Opinion | Americans deserve to know whether ATF would continue “stash house stings” under Biden’s chief pick

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In 2014, a 21-year-old Cleveland man named Kenneth Flowers heard from his cousin about a house where some drug dealers had stashed cocaine — and a plan his cousin and others had hatched to rob it. Flowers had a job at the time and no criminal record. But the promise of a payoff that could have set him up for life was too good to pass up.

It turns out there was no stash house. There was no cocaine. The entire conspiracy was fabricated by an agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives. Nevertheless, Flowers was convicted on federal drug charges and is serving a 10-year mandatory minimum sentence. He has become something of a poster child for the manipulative tactics in such sting operations, which have targeted hundreds of young men, the vast majority of them Black.

Flowers’s 2015 conviction deserves a fresh look today because it happened under the U.S. Attorney’s Office for the Northern District of Ohio, then headed by DOJ veteran Steve Dettelbach — who is now awaiting Senate confirmation as President Biden’s pick to head up ATF. After the conviction of Flowers and his co-conspirators, Dettelbach’s office put out a news release celebrating the win, though it failed to mention that “what they believed to be a drug stash house” was entirely fictional. Dettelbach’s office also prosecuted at least two other stash house stings.

In the wake of mass shootings in Tulsa, Buffalo and Uvalde, Tex., the Biden administration is making gun control a priority. As the head of ATF, Dettelbach would play a critical role in how new policies are enforced.

But an ATF crackdown on guns would inevitably rub up against another of the administration’s stated priorities: fighting discrimination and systemic racism in policing. On a political level, the gun-control debate typically pits advocates for more restrictions against the National Rifle Association, gun companies or rural gun-rights activists who openly carry intimidating weapons in public. But on the ground, gun laws are rarely enforced against those groups. They’re typically enforced against non-White people in urban areas. In fact, the racial disparity for gun-related sentencing enhancements is greater than the discrepancy for federal drug laws. And while part of that may be due to disproportionate crime rates in those communities, the stash house stings show that it’s also driven by whom federal officials chose to target.

“The Justice Department likes to say they prioritize big cases, but their bread and butter is the low-hanging fruit,” says Erica Zunkel, a University of Chicago law professor who has represented defendants in stash house stings. “It’s routine stuff against people already disproportionately targeted by law enforcement.”

One study found that between 2006 and 2013, nearly 80 percent of people charged in stash house stings in northern Illinois were Black. A USA Today review of 635 sting prosecutions found that more than 90 percent of those targeted were people of color. Yet another review of 179 stings in New York found none had targeted a single White person. Media investigations in 2013 also found that some of those targeted had mental illness or were developmentally disabled.

In a typical stash house sting, federal agents send one or more informants into low-income neighborhoods to lure potential conspirators, typically by promising a lucrative payoff. One report found informants had been sent to a Black barbershop and a soul food spot. In another, a future defendant was recorded saying, “I’ll never be broke again. My kid’s gonna be straight.”

Because they can invent the crime from whole cloth, ATF agents have the power to stack these cases in their favor. For example, while crimes exclusively related to drugs typically fall under the purview of other agencies, ATF agents can grant themselves jurisdiction by fabricating armed guards at the fictitious stash houses. And because the illegal drugs are also imaginary, they can make the stash large enough to trigger a mandatory minimum sentence.

This power to dictate the details of the crime also helps the government get around an entrapment defense. That defense fails if prosecutors can show a defendant was already predisposed to commit the crime in question. So after dangling a lucrative payoff, federal agents might introduce minor obstacles as the payday draws near. If the target gets impatient or takes steps to overcome those obstacles, the government can argue this shows determination, which shows predisposition.

It also seems notable that these informants don’t propose robbing a gas station, home, or convenience store. Most of us wouldn’t consider robbing an innocent neighbor or business, even if we were desperate. But we might be more amenable to robbing someone already engaged in criminal activity.

In Flowers’s case, a judge with the U.S. Court of Appeals for the Sixth Circuit called the government’s behavior “unseemly,” adding that because “no known dangerous individuals … were targeted” and “no pre-existing drug rings” were broken up, the sting had little relationship to public safety. Federal judges in California and Chicago have written similar opinions. During oral arguments in a Los Angeles case, a federal appeals court judge accused ATF of “dragging half a million dollars through a poor neighborhood.” But with a few exceptions, these judges have also generally ruled that the law hamstrings them from overturning any convictions.

Dettelbach’s hearing before the Senate Judiciary Committee came just after the Uvalde, Tex., massacre, so most of the discussion focused on mass shootings and gun-control policy. The ATF stings never came up.

Because his nomination is still pending, Dettelbach declined to answer any questions on the record. But in response to a series of emailed questions, a White House spokesman noted that Dettelbach helped implement a federal consent decree with the Cleveland Police Department, has served on civil rights commissions, and has been endorsed for the ATF position by former attorneys general Eric Holder and Loretta E. Lynch as well as by prominent civil rights organizations such as the National Urban League.

It’s difficult to say how frequently ATF conducts these stings — or even whether they’re still happening. A flurry of media reports about the operations were published in the mid-2010s, but the New Yorker reported last year that there are case records from as late as 2019. The agency itself told the magazine that because the tactics are “tradecraft or investigative techniques,” it won’t say whether they’re still being used. A White House spokesman told me that because the administration doesn’t interfere with law enforcement agencies, he too couldn’t say whether the stings have continued or whether they’d continue should Dettelbach be confirmed.

Dettelbach himself didn’t plan or oversee the ATF traps. But he did oversee an office that prosecuted the people ensnared by them. Given that he has now been nominated to lead the agency that did plan and execute them, he should tell the country what he thinks of the tactics and whether they’ll continue under his watch.