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Secret Justice: Criminal Informants and America’s Underground Legal System

I. Introduction

Although it is almost invisible to the public, the use of criminal informants is everywhere in the U.S. justice system. From street corners to jails to courthouses to prisons, every year the government negotiates thousands of deals with criminal offenders in which suspects can avoid arrest or punishment in exchange for information. These deals typically take place off-the-record, subject to few rules and little oversight. While criminal informants—sometimes referred to as “snitches”—can be important investigative tools, using them has some serious costs: informants often continue to commit crimes, while the information they provide is infamously unreliable. Taken together, these facts make snitching an impor-tant and problematic aspect of the way America does justice.

The practice of trading information for guilt is so pervasive that it has literally become a thriving business. For exam-ple, Ann Colomb and her three sons were wrongfully convicted in 2006 of running a crack cocaine ring in Louisiana. They were convicted based on the fabricated testimony of dozens of jailhouse informants—participants in a for-profit snitch ring operating in the local federal prison. As part of that ring, prisoners were buying and selling information about pending cases to offer to prosecutors in order to reduce their own sentences.

When police rely on criminal informants, innocent people can pay a heavy price. Acting on a bad tip from a local drug dealer-turned-informant, Atlanta police sought a no-knock warrant for the home of Mrs. Kathryn Johnston. In order to get the warrant, the officers invented an imaginary snitch, telling the magistrate judge that a non-existent “reliable confidential informant” had bought crack at Mrs. Johnston’s home. While executing the warrant on November 21, 2006, police shot and killed the 92-year-old grandmother.

Criminal informants often continue to commit crimes while working for the government. To its embarrassment, the Se-cret Service discovered that one of their top former informants, Albert Gonzalez, was running one of the largest credit card data theft rings in the country. Gonzalez had used his connections with the government to promote his illegal activities and also to tip off other hackers on how to avoid detection.

Sometimes informants themselves are victims. Rachel Hoffman was a Florida State college graduate with a bright future. Caught with a small amount of marijuana and some illegal pills, she agreed to work as an informant in order to avoid prison. Police sent her on a sting to buy a large amount of drugs and a gun—Rachel was killed during the sting, in May 2008.

Such stories of crime and violence illustrate the pervasive and complex role that informants play in our justice system. To be sure, informants can be a valuable investigative tool, offering the government a powerful weapon against criminal organizations and hard-to-crack cases. But the significant costs and dangers of the policy have remained almost com-pletely overlooked.
Moreover, because the deals between criminal suspects and the government tend to remain undocu-mented and unregulated, there is very little public data about the ways that police and prosecutors wield their immense discretion to create, forgive and deploy informants.

It is time for this state of affairs to change. The use of criminal informants is an important public policy that determines the outcome of thousands of investigations and cases every year, costing millions of dollars and touching millions of lives. It should no longer be permitted to operate off-the-record and in the shadows.

II. The Real Deal: How Snitching Works

The heart of snitching is the deal between the government and the criminal suspect, in which the government permits the suspect to avoid potential criminal liability or punishment in exchange for information. In this sense, “snitching” refers to a relatively narrow class of people who give information to the government in exchange for impunity for their own crimes; it is not about whistleblowers, crime victims, civilian witnesses or people who call “911.” Rather, criminal informant deals are special because they involve a decision by the government to forego arrest, prosecution or punishment. In other words, snitch deals are a form of plea bargain. This is one of the most important features of informant use: it is not merely an investigative tactic, but a widespread, secretive and almost completely unregulated method of resolving guilt.

There are as many kinds of snitches as there as criminal offenders. Mark Whitacre —subject of the book and movie The Informant—was a high-level executive at the corporate giant Archer Daniels Midland. Whitacre became an FBI infor-mant in part to provide crucial evidence to the government about ADM’s illegal price fixing activities, and in part to cover up his own multi-million-dollar embezzlement scheme. Mafia hit man Salvatore “Sammy the Bull” Gravano became one of history’s best known informants by testifying against his boss John Gotti and dozens of other mafia operatives in ex-change for a five-year sentence for 19 murders he committed. Once in witness protection, Gravano went on to establish a massive ecstasy distribution ring in his new home state of Arizona.

