We are investigative reporters working on a series of stories about “Outrageous Government Conduct” (a.k.a. entrapment; think: Fake bombs, fake drugs and confidential government informants breaking the law). Ask us about Outrageous Government Conduct or anything else criminal justice-related.
Adam Wisnieski is an investigative journalist from the Bronx, who has spent years digging into issues ranging from corrupt senior care facilities to dishonest government reporting and police malpractice.
Graham Kates is Deputy Managing Editor of The Crime Report, where our stories have shed light on “America’s Guilt Mill,” financially shady prisoner re-entry programs, failures to prosecute environmental crimes and many other criminal justice issues.
Our newest project is a series of stories that will allow readers to get a broad view of how the government has pushed up against the walls of legality in order to make arrests, and we literally (like a few minutes ago) launched an IndieGoGo campaign to fund it: https://www.indiegogo.com/projects/investigating-outrageous-government-conduct/x/9912385
As a journalist, how do you protect yourself from govt persecution when you are essentially whistle blowing? How do you get information from guarded sources like cops and courthouses when they naturally reject questions?
[Graham] Personally, I operate with the assumption that I won’t be prosecuted for the information I receive from sources, even though it does happen, especially under this administration. But if you start worrying about that, you’re thinking about the wrong things.
Whistleblowers in general take great risks to reveal injustices, and reporters should be willing to take risks for them, and protect them at all costs.
In New York City, under Commissioner Ray Kelly, police were for the most part forbidden from talking on the record with reporters, even on subjects that reflected positively upon the department. That meant earning, and keeping, a lot of confidence from sources.
This also connects in a way to the issue of police-community relations. The eroding trust between some communities and police departments is often reflected in the wary relationships between the departments and the media.
Two words: Civil Forfeiture. Honestly though, how has basically daylight robbery from citizens without any judicial supervision been allowed to continue for so long in our country that prides itself on individual liberty?
[Graham] Civil forfeiture became what it is today because it was a way to get buy-in on the drug war from small police departments. I think as we (maybe) see the drug war wind down, that particular aspect of it will get axed by legislatures.
Please blow my mind with something you guys have investigated and make me interesting in researching more. Also what got you in this line of work?
[Graham] I don’t know if these will blow your mind, but: One of our reporters spent months trying to get to the bottom of how many wrongful convictions we have each year, if you include the lower-level crimes that the Innocence Project never gets to. The estimate: 50,000 per year. That story is called “America’s Guilt Mill”: http://www.thecrimereport.org/news/inside-criminal-justice/2015-02-americas-guilt-mill
For a story I did last year, we looked into environmental crime investigations. The gist of that investigation was that less than 1/2 of 1 percent of all potential environmental crimes are ever even investigated: http://www.thecrimereport.org/news/inside-criminal-justice/2014-07-environmental-crime-the-prosecution-gap
Another long-term thing that we did, in partnership with NBC, is a look at a notorious New York City substance abuse provider that’s quietly become a lynchpin of the state’s re-entry system, costing tens of millions of dollars per year while racking up allegations of poor services, decrepit housing, etc.: http://www.thecrimereport.org/news/inside-criminal-justice/2015-01-the-narco-freedom-case-whos-watching-the-caregivers
What got me into reporting: After college I was looking for a job that wouldn’t be boring, and this (almost) never is.
How about lobbyists? They seem like they make a lot of the laws that you end up investigating.
[Graham] This is a bit of an old read, but the Justice Policy Institute’s 2011 report, “How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies,” is a good primer on the forces pushing to ensure mass incarceration sticks around. http://www.justicepolicy.org/uploads/justicepolicy/documents/gaming_the_system.pdf
It seems like every few months the FBI comes out with a new terror case where they convinced some people to join a terrorist organization and even provided them with fake weapons, fake bombs, etc. Is this a good way to root out terrorists before they become real terrorists or is it just the system creating headlines to support its self?
[Adam] “Is this a good way to root out terrorists before they become real terrorists or is it just the system creating headlines to support its self?” That’s at the root of what we are beginning to examine in this project. Are these law enforcement techniques (fake bombs, crimes coordinated by confidential informants) actually preventing terrorism or are they a way for the government to appear as if they are successfully thwarting acts of terror? I think there has been a heightened awareness of this in the last couple of years, though entrapment defenses and claims of “outrageous government conduct” are still mostly unsuccessful.
