Althouse on Craig-gate

Ann Althouse offers her two pence on the Craig affair. She criticizes a post by Arianna Huffington which stakes out a position somewhat similar to mine (Huffington, overplays the rhetorical terrorism card, in my humble opinion). Althouse makes several fair points in her criticism (though also uses a strawperson argument) and ends her post with an interesting rational-choice economic argument supporting the enforcement of so called "quality-of-life" crime investigations:

I'm not an economist, but it seems to me that the sting is cost effective. One police officer, carrying out very few arrests, ruins the reputation of this bathroom as a place for sex encounters. That bathroom is in the state's most important airport, a hub of commercial activity. Minnesotans have a huge interest in maintaining the quality of their international airport, and travelers have endless opportunities to choose other routes when they dislike an airport. I would speculate that Karsnia's work probably produced a large net benefit to taxpayers.

Having said that, someone in the comments thread referring to him/herself as EngimatiCore countered with an equally reasonable counter-argument.

...unless Sen. Craig was one of the first arrests by any officer in that bathroom. I think it is clear that the reputation of that bathroom had been unscathed at the time of the incident, and probably would still be had this not broken nationally.

I would bet that a cop stationed, in uniform, outside of the bathroom would work just as well. People would not have to 'go looking' for him, we would be further from the line of entrapment, and the cop would not be forced to spend his time on a commode.

Of course this reasoned discourse can't stand for long among the commenters of the Althouse blog. First troll A makes some silly sweeping generalization of the right, "The GOP Mantra...", followed by an equally sweeping generalization of the left, "You just repeat the same questions over and over again, while ignoring the debate that has previously occurred in response to such questions." And the troll baiting continues.

But to Ann and EnigmatiCore, I salute you.

More on Craig-gate

Well Senator Larry Craig has resigned from the Senate. An opinion column in yesterday's New York Times by Laura MacDonald argues that Senator Craig was entrapped.

MacDonald's interesting piece draws attention to a Sociological classic written by Laud Humphreys in the late 1960s. Every undergraduate sociology student who takes a research methods course will be exposed to Humphrey's book, The Tearoom Trade, which Earl Babbie and other text book authors point to as an exemplar in unethical research practice. Briefly, Humphreys was aware of a practice whereby men utilized highway rest-stops to engage in trysts with other male strangers. In his study, he observed these encounters (usually through the pretext of being a "lookout" and documented the ritual by which men identified potential partners and safely confirmed mutual interest). MacDonald does a better job describing this part of Humphrey's work than I can offer. While he was observing the "trade", Humphreys took down the men's license plate information, then used surreptitious methods to get names and addresses from the DMV. He appeared at the participant's door weeks later, in a disguise, to administer a survey. Data from this part of the study showed that a substantial number of these men lived their public lives in heterosexual marriages. Many were prominent men in the community. [Note: this is the unethical part. Humphreys collected his observational data under false pretenses, thereby not allowing the subjects truly informed consent. When he showed up at their door weeks later and asked them rather embarrassing questions in front of their families, he risked outing them. There is sociological lore that Alvin Gouldner punched Humphreys in the face and broke his nose, over the incident. Note that there are many variations of this story published in peer reviewed articles about the history of Sociology. All that we know for certain is that Gouldner hit Humphreys and was publicly critical of his work. I've yet to track down an authoritative accounting of the details. While Humphreys did put his subjects at risk, one could plausibly argue that these methods were necessary for us to really understand what's happening here; both to counter fear mongering and get a handle on the actual risks involved. I suppose that's not for me to judge at this time.]

Part of Humphrey's argument 37 years ago was that heterosexual worries about sexual advances from strange men in the rest-room are unwarranted. The participants had a vested interest in only approaching those that would reciprocate. Soliciting the wrong person could reasonably do violence to one's person or reputation. Therefore, they worked out an elaborate signaling system using subtle cues. One would have to be "in the know" to realize that he was being propositioned. Without a return cue, the seeker moves on.

Suggesting that the Minneapolis men's room activity is similar to Humphrey's tea-room, MacDonald argues that the police investigation amounts to entrapment. I disagree. While I share her assessment of the negligible public safety risk constituted by tearoom activities (the signaling mechanism maximizes safety) and I agree that this sort of a sting operation is not an effective use of public resources, it is not entrapment.

As I posted back in June, entrapment occurs when the State induces a subject to a commit a crime that he or she would not carry out on his or her own. Jacobson v. United States illustrates this where law enforcement sent catalog materials to the subject baiting him to order child pornography. Following Robinson v. California, an underlying condition or predilection (no matter how distasteful to prevailing public opinion) can not be criminalized. Only conduct may be criminalized. Thus, when To Catch a Predator's, the vigilante group (Perverted Justice,) baits a predator out to make a rendezvous, it's tough to prosecute because this is entrapment. But when an undercover police officer poses as a streetwalker, and a would-be john asks, "how much?", it's not entrapment. In the latter case, the suspect initiates the transaction; it's reasonable to presume that he or she would have done so without the aide of the State.¹

Craig's case falls into this latter category. Based on the documents released to date, I'm satisfied with the state's argument that Craig was signaling and there is a public ordinance that makes this conduct illegal in that jurisdiction (though I still question the legality of that ordinance). Therefore, this is not entrapment. Indeed, it is the model of good police work. It's a stupid use of good police work, but good work none-the-less.

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1. I am not a Lawyer, nor do I have any formal training in the law from a law school. But, since I started teaching courses about and doing research on criminal justice processes 10 years ago, I've been reading a lot of case law. Should someone with a legal background stumble upon my analysis and wish to comment on my interepretation, I welcome it. Actually, I welcome anyone's comments generally.