Police and prosecutors have essentially unfettered discretion to enter into informant deals.
Anyone can be made into an informant, regardless of the nature of their offense, and nearly anything can be traded, including sex, the treatment of family members and money. For example, informant Amy Gepfert worked off her drug charges by posing as a prostitute and having sex with another suspect. Andrew Fastow, CFO of Enron, earned leniency for his wife Lea by cooperating against Enron CEO Kenneth Lay. Informants can also earn substantial sums of money through forfeiture laws, which au-thorize giving informants up to 25 percent of the value of seized assets. While it is illegal for police to reward their infor-mants directly with drugs, police acknowledge that in practice they often indirectly supply drugs to their informants, either because informants routinely “skim” off controlled buys, or because police give informants small amounts of cash knowing that it will be used to purchase drugs.

In exchange for cooperation, informants can earn forgiveness for every kind of crime. While the most common snitch deals typically involve drug offenses, there are many other core categories of informants who earn leniency for all sorts of crimes: from jailhouse snitches to mafia informants to antitrust defendants. The U.S. Sentencing Commission reports that federal defendants in every single offense category receive sentence reductions for cooperation, from murder to child pornography. In other words, no crime is off limits.

Informant deals vary widely by context: corporate fraud snitches are treated very differently from drug informants, while terrorism informants are in a class of their own. Informants with defense counsel tend to get better, determinate, documented deals. By contrast, unrepresented informants who negotiate directly with police—typically street and drug snitches—are essentially at the government’s mercy, relying on the unwritten law of the street that information and coop-eration will eventually be rewarded. In other words, while the basic contours of the snitch deal remain the same, every case has its own distinctive character.

III. How Many Are There? The Scope of the Informant Phenomenon

While informants have been around since time immemorial [ed. note: consider Judas], the past few decades have seen an explosion in their use and numbers. This is largely due to the war on drugs, but the phenomenon has spread to every area of law enforcement.

How many criminal informants are there? The first thing to note is that the government does not nor is it obligated to keep track of the informants it creates, how many crimes they commit, or how many crimes they help solve. While the federal government has started keeping some records, most state and local governments simply have no mechanism for counting their snitches. Accordingly, we can only estimate the actual number of informants based on other criminal justice data.

Drug enforcement is the biggest generator of informants. Police, prosecutors, defense attorneys and judges all de-scribe drug cases as relying on or creating informants in one way or another: informants typically provide information or make controlled buys; once arrested, drug suspects routinely become informants themselves; and a drug defendant’s co-operation may be the single largest factor in negotiating a plea bargain or determining a sentence. Indeed, some police assert that they could not investigate drug cases without informants. Since drug cases make up about one third of the U.S. criminal justice system—the largest single type of case—this means that a large percentage of our criminal process is heavily dependent on informant use.

The limited available data confirms this general picture. The U.S. Sentencing Commission estimates that approxi-mately half of all federal drug defendants cooperate in some way, although not all cooperators receive sentencing credit. This number itself likely understates the scale of the phenomenon; for example, it does not include cooperating offenders who avoid arrest and prosecution in the first place, or who cooperate with agents in informal ways that do not get docu-mented. Nevertheless, the estimate confirms widespread cooperation in drug cases.

At the same time, federal data is of limited value in assessing the number of informants at the state and local levels. This is for two reasons: the first is that the federal system is small—just a tenth of the entire criminal justice system. The second is that federal drug laws and sentencing guidelines are expressly designed to extract cooperation from defen-dants; this may or may not be true for other jurisdictions. At the same time, criminological studies of street crime and local policing indicate that snitching is widespread, perhaps even more so than federal data suggest.
Some sociologists con-clude that most street level criminals routinely cooperate with police as a matter of daily survival. So while we do not know for certain how many informants exist in the worlds of street and drug crime, snitching is clearly a pervasive reality.

Outside the world of drug enforcement, informant use has made its way into every single category of crime. The prac-tice is becoming increasingly prevalent in white collar and fraud investigations, while defendants earn cooperation credit in every category of federal offense. In sum, while the massive world of drug enforcement creates the most informants, every arena of law enforcement uses and contributes to the practice.