There’s a great roundup from a couple years ago from Justin Elliott at ProPublica that looks at this issue – related to NYPD cases. Check it out:
Why does America, specifically, have such a strangely high rate of imprisonment?
[Graham] Through the mid-1970s our incarceration rate was on par with most other Western democracies. Then came the Drug War, and a race between politicians to prove their “Tough on Crime” credentials … that meant more felonies, longer sentences, and mandatory minimum sentences. It’s a recipe for prisons stuffed full of inmates who committed non-violent crimes a very long time ago.
What’s your opinion on the news about the secret interrogation facility in Chicago?
[Graham] Disturbing story, right? I want to hear from more people who have been held there. That was the Chicago PD, but I wouldn’t be surprised to find similar facilities in several major cities.
[Adam] I thought it was interesting to look at how it was covered in the Chicago media. The Guardian’s a Pulitzer prize-winning paper, yet the focus was on its British-ness. Here’s the Tribune’s headline: “Chicago police deny British paper’s claims about beatings, illegal detentions”
One of the standard hallmarks of pre-trial justice is the formalization of arrest through booking and arraignment, and of course, the guarantee of 6th Amendment rights. These low-key holding facilities often skirt the things we consider obvious formalities.
What are your professional backgrounds? Where did you attend college and what did you study? Any advice to a more than 20 something who might still have stars in his eyes about changing the world?
[Graham] I went to SUNY Binghamton and then worked a couple of days a week at a tiny bi-weekly in the Bronx called The Norwood News. I thought I was done when, on the morning of my first day on the job, I got kicked out of a local government meeting. A couple of years later I went to the CUNY Graduate School of Journalism. It was great, I highly recommend it, but the thing about journalism is you can start doing it without any background or training. It’s just a matter of asking questions, requesting info and access, and then delivering the answers to as many people as you can.
[Adam] Oddly enough, I never thought about doing that when I was younger! I sort of fell into journalism. I always loved writing, but never had a clear career path. I studied English and Communications at Manhattan College in the Bronx, where I still live. After college I bounced around at all sorts of jobs (landscaping, librarian) and ended up taking an internship on my days off at the New York Press, a paper that no longer exists but once featured great Matt Taibbi articles. His work, as well as Tom Robbins stuff at the Village Voice, really got me into wanting to be a reporter. I started freelancing, got a job at a local paper (The Riverdale Press in the Bronx) and learned as I went along. Now I’m a freelancer and am constantly worried about money and health insurance and other things like that, but freelancing is the greatest. My advice is start pitching your local paper (if you have one) story ideas and work your way up from there.
What can average Joe do to combat these atrocious misuses of power?
[Graham] In the last presidential election, in all the debates combined, the candidates were asked exactly one question related to criminal justice (it had to do with gun control). But if people ask them questions about this stuff at every campaign stop before the next round of elections, that can change. Making candidates answer these questions is important — otherwise it’s all relegated to C-Span subcommittee coverage.
What do you think of whats going on in New York lately, with the showdowns between the Mayor and the Police Unions?
[Graham] In some ways its just that, a public battle between two executives (the mayor and the head of the police union). The untold story in all this is that cops and the communities they police have actually wanted the same things for a long time. There are very few police officers who say, “Yeah, I want to use heavy-handed tactics like ‘stop-and-frisk.'” They’ve been itching to get rid of the burden of having to compile ever-growing arrest, summons and stop statistics for about as long as communities have been saying it needs to stop.
Why in your opinion, do you think that the stop-and-frisk policy was allowed to go on for so long? If many cops thought it was a bad idea and communities hated it also, why did it continue as policy?
[Graham] This is more of a general observation about various public sector professions that I’ve covered, as opposed to just policing: ground-level actors (police, teachers, sanitation workers, transportation officials, etc.) have been getting less and less say in what the policies that impact their fields should be. When they note that policies are disruptive, unproductive or worse, the response from above can range from belittling (“teachers/officers/whoever complain”) and commanding (“be a good soldier”) to vaguely threatening (“you shouldn’t make waves…”).
Do you think that your life could turn out to be like that of that guy from ‘Kill the messenger’ ? Do you feel threatened?
