Impediments to Transnational Cooperation in Undercover Policing: A Comparative Study of the United States and Italy

This article examines fundamental differences in how the United States and Italy think about, regulate, and attempt to legitimate undercover policing. It identifies a number of ways in which normative differences between American and Italian regulation impede transnational cooperation in covert investigations. The article also uses the insights gained from the contrast between the Italian and American regulatory approaches to hypothesize about the prospects for convergence on shared regulatory norms and the institutional impediments that such changes would face in Italy. The article is based on extensive field interviews with Italian police officials, prosecutors, and judges, and on an array of sources that illuminate law-in-action, including police manuals, ministry guidelines for conducting undercover investigations, and training materials. Both the American and Italian criminal justice systems treat undercover policing as problematic, but in strikingly dissimilar ways. American regulation focuses primarily on the risk that covert operations may distort behavior and encourage crime in the process of exposing it. By contrast, Italy especially emphasizes how undercover policing poses a threat to the rule of law - in particular, to the principle that the criminal laws apply to everyone, police officer and civilian alike. In the Italian legal system, the central dilemma of undercover policing is that allowing undercover agents to participate in the offenses they investigate (e.g. by purchasing contraband) implicates them in crimes and thus violates the principle that the criminal laws apply to the police along with the rest of society. Given this concern, Italian criminal procedure proceeds from the rule that undercover agents may not violate criminal laws in their undercover rule unless a statute expressly exempts them from criminal liability for doing so. Italy applies to its agents what I term societal norms - rules that apply to society in general rather than to the police in particular. By contrast, the American legal system does not assume that undercover conduct is per se criminal. American regulation of undercover investigations rest on the assumption that undercover operations need to be bounded through norms specific to government actors, that is, police norms. The difference between Italian use of societal norms and American reliance on police-specific norms expresses itself in the two systems contrasting conceptions of entrapment. In the United States, entrapment is a defense afforded to targets. It is a violation of investigative norms specific to governmental actors. In Italy entrapment is a crime committed by an undercover agent when he provokes a target to commit an offense. It is a form of accomplice liability that imposes criminal liability on the undercover agent along with the target. This Italian conception of entrapment-as-complicity embodies the notion that entrapment is a violation of a societal norm. These fundamental differences between the American and Italian undercover policing systems present underappreciated obstacles to international cooperation in transnational undercover investigations. Advocates of closer coordination do not sufficiently emphasize or appreciate how extensively Italy would need to transform its domestic policing regimes to try to facilitate covert operations with American agencies. Better collaboration would require fundamental changes in a multiplicity of areas whose connection to undercover policing is not readily apparent: for instance, in the interaction of informants and police; in the rules of evidence, including the use of suppression remedies; in the defenses allowed to suspects; in the independence of Italian prosecutors from judicial oversight and executive accountability; and in the range of discretion permitted to prosecutors and judges. A comparison between the United States and Italy illuminates some of the dynamics involved in harmonizing regulatory regimes premised upon different norms.