Undercover Policing and the Shifting Terms of Scholarly Debate: The United States and Europe in Counterpoint

Abstract

Among investigative tactics, undercover policing is unique in the extent to which it allows the police to shape the events they investigate. Yet this shared feature of undercover investigations produces very different academic controversies in the United States and Europe. European scholars fear the implications of legalizing tactics that had previously been tolerated, if at all, at the margins of legality. By contrast, American commentators seek to unsettle what they view as complacency about a tactic that is used far more widely in the United States than in Europe. In Italy and Germany, a long tradition of scholarship in criminal law treats police infiltration as a problem of government law-breaking. In France, a distinguished sociological tradition views undercover tactics as a privileged terrain of turf warfare between competing government agencies. Because of their interest in the entrapment defense, American academics focus largely on the criminal responsibility of targets, not operatives. More recently, American and European scholars have shifted their interest away from the criminal law, with its emphasis on the individual criminal liability of targets and undercover operatives, toward the exploration of new means for distributing responsibility among complementary institutional actors like police, prosecutors, and judges. Undercover policing has thus increasingly become a problem of criminal procedure, in which undercover tactics have come to be framed as threats to privacy, freedom of association, trial rights, and other civil liberties. As criminal investigations become increasingly transnational, criminal procedure has provided a shared framework of criticism and a familiar repertoire of solutions, facilitating national comparisons and sometimes muting national differences in regulatory norms and approach.