[Graham] I think we all worry about how our stories will be perceived, but this is also a different time, in terms of how we look at formerly widely-accepted things like the drug war and the covert operations of intelligence agencies. That might not be the best answer, so I guess to be more direct: No and every once in a while.
Is it even possible to whittle away at overhauling the DOD, DOJ, HS, NSA etc. etc. and hopefully work our way into a “just” and equitable future (where all are afforded certain inalienable rights blah blah blah under the rule of law) or will something far more radical have to take place for any meaningful standard of justice on a macro scale to exist?
[Graham] I honestly think we’re at a good moment for fixing the criminal justice system. There has never been so much attention paid to the real nitty gritty details of crime and punishment. The same goes for the intelligence field.
Do you think investigative reporting will ever make a comeback?
[Adam] We hope so. There is great investigative stuff out there, but many of the mainstream outlets seem to be doing less and less every year. This project is an experiment for us. This is the first time I’ve ever been part of crowd-funding and the first time The Crime Report has tried to raise funds this way. We hope it works! If it does, look for more long-form investigative projects from us in the future!
What books do you recommend reading?
[Graham] Here are a few that really give a sense of how this system works: Ghettoside by Jill Leovy; The New Jim Crow by Michelle Alexander; Blood in the Fields by Julia Reynolds; Unabomber by Jim Freeman, Terry Turchie and Donald Max Noel.
[Adam] The last three books I read were all great, the first two were on the NSA, so if you’re into issues of how criminal justice butts heads with privacy, check out James Bramford’s The Shadow Factory and Glenn Greenwald’s No Place to Hide. The third is not at all related to criminal justice but is absolutely fantastic: George Clinton’s autobiography.
How do you define entrapment and how does it differ, if any, from what the internet commonly thinks is entrapment?
[Adam] I’m not so certain I know what the Internet community usually thinks of entrapment, but it’s not as simple as an example I saw in this thread: “a cop walking up to you, asking you to hold a bag of weed for him and then arresting you for possession?”
While I have seen defendants accuse law enforcement of picking them out randomly and they had no predisposition to commit a crime, for the most part people who claim entrapment are chosen as targets because they have a record. The entrapment defense usually fails because of predisposition.
But judges have started to question these tactics. Does a prior conviction of selling a small amount of narcotics prove that that defendant is predisposed to deal hundreds of kilograms? That’s something we want to look at: are police getting more aggressive? Or are they using undercovers and confidential informants because it’s been successful in getting criminals off the street? Where’s the acceptable line?
What do you think lead to the situation as it is today? Can it be blamed solely on post 9/11 policy or did that just push it over the edge?
[Adam] That’s a great question and my answer is I’m not sure. Based on reading some great investigative reporting over the last decade, it’s been apparent that a lot gets carried out in the name of terrorism that has nothing to do with terrorism. Even what gets called terrorism seems to have broadened significantly post-9/11. We are going to look at pre-9/11 and post 9/11 cases of entrapment to see if there is a difference. Is is possible that these techniques were in use before 9/11 and after, it was just more apparent because everyone was way more interested in terrorism cases? Or did it actually increase? That’s what we will look at.
What’s the worst example of Outrageus Government Conduct that you can tell us about? Something that will make us all run out and buy tin foil hats.
[Graham] Rather than give just one example, I think the thing that surprises people in these cases is that even when a judge calls out the government for overstepping (as in the “Newburgh 4” case), the defendants still almost always end up in prison. In that case, the judge said: “The government comes up with the idea, picks the targets, provides all the means, removes the obstacles,” and later lamented that she had to apply minimum mandatory sentences.
How far, honestly, from a total facade-dropped despot/authoritarian regime are we currently? What remaining boxes need to be checked and/or what should we look out for?
[Graham] Well, there are major questions that need to be asked about every level of the criminal justice system, from arrest (actually even before) all the way through prisoner re-entry and after. We over-police certain neighborhoods for low-level crimes, while devoting too few resources to the big ones (homicide). Then we stack the odds against defendants and those convicted throughout the process.
What still separates us from mass secret-arrests? Our gov seems to be getting wise to the fact that it is unchecked. How much longer until we are a worst-case scenario?
