through a debilitating crack cocaine habit. Aikens told the lawmakers he was contacted by an undercover police officer who asked him to “score” some drugs for her. The undercover officer encouraged Aikens several times to cook powder cocaine down into crack cocaine which provides a far more intense “high.”


Aikens’ original criminal predisposition was to provide the undercover officer with “powder” cocaine. The officer, however, kept urging the former World Series hero to cook the cocaine powder down into crack cocaine which ultimately caused him to be charged and convicted of possessing crack cocaine rather than powder cocaine. Under the United States Sentencing Guidelines in place at the time, possession of crack cocaine was considered 100 times more serious than possession of powder cocaine..


In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to a 20:1 ratio. The 100:1 ratio required federal judges to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. This disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with serious racial implications. Black crack cocaine offenders, like Aikens, were routinely punished 100 times more severely than white powder cocaine offenders.

In 1984, during the Reagan administration, Congress responded to what was called a “public concern about the increase in drug use and distribution, violent crime, and recidivism,” by enacting the Comprehensive Crime Control Act (“CCCA”). A spin-off of CCCA was the Sentencing Reform Act of 1984 which was designed to remove sentencing discretion from federal judges—sentences often fashioned on the rehabilitation potential of the individual offender—and force judges to impose strict sentences based upon the popular but now widely-discredited notion of “just desserts.”


To implement this new sentencing scheme, Congress abolished the United States Parole Commission and created the United States Sentencing Commission (“Commission”). The seven-member Commission was charged with the task of establishing sentencing “Guidelines” that would produce harsher federal sentencing and end the “evil” of disparate sentencing. Congress ultimately adopted the Commission’s “Sentencing Guidelines” in 1987 establishing what has become a draconian sentencing scheme influenced more by prosecutors and law enforcement officials than judges—many of whom as a matter of practice engaged in the kind of law enforcement “entrapment” illustrated in the Aikens case.


To support this misconduct charge, Frankel pointed to a Massachusetts case where “the FBI initially authorized the informant to make a purchase of powder cocaine from the defendant. Subsequently, the FBI agents instructed the informant to make a second purchase from the same defendant but only in the form of crack. During the course of the trial, one of the FBI agents conceded that they had acted with the intent of getting a longer sentence for the defendant.”


In an online article entitled “Sentence Entrapment and Manipulation: Government Manipulation of the Federal Sentencing Guidelines,” Todd W. Whitten reported that “one result of the enactment of the [federal sentencing] guidelines was a transfer of sentencing discretion from judges to prosecutors. Because the guidelines emphasize the amount of harm created by an offense, they encourage and enable prosecutors and law enforcement officials to manipulate investigations and sting operations so that defendants will receive greater sentences.”


At the Congressional hearing during which Aikens testified, lawmakers heard testimony from a Los Angeles female informant who was instructed by her law enforcement handlers to specifically purchase crack cocaine on two occasions from a defendant. Frankel said that “when the defendant showed up with powder cocaine, the informant insisted that the defendant cook the powder into crack. Because the defendant complied with the informant’s demand he was subjected to a harsher mandatory sentence.”


The Ninth Circuit Court of Appeals is the only federal circuit to have reversed a sentence based on the theory of sentence entrapment. 1/ The Eighth Circuit has recognized the theory 2/ while the Eleventh Circuit has rejected it outright. 3/ While the Fifth Circuit has not directly addressed the theory, it has casually dismissed it as a “trendy” theory not really deserving appellate review. 4/


The Eighth Circuit has defined sentencing entrapment as “outrageous official conduct [that] overcomes the will of an individual predisposed only to dealing in small quantities for the purpose of increasing the amount of drugs … and the resulting sentence of the entrapped defendant.” 5/


The recent “home-grown” terrorism case in North Carolina involving seven suspects charged with engaging in international travel, buying guns and participating in training trips in preparation for a violent “jihad” against Americans has focused increased media attention on the need for government “sting operations” in the terrorism minefield. The FBI, and other federal agencies, have informed the news media outlets of their concern about such “home grown” terror plots and the need for the agencies to establish a far-reaching network of “informants” to penetrate suspected al-Qaeda affiliated groups believed to be involved in a concerted effort to recruit disgruntled Americans—susceptible to what former U.S. Attorney General Alberto Gonzales called “radicalization”—into overt acts of terrorism against the United States

There are thousands of “out of the mainstream” Americans who are not only dissatisfied but extremely angry at our “Government.” Many of these people, found among the ranks of the imprisoned or impoverished, are perfect targets for law enforcement “informants” to manipulate into “conspiracies” of “terrorism” against the United States.


The North Carolina case has created a law enforcement need to detect and expose whatever other “plots” which are most certainly out there in the woodwork somewhere. But the problem is that when detecting and exposing real terrorist plots does not always produce satisfactory results, law enforcement agencies will inevitably resort to entrapment and manipulation to transform terrorism talk into terrorism deeds.


Criminal defense attorneys must be prepared to thoroughly explore the theory of possible sentencing entrapment and manipulation in all government “sting” operations and investigations involving the use of informants regardless of whether those operations/investigations involve drug buys, money laundering, or terror plots. So long as there is a “conflict” among the circuits on the issue of sentencing entrapment and so long as the government continues to engage in “outrageous” misconduct designed to influence the severity of punishment under the Guidelines, defense attorneys must be prepared to raise the “theory” of sentencing entrapment and manipulation in sentencing challenges until the U.S. Supreme Court steps in and resolves this conflict among the circuits on this “theory.”



Larry Frnakel certainly doesn’t believe it is a “theory.” As he put it: “Congress should keep in mind the disturbing stories of those whose lives are affected by sentencing entrapment when they take up the legislation that would eliminate this [crack/powder cocaine] sentencing disparity … Purging our criminal justice system of the irrational incentives that lead to that kind of governmental misconduct is critical to restoring fundamental fairness to our justice system.”


1/ United States v. Staufer, 38 F.3d 1103 (9th Cir. 1994)
2/ United States v. Barth, 990 F.2d 422 (8th Cir. 1993)
3/ United States v. Williams, 954 F.2d 668 (11th Cir. 1993)
4/ United States v. Washington, 44 F.3d 1271 (5th Cir. 1995)
5/ United States v. Barth, supra, 990 F.2d at 424

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair