WASHINGTON — The nation's top gun-enforcement agency overwhelmingly targeted racial and ethnic minorities as it expanded its use of controversial drug sting operations, a USA TODAY investigation shows.
The Bureau of Alcohol, Tobacco, Firearms and Explosives has more than quadrupled its use of those stings during the past decade, quietly making them a central part of its attempts to combat gun crime. The operations are designed to produce long prison sentences for suspects enticed by the promise of pocketing as much as $100,000 for robbing a drug stash house that does not actually exist.
At least 91% of the people agents have locked up using those stings were racial or ethnic minorities, USA TODAY found after reviewing court files and prison records from across the United States. Nearly all were either black or Hispanic. That rate is far higher than among people arrested for big-city violent crimes, or for other federal robbery, drug and gun offenses.
The ATF operations raise particular concerns because they seek to enlist suspected criminals in new crimes rather than merely solving old ones, giving agents and their underworld informants unusually wide latitude to select who will be targeted. In some cases, informants said they identified targets for the stings after simply meeting them on the street.
"There's something very wrong going on here," said University of Chicago law professor Alison Siegler, part of a team of lawyers challenging the ATF's tactics in an Illinois federal court. "The government is creating these crimes and then choosing who it's going to target."
Current and former ATF officials insist that race plays no part in the operations. Instead, they said, agents seek to identify people already committing violent robberies in crime-ridden areas, usually focusing on those who have amassed long and violent rap sheets.
"There is no profiling going on here," said Melvin King, ATF's deputy assistant director for field operations, who has supervised some of the investigations. "We're targeting the worst of the worst, and we're looking for violent criminals that are using firearms in furtherance of other illegal activities."
STINGS RUN INTO A LEGAL BACKLASH
The ATF's stash-house investigations already face a legal backlash. Two federal judges in California ruled this year that agents violated the Constitution by setting people up for "fictitious crime" they wouldn't otherwise commit; a federal appeals court in Chicago is weighing whether an operation there amounted to entrapment. Even some of the judges who have signed off on the operations have expressed misgivings about them.
On top of that, defense lawyers in three states have charged that ATF is profiling minority suspects. They asked judges to force the Justice Department to turn over records they hope will prove those claims. Last year, the chief federal judge in Chicago, U.S. District Court Judge Ruben Castillo, agreed and ordered government lawyers to produce a trove of information, saying there was a "strong showing of potential bias."
Justice Department lawyers fought to block the disclosures. In one case in Chicago, the department refused to comply with another judge's order that it produce information about the stings. The records it has so far produced in other cases remain sealed.
Because of that secrecy, the data compiled by USA TODAY offer the broadest evidence yet that ATF's operations have overwhelmingly had minority suspects in their cross hairs. The newspaper identified a sample of 635 defendants arrested in stash-house stings during the past decade, and found 579, or 91%, were minorities.
The ATF said it could not confirm those figures because the agency does not track the demographics of the people it arrests in stash-house cases.
That alone is troubling, said Emma Andersson, a staff attorney for the ACLU's Criminal Law Reform Project. "Management is simply putting its head in the sand," she said.
Other police agencies routinely collect that type of information to monitor racial profiling, and Attorney General Eric Holder said in April that the Justice Department would attempt to do so, as well. "To be successful in reducing both the experience and the perception of bias, we must have verifiable data about the problem," Holder said at the time.
"It's not enough to say we're not purposely targeting young men of color," said Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law who has studied the ATF's tactics. "When you have a possibly discriminatory effect, it should still require you to go back and look at the structure of the operation," including where and how agents choose to conduct the operations.
HOW ATF CHOOSES ITS TARGETS
ATF guidelines require that field supervisors and officials in Washington approve each stash-house sting. The reviews focus mostly on ensuring that suspects have a sufficiently serious record to justify such a costly, and at times dangerous, undercover investigation; officials said they do not include any consideration of the suspect's race.
The ATF declined to explain how it selects the stings' targets, other than to say its agents rely on criminal records, police intelligence files and confidential informants to identify people already responsible for violent robberies. Still, court records raise questions about how and where those informants go about finding suspects.
In one case in San Diego, a government informant, identified in court records only by the pseudonym "Tony," testified that he sometimes approached people on the street to see if they wanted to commit a drug robbery. Which streets, defense attorney John Kirby asked.
"Different neighborhoods. I have targeted all kinds of areas," the informant replied.
"Do you do it in La Jolla?" Kirby asked, referring to the well-to-do seaside section of San Diego.
"I'm not familiar with La Jolla," he replied.
"Scripps Ranch?" Kirby asked, referring to another.
Kirby, a former federal prosecutor, said it was clear to him ATF informants were "trolling what was almost exclusively an African-American neighborhood, and there aren't a lot of those in San Diego."
The ATF offers a suspected robber the chance to steal 40 kilograms of cocaine.
In another case, a federal appeals court judge said the ATF dispatched an informant "to randomly recruit 'bad guys' in a 'bad part of town.' " The judge, Stephen Reinhardt, went on to express doubts about "whether the government may target poor, minority neighborhoods and seek to tempt their residents to commit crimes that might well result in their escape from poverty," calling that approach an "open invitation to racial discrimination."
A California federal judge similarly accused ATF agents this year of "trolling poor neighborhoods" for suspects before he dismissed criminal charges against three men. The government has appealed that decision.
The stings are engineered to produce prison sentences of a decade or more, mostly by capitalizing on federal laws that impose tough mandatory penalties for people who conspire to possess large quantities of drugs — even if those drugs don't actually exist.
Another USA TODAY investigation last year found that although the ATF stash-house operations have succeeded in locking up some well-armed suspects with long records of violence, they have also swept up scores of low-level crooks who jumped at the potential payday for a few hours of work. One investigation targeted off-duty Army Rangers; in another, agents had to supply their would-be armed robbers with a gun.
The ATF cut its use of stash-house stings by more than half this year, in part because "you've advertised this technique," King said.
King, who is black, said he had approved some stings and rejected others, looking only at the suspect's criminal record and never at his race. "When I hear that argument that ATF is targeting minorities or, in particular, African Americans, I find it offensive because that means I would be a party to such an unfair thing," King said. "It's the furthest thing from the truth."
MINORITY ARRESTS, BUT IS IT PROFILING?
To prove that the ATF has engaged in profiling, suspects must go beyond showing that the ATF's tactics have led to a large percentage of minority arrests. Instead, they also must find similarly situated white people who were not prosecuted, then show that the government was discriminating on purpose — a legal barrier few overcome.
Even getting judges to order the government to release records in pursuit of such a claim is uncommon, Siegler said. The judges who ordered disclosure based their decisions mostly on records showing that nearly all of people arrested in ATF stings in Chicago were minorities. "The numbers are troubling. Judges see these numbers, and they feel like there's something going on here that's not quite right," she said.
USA TODAY identified suspects' races using federal prison data and other records. It identified Hispanic suspects by comparing their names to a U.S. Census Bureau list of "heavily Hispanic" surnames, an approach widely used for identifying trends based on ethnicity. (The U.S. Bureau of Prisons, which lists inmates' races on its website, said it would violate a federal privacy law to also disclose whether they are Hispanic.) Where possible, USA TODAY verified that information with other police records or the suspects' lawyers.
More than 55% of the suspects USA TODAY identified were black; more than 33% were Hispanic.
Those numbers appear unusual even in the context of a criminal justice system that already is made up mostly of blacks and Hispanics. Minorities are about a third of the nation's population, but are nearly three-quarters of federal prison inmates.
By comparison, about 76% of the people charged with violent crimes in the nation's major cities are minorities. Minorities make up about 72% of the people serving prison sentences for murder, and about 71% of people convicted of federal gun and drug offenses.
Beyond that, the demographics of ATF's stings appear lopsided even after accounting for suspects' criminal records, USA TODAY found after reviewing data from the U.S. Sentencing Commission. Every person sentenced to federal prison is assigned a numerical "criminal history" score based on his or her prior convictions. Among defendants with the very worst criminal records, minorities made up less than 72% of defendants in other federal drug, gun and robbery cases
Justice Department officials reject most such comparisons. In a court filing this year, government lawyers said the only way suspects could show they had been targeted because of their race would be to find another person "who told a confidential informant or an undercover agent about a desire to commit an armed robbery and then was either not approached during a proactive investigation or who was approached and then not prosecuted, solely because of his race."
Contributing: Mark Hannan
Follow investigative reporter Brad Heath on Twitter: @bradheath.