[Adam] Sometimes the worse things get, the better for change. Part of this project is to examine if law enforcement has gone too far in trying to gain convictions. There are judges that are starting to question cases where law enforcement uses fake drugs and confidential informants participate (and sometimes coordinate) in the actual crime. Did these techniques go unchecked for too long? Why are judges starting to question more of these cases? Are certain law enforcement agencies pushing more than they have in the past? This is what we will examine in this project.
Can you provide any examples of departments or agencies that actually punish rather than protect this type of behavior?
[Graham] A lot of police departments have Internal Affairs bureaus, and many cities have civilian review boards, but one commonality that extends to most PDs is that this stuff is handled in-house, and the records very rarely easy to get.
There are, however, some good examples of district attorney offices that perform prosecutorial review of weak/problematic cases (Dallas, Brooklyn), and that is a growing movement that can potentially be vital to establishing better safeguards in the criminal justice system.
Will your book spend any time on Eric McDavid’s case?
[Adam] I have read about the Eric McDavid case a lot. But since it has been well covered (http://www.theguardian.com/us-news/2015/jan/13/fbi-informant-anna-eric-mcdavid-eco-terrorism) we plan to focus on lesser-known cases. Those bigger cases will obviously be a part of it, but we haven’t figured out to what extent yet.
Will there be any episodes in Edward Snowden being wanted for arrest, and episodes on the NSA Internet privacy debacle?
[Adam] Don’t think we’re going to get into that, but I think First Look https://firstlook.org/theintercept/ is doing a damn good job right now.
Do you believe law enforcement is inducing – creating intent – in people to commit crimes? Do you expect your study to support this?
[Adam] That’s what this project is all about. We hope to provide a wide view of how far the government goes to get convictions. We want to look at these types of cases over time and see if tactics and policies have changed. This is a debate that is going on in courtrooms across the country. We want to expand that conversation. It’s not about what we believe. We want to talk to parties on all sides of this issue and hear their motivations and reasons for doing what they do and believing what they believe.
What has your experience been when it comes to compliance with freedom of information laws when you are researching stories?
[Adam] I’ve seen it all when it comes to FOIL or FOIA requests. For the most part, in my opinion, the process is slow and terrible. There are certain agencies (I do a lot of local NYC stories so I deal with NYC agencies often) that are better than others. The absolute worst agency I’ve ever dealt with when it comes to FOIL requests is the NYPD and there have been some very funny comments about how bad they are, with some journalists saying they are worse than the FBI, CIA and NSA.
If an agency turns down your FOI request for reasons of security or volume, it takes time, energy (and lawyers) to fight it. I wish I had more time and energy to fight for requests because sometimes I get rejected and don’t fight.
The larger problem I see is that the government default is to withhold information and prevent releasing documents and data when it should be the other way around.
[Graham] Different agencies provide different response times, but it almost always takes longer than it should.
My favorite FOIA story: I asked the FBI for docs about Bernard Eastlund, a deceased former gov’t scientist whose discoveries conspiracy theorists claim are used by the government to make superstorms. The FBI’s initial response: that his docs may have been destroyed during Superstorm Sandy. http://www.salon.com/2013/10/31/sandy_partner/
What is your opinion of the Florida Department of Corrections and all of the inmate deaths?
[Graham] That’s a department that needs dramatic fixes at all levels. The new reforms being proposed seem like a good step, but I’m always wary of legislation that targets employees without also including solutions for the underlying causes and policies that created problems.
How accurate is the TV show Blacklist?
[Graham and Adam] To be honest, neither of us have watched it much. But there are certainly wealthy people and companies that influence every level of government, including the criminal justice system. As journalists, we think it’s our job to try to sort our where that influence comes into play, and what the real-world impact of that is.
Why are no journalists taking the government to task for domestic spying? Eric Holder lied to congress under oath about spying on millions of Americans. We only know about it at all because of the Snowden leak. Why don’t journalists actually serve their function without being afraid of the blatantly obvious, most important stories to everbody?
[Graham] One thing we’re really digging into at The Crime Report, is the new tools available to local police departments for essentially casual surveillance. Here’s a really short write-up on some of the products being hawked to police executives at the annual conference of the International Association of Chiefs of Police convention last year: http://www.thecrimereport.org/news/inside-criminal-justice/2014-11-iacp-draft
This of course barely scratched the surface, but a good takeaway is that surveillance tools are increasingly cheap and integrated into everyday gear.
What is one thing you wish every citizen knew about?
[Graham] Their right to request information.