Connor Kianpour, UC Davis
When an individual pleads the fifth, they are protecting themselves against the threat of self-incrimination in an imperfect judicial system that, despite its valuation of the presumption of innocence, oftentimes manipulates information in criminal cases to prosecute swiftly rather than accurately. This right against self-incrimination is evidently a byproduct of the Founding Fathers’s distrust of leviathan governmental authority and it ultimately implies that there is a level of transparency that must exist between the state and its constituents. My right of freedom from self-incrimination is effectively rendered obsolete when I am coaxed by individuals whom I have no reason to distrust into saying things that may be used against me in a court of law. This, to me, is self-evidentiary. There is, however, a Supreme Court case on the books that not only condones but seems to encourage government officials to entrap individuals, or to lull individuals into a false sense of security wherein they are susceptible to being duped to self-incriminate.
In 1990, entrapment was legitimated by the United States Supreme Court in an 8-1 decision in the little-known case of Illinois v. Perkins. Lloyd Perkins was an inmate of the Graham Correctional Facility in Montgomery County, Illinois in 1986. During this time, a fellow inmate disclosed information to law enforcement officials that implicated Perkins in a murder that was being investigated at the time which he was not being held to answer for. The local police department then got undercover agent John Parisi in a cellblock with Perkins where Parisi was able to elicit from Perkins incriminatory statements that could be used against him in a court of law to charge him for murder. The court ruled in an 8-1 decision (Justice Thurgood Marshall representing the minority opinion) that if an individual in custody is unaware that he or she is talking to a government agent that there is no reason to presume he or she will feel compelled to answer questions or make statements in a certain way. Therefore, there was no fundamental wrong committed against Lloyd Perkins according to the Supreme Court. One may look at the facts of this case and believe that Lloyd Perkins was rightly incriminated for a crime he deserved to be prosecuted for. The effects of Perkins, however, is far-reaching and uncomfortably so at that.
It has become common for law enforcement agencies to conduct what lawyers refer to colloquially as Perkins operations. An individual, either a governmental actor or a non-governmental actor hired by the government, can pose as an innocuous inmate whose job would be to lull an unsuspecting individual into a false sense of security and to henceforth extrapolate incriminating information from them at what seems to be any cost. In a court case being heard currently at the Superior Court of Yolo County in Woodland, California, it was reported that a Perkins operation was conducted where the undercover actor conversed with the presumed suspect for over five hours before the Woodland Police Department believed they got information that could be interpreted as incriminating to use against the presumed suspect and others in a court of law. The most troubling aspect of Perkins operations is the fact that the justificatory burden for their employment is almost nonexistent. Individuals who are meant to be presumed innocent for certain crimes can be treated by government officials as guilty parties that just need to be reconfigured in the right ways before their guilt is readily recognizable, and there seems to be something both fundamentally and intuitively wrong with such a practice.
I shall argue that, in addition to the ways in which Perkins operations evidently violate our right to protection from self-incrimination, the decision in Perkins v. Illinois ultimately undermines a touchstone of Western politics: the primacy of publicity. Publicity is valued in Western liberal democratic societies in three primary ways, all of which I attribute in full to the theorizations of John Rawls. First, it is generally accepted that a law is unjust when its enactment relies upon the ignorance of a substantial many. Second, we place significant value in our laws being accessible, un-vague, and clear in their directives. Thirdly, publicity provides the greatest chance for members of society to develop genuine trust in their state and leads to long-term stability. All three of these valuations taken together ultimately reveal that publicity from the state to its constituents enables all constituents to feel as though they have had a significant hand in the development of law and that they feel in profound ways an obligation to the law because it is readily accessible and, well, public.
The use of Perkins operations can be said to be consistent with publicity if we understand publicity in the following way: as long as I know that I live in a system where theoretically the type of entrapment permitted by Perkins operations could happen to me, then it is acceptable. It is, however, not consistent with the understanding of publicity that I encourage we expect of our governments in Western society, which is roughly: as long as I know that I am speaking to somebody who is representing the state and I have been made to know my rights consistent with Miranda, then Perkins operations are acceptable. The reason we should expect of our government publicity of the latter rather than the former kind is quite simple. If we hold our government to the first standard, we allow the government a significant amount of power which they can wield over us to do to us what they did to Lloyd Perkins. Perhaps, they could get away with doing to us something much worse than what was done to Perkins, as he was actually guilty of the crime they accused him of. What if the state would be capable of duping us into saying things that, when presented in a certain context, makes of us criminals that we know we are not? Needless to say, this is a worst-case scenario, but the existence of such a possibility is cause for serious consideration.
I will end this article with the words of Justice Marshall in his dissent in Perkins, as I believe they are apt and profound, especially for those who are lovers of the United States Constitution as I am: “The Court’s adoption of the ‘undercover agent’ exception to the Miranda rule…is necessarily also the adoption of a substantial loophole in our jurisprudence protecting suspects’ Fifth Amendment rights.” With the 1990 Perkins decision, a huge blow was dealt to our fifth amendment rights.