IV. The Special Problem of Poor, High-Crime Neighborhoods

“No single tactic of law enforcement has contributed more to violence in the inner city than the practice of seeding the streets with informers and offering deals to ‘snitches.’ . . . [R]elying on informers threatens and eventually cripples much more than criminal enterprise. It erodes whatever social bonds exist in families, in the community, or on the streets – loy-alties which, in past years, kept violence within bounds.”– Dr. Jerome Miller, Search and Destroy: African-American Males in the Criminal Justice System (1996)

Unbeknownst to the general public, the widespread use of criminal informants inflicts special harms on poor, high-crime, minority neighborhoods. Because drug enforcement is so pervasive in these communities, informant use is likewise com-mon. This means that all the dangers of snitching—more crime and violence, unreliability and distrust—are concentrated in these already vulnerable neighborhoods, sometimes with devastating results.

It has become all too well recognized that the war on drugs disproportionately targets African Americans. Although blacks and whites use and sell drugs at approximately the same rates, the justice system arrests, prosecutes and pun-ishes blacks far more often and more harshly than it does whites for the same offenses. In some states, African Ameri-cans are arrested and prosecuted for drug offenses at more than fifty times the rate of whites. The trends for Latinos are similar. The racial skew in drug enforcement largely explains why the American prison population is now overwhelmingly black and brown: 75 percent of all incarcerated drug offenders are African American or Latino.

The racial skew in drug enforcement begins in black neighborhoods. Arrest rates for African American urban residents have skyrocketed over the past two decades, in some cities by over 500%. Because police routinely pressure drug arrest-ees to become informants, this means that a growing proportion of the poor urban population is likely to encounter pres-sure to snitch at some point.

We can only extrapolate how many informants are in poor black neighborhoods. Nationally, one third of African American men between the ages of 20 and 29 are under correctional supervision: either incarcerated, on probation or on parole. But this staggering number is somewhat misleading because it is a national average. In high-income, well-educated neighborhoods, the number is much lower. Conversely, in poor neighborhoods with weak educational resources and scarce jobs, the numbers will be higher. Indeed, in cities such as Washington, D.C. and Baltimore, Maryland, as many as half of the young black men in this age bracket are under correctional supervision at any given time.

Approximately half of these supervised young men are in the justice system for a drug-related offense, either a charge of possession or distribution, or a property offense committed in order to satisfy a substance abuse problem. This group of offenders—one quarter of the young black male population—is therefore at especially high risk of becoming informants because drug offenders—with their connections to the drug economy—are so likely to be pressured to cooperate.

Of course, being pressured to snitch and actually doing so are entirely different matters, particularly in this day and age where becoming an informant can be extremely dangerous. [Editor’s Note: Given the pervasive number of informants, the physical risks are statistically quite minimal.] At the federal level, fifty percent of drug defendants cooperate, but as explained above, this may be too high a percentage for state and local jurisdictions. At the same time, sociological re-search suggests that street and local criminal offenders probably cooperate informally with police at very high rates. For the sake of argument, assume that state and local drug offenders inform at half the rate of federal offenders, in other words, at a rate of 25 percent. That would mean that for the young black male population in these high-crime pockets of poverty, half of whom are under correctional supervision, half of those are drug-related offenders, and one quarter of those—one in sixteen, or about six percent of the total—may actually be cooperating with the government.

Six percent would be a lot. It would implicate every extended family, every apartment complex, every neighborhood gathering and informal social network. It would mean that most people would know someone—maybe more than one someone—actively looking for incriminating information about others and working off their own liability in the process.

If snitching is anywhere near as pervasive in poor minority neighborhoods as this analysis suggests, it should no longer be treated solely as a law enforcement tactic. Instead, using snitches on this scale is a social policy and a deeply problematic one at that: a policy that affects the way people behave and perceive each other, the way they relate to po-lice, and the way they understand the law.

Another consequence of this policy is that the residents of poor neighborhoods are over-exposed to the dangers of snitching. When active informants commit new crimes, those crimes are visited upon the neighborhood. When informants finger innocent people, family, friends and neighbors are at risk. In other words, the costs of the law enforcement decision to rely heavily on criminal informants are borne primarily by those who can least afford it.

V. “Stop Snitching”: Community Reactions to Informant Policies

About a decade ago, I was teaching an after-school law class in a community center in inner-city Baltimore. The class was getting restless when a young boy raised his hand. He said to me:

“I got a question. Police let dealers stay on the corner ‘cuz they’re snitching. Is that legal? I mean, can the police do that?”

When I explained to him that police could indeed do that, that police have discretion to let offenders remain at large, the boy and his friends were disgusted. “Police aren’t doing their jobs!” exclaimed one teenager. “So all you got to do is snitch and you can keep on dealing,” concluded another.

These children had received a disturbing message from the criminal justice system’s heavy use of informants: that crime is negotiable and that justice is for sale. This message is one of the great, unremarked costs of snitching.

The “stop snitching” phenomenon is a product of these same neighborhoods. These days, the motto “stop snitch-ing”—sported on t-shirts or proclaimed on rap DVDs—means different things to different people. For some, it is a form of witness intimidation: in many cities police complain that a “stop snitching culture” is preventing witnesses from coming forward and impeding the government’s ability to solve serious crimes. For others, “stop snitching” expresses distrust of the police, the same kind of distrust that has long existed between police and residents of minority communities. In this context, “stop snitching” has become a new way of saying that the police are not on our side. And for yet others, “stop snitching” is just a fashion statement, a graphic on a shirt or the lyric of a song.

For all the various meanings that the “stop snitching” motto has accumulated, it bears remembering that the motto got its legs in neighborhoods that have lived with the war on drugs for over twenty years. That’s two decades of young people seeing drug dealers stay on corners “‘cuz they’re snitching.” That’s two decades of watching addicted friends and family members trading information to the police in exchange for drug money and freedom, or seeing loved ones caving under the pressure of long mandatory minimum drug sentences. In all these ways, criminal informant use has become an impor-tant if nearly invisible part of the social devastation in poor, high-crime, largely minority communities. It is also influenced by seeing the most effective “stop snitching” campaign in the country in action: the “blue wall of silence” where police mis-conduct and abuse is protected at all levels at any cost. The interesting juxtaposition is that while police and law enforce-ment use an army of informants to ferret out some criminal activity, they actively discourage informants in their own ranks.

VI. The Law

There are many legal aspects to informant use. Some have to do with police and prosecutorial power to create, re-ward and punish informants. Others govern the ways that the government can deploy informants to get information about other people. The U.S. Constitution contains procedural protections for defendants who are charged with crimes based on information from informants. A few rules limit the government’s informant authority. The overall picture is one of tremen-dous official power to create and use informants, with few restrictions or requirements.
What follows is a very general descriptive outline of the law of informant use. It is informational only and should not be construed as legal advice.

Police and Prosecutorial Discretion

The law imposes almost no restraints on police and prosecutorial authority to create and reward informants. As long as police have probable cause to believe a suspect has committed a crime, they have complete discretion to arrest or not to arrest, and the law permits them to use that opportunity to seek information. Prosecutors likewise have nearly unre-viewable discretion to make charging decisions, and can make those decisions based on a defendant’s cooperativeness or lack thereof. Police and prosecutorial discretion is the central reason why informant use remains largely unregulated and undocumented; U.S. law simply delegates decisions about who should become an informant and how they should be rewarded to individual law enforcement officials.

The law distinguishes between police and prosecutors due to their distinct legal functions. Police are essentially fact investigators and they tend to have the most direct relationship with informants, making first contact or acting as an active informant’s “handler.” Prosecutors make legal decisions about cases—such as what crimes to charge—and handle plea bargaining and sentencing negotiations. Police lack legal authority to make promises to informants about what charges will be filed—only a prosecutor can do that—although in practice, police strongly influence what crimes informants are eventually prosecuted for. Police and prosecutors may also work together designing investigations and making decisions about how to handle informants, but the law treats them differently. For example, prosecutors have absolute immunity from civil lawsuits for their decisions about how to prosecute cases (meaning that they cannot be sued at all), while police have only qualified immunity (which means they can be sued under certain circumstances). If prosecutors act like police, engaging in investigations or other non-judicial functions, they may lose their absolute immunity.

As long as the government has a legal basis for prosecution, it can wield that threat to get an informant to do almost anything. For example, in Alexander v. DeAngelo, 329 F.3d 912 (7th Cir. 2003), the Seventh Circuit Court of Appeals held that the government could legally pressure an informant to pose as a prostitute and to have oral sex with another suspect in exchange for dropping drug charges. As Judge Richard Posner put it:

“[C]onfidential informants often agree to engage in risky undercover work in exchange for leniency, and we cannot think of any reason, especially any reason rooted in constitutional text or doctrine, for creating a categorical prohibition against the informant’s incurring [costs such as] the usual risk of being beaten up or for that matter bumped off by a drug dealer with whom one is negotiating a purchase or sale of drugs in the hope of obtaining lenient treatment from the gov-ernment.”

At the same time, the court also held that the government could not coerce the defendant into having sex through lies and misrepresentations; for example, by telling the defendant that she faced a forty-year sentence when it was really only ten years, or by pressuring her not to call a lawyer. In United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992), the court held that it was legal for the government to threaten to prosecute the defendant’s seriously ill wife in order to get him to cooperate, an arrangement referred to as a “wired plea” because the treatment of one defendant is “wired” to the coopera-tion of another.

Authorizing Informant Crime

The government also has complete discretion to ignore crimes committed by its informants. Because police and prosecutors are never legally obligated to arrest or prosecute anyone, this translates into the ability to forgive informant crimes simply by failing to pursue them.

The government can also authorize informants to commit additional crimes as part of investigations, such as selling drugs. For example, the FBI’s informant guidelines specify two tiers of illegal activity—Tier One and Tier Two—that an informant can commit when authorized by his or her handler. The guidelines also specify crimes, such as violent crimes or perjury, which handlers cannot authorize. If an informant has been authorized to commit an offense, the government can-not later prosecute him for that crime. This is referred to as the “public authority” defense, or sometimes as “estoppel.” It is such a common issue that the Federal Rules of Criminal Procedure have a special section—Rule 12.3—to govern cases where defendants assert that they committed their crimes with “public authority,” meaning the government told them they could do it.

Sentencing

The main reward for being an informant is the ability to avoid criminal charges or to get a shorter sentence. The U.S. Sentencing Guidelines have a famous provision called § 5K1.1 which governs sentencing departures for cooperation, i.e., a court’s decision to give a defendant a sentence that is lower than the Guidelines would otherwise require because he or she provided “substantial assistance” to the government. Separate and apart from the Guidelines, federal drug law also imposes mandatory minimum sentences which are infamously long—sometimes decades for a first offense. 18 U.S.C. § 3553(e) permits a court to sentence a defendant below these statutory mandatory minimums if the government files a mo-tion stating that the defendant has provided “substantial assistance.” Because courts lack authority to impose shorter sen-tences without a substantial assistance motion, cooperation has become one of the only ways that drug defendants can avoid decades or even life in prison.

Investigations

Another area of law governs how informants can be used to investigate others. The Supreme Court has given the government nearly unfettered authority to use informants in investigations by exempting informant use from many of the constraints of the Fourth, Fifth and Sixth Amendments.

The seminal case in this area is Hoffa v. United States, 385 U.S. 293 (1966). In that case, the Supreme Court held that the government could use a criminal informant recruited from a Louisiana jail cell in order to get incriminating informa-tion from Teamster President Jimmy Hoffa. Because Hoffa let the informant into his hotel room and spoke freely in front of him, the Court decided that Hoffa had no reasonable expectation of privacy in that information, and therefore the govern-ment could use it without violating the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Su-preme Court has also authorized the use of wired informants to record information electronically.

Usually, the Fourth Amendment requires the government to have probable cause and a warrant before it can enter private hotel rooms or surreptitiously tape people’s statements. Before a warrant can issue, a court has to decide whether the government has enough evidence to justify the intrusion into the target’s privacy. Informants are therefore an ex-tremely powerful tool: they permit the government to seek out and even record private information without concrete evi-dence of wrongdoing or a warrant, and without asking a judge. Interestingly, several states, including Massachusetts and Pennsylvania, have rejected this broad grant of investigative authority and held that under their state constitutions, war-rantless informant recordings in private places like the home violate the right to privacy.

The Fifth Amendment is the basis for the famous Miranda warnings, under which the government cannot interrogate suspects in custody without warning them that they have the right to remain silent and the right to counsel. The Supreme Court has held that these rules do not apply to undercover informants. For example, a jailhouse snitch working for the government can question a suspect without triggering Miranda, even though if police asked those questions directly the suspect would have to be Mirandized. This rule applies only if the suspect has not yet been charged with a crime. Once formally charged, a suspect has the right to counsel and the government cannot use an informant to deliberately elicit in-formation from him about that crime.

These rules also have implications for the making of informants in the first place. Miranda warnings are required only when a suspect is in custody, so a police officer talking to a suspect on the street corner can ask questions and try to make a deal as long as the suspect is not yet arrested or otherwise prevented from leaving. In other words, the govern-ment has many opportunities to communicate with potential informants, and to use informants to get information, without constitutional restrictions.

Procedural Protections for Defendants

The last big category of informant law applies to defendants who are charged with crimes based on information from informants. Most of these rules are informational—they tell the government what information it must disclose to defen-dants about informants used in their cases, a disclosure process typically referred to as “discovery.” This section dis-cusses federal constitutional law—states can and often do adopt broader disclosure requirements.

Informant disclosure rules are very protective of the government’s ability to keep its information sources secret, par-ticularly during investigations. The closer the defendant gets to trial, however, the more the government must disclose. For example, in McCray v. Illinois, 386 U.S. 300 (1967), the Supreme Court held that the government need not disclose the identity of an informant who provides information leading to an arrest or warrant. By contrast, at trial, if the government wants to withhold its informant’s identity it must show that the defendant’s right to a fair trial will not be impaired.

In addition to identity, the government may also have to reveal other information about its informants. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the government must turn over to the defendant “all evidence favorable to an accused ... where the evidence is material either to guilt or to punishment.” As part of its Brady obligations, the government must disclose any evidence impeaching a government witness’s credibility, i.e., any evidence that sug-gests the witness might be lying. In Giglio v. United States, 405 U.S. 150 (1972), for example, the government failed to disclose that it had promised its criminal informant witness not to prosecute him in exchange for his testimony. The Court concluded that this nondisclosure violated due process because it deprived the defendant of a fair trial. Under these rules, the government must give the defense all impeachment information about its informant witnesses, such as any promised benefits, prior inconsistent statements, the informant’s prior criminal history, and any history of perjury or recantations.

These constitutional disclosure rules, however, only apply to defendants who go to trial. In United States v. Ruiz, 536 U.S. 622 (2002), the Court decided that defendants who plead guilty are not entitled to Giglio impeachment material. Be-cause 90-95 percent of all felony cases in the U.S. are resolved by plea, the vast majority of defendants will never see impeachment information about the informants who contributed to their cases. Since cases so rarely go to trial, most in-formant information therefore will never be revealed, either to the defendant, the court or the public.

What the Government Can’t Do: Outrageous Government Conduct

While the government has wide discretion in this area, there are a few doctrines that tell the government what it can-not do to and with its informants. For example, the government cannot knowingly use a lying informant as a witness, or withhold potentially exculpatory material from the defense. The government also cannot engage in “outrageous govern-mental conduct,” for example by using an informant to set up criminal activity to ensnare a defendant who otherwise would not have committed any crime. Courts rarely consider informant use to be outrageous, but it occasionally happens.

When the government uses an informant in an illegal way, the typical remedy is to overturn the conviction. The gov-ernment is rarely held civilly liable for the harmful actions of its informants, although some courts have contemplated it. A few informants have turned around and sued the government themselves, either because the government broke its prom-ises of compensation or because the informant was harmed in ways that the government could have prevented.

As this brief overview reveals, informant law is essentially a vast delegation of power to law enforcement: the gov-ernment can create, reward and deploy informants in almost any way it wants, subject to some limited disclosure rules that kick in only when defendants choose to go to trial. It is against this framework of unregulated official authority that the challenges of informant use must be understood and addressed.

VII. Problems

The pervasive use of informants throughout the U.S criminal justice system exacerbates four central problems: unreli-ability, crime, inequality and secrecy. Because informant use is so secretive, many of these problems in turn have slipped beneath the public radar.

A. Unreliability

Information obtained from informants is infamously unreliable. A 2004 study by Northwestern University Law School examined all the wrongful capital convictions discovered to date. The study concluded that over 45 percent of those inno-cence cases were due to the testimony of a lying informant, making “snitches the leading cause of wrongful convictions in U.S. capital cases.” Jailhouse snitches, in particular, have incriminated so many innocent people that numerous states are starting to consider restricting their use.

Drug informants are another troubling source of error. In a case that generated an ACLU lawsuit and inspired the movie American Violet, Derrick Megress was a drug informant in Hearne, Texas. Facing new burglary charges, the prose-cutor offered to drop charges if Megress would produce twenty new arrests. Based on Megress’s fabricated evidence, a federally-funded drug task force swept through the local housing project, arresting and prosecuting dozens of innocent residents.

Of course, sometimes informants tell the truth. The problem with informants, therefore, is not merely that they lie, but that their information is difficult to check, that police and prosecutors rely so heavily on them, and that ultimately—as nu-merous wrongful convictions demonstrate—juries often believe them. In other words, our system is not well-designed to differentiate good informant information from bad. Until we adopt better checking mechanisms, our justice system will con-tinue to be plagued by the specter of the innocent convict, behind bars based on the self-serving testimony of a criminal informant.

B. Crime

Perhaps the most fundamental compromise of informant use is that it requires the government to tolerate crime, thereby jeopardizing the integrity of the entire system. By their very nature, informant deals require law enforcement to ignore the severity of crimes committed by informants—the heart of the snitching deal. Active informants typically continue to commit new crimes in order to generate information for their handlers and to remain connected to criminal networks, from drug dealing to fraud schemes to violence. And finally, law enforcement officials routinely acknowledge that infor-mants tend to continue to offend on their own. The government may turn a blind eye to this new criminal activity, or even assist its informants in escaping punishment for these new crimes once detected.

All this informant crime—whether authorized by the government or not—has a real effect on individuals and communi-ties. Such crimes erode the quality of life in neighborhoods and undermine businesses; they strike fear and insecurity into the hearts of family, friends and neighbors. Informant crime also sends a pernicious message to victims—that the gov-ernment has decided to tolerate their suffering in exchange for the value of the informant’s cooperation. When the gov-ernment gets into the business of permitting and even promoting crime for investigative purposes, it flips the entire law enforcement endeavor on its head.

C. Inequality and the Vulnerable Informant

For all the harms they inflict, informants are often victims themselves. Like most of the criminal justice population, street and drug informants are likely to be vulnerable—suffering from substance abuse or mental health issues, and lack-ing in literacy and other skills. Because the law provides informants with so little protection, they can be subject to abuse and exploitation by law enforcement as well as other offenders. As one sociologist put it, the creation of an informant “is not a paradigm of simple bargaining between equals but, rather, a complex interaction between personnel of the criminal justice system and vulnerable people.”

In the summer of 2009, this lesson drove the Florida legislature to pass groundbreaking legislation to better protect new informants. As described at the beginning of this article, Rachel Hoffman was a young informant who was killed when Tallahassee police sent her on a dangerous sting. After her death, her parents began a public education and lobbying campaign, and the legislature eventually passed “Rachel’s Law” in her name. Rachel’s Law requires Florida police to cre-ate guidelines governing the process of creating informants, and in particular to consider a suspect’s youth and inexperi-ence, as well as the level of danger he or she might face, before making an informant deal. Potential informants must be told that police cannot make promises about the disposition of criminal charges—only prosecutors can do that.
The origi-nal draft of the legislation would also have given suspects access to legal counsel before deciding whether to become informants, but that provision was eliminated in the final version.

The lack of counsel for poor informants is particularly inequitable. Elsewhere in our justice system, it is considered fundamentally unfair to force people suspected of crimes to take on the government by themselves without a lawyer. The Sixth Amendment guarantees the right to counsel for people who plead guilty, who go to trial, and who are charged with a crime and want a lawyer during an interrogation. Informants do not yet have this right, even though the decision to snitch can be as crucial, even life-threatening, as any decision a suspect will ever make.

Of course, some informants are more vulnerable than others. While the law is the same regardless of the nature of the offense, the official culture of snitching in the white collar arena—where defendants tend to be wealthier, whiter and better educated—is very different from the world of street and drug informants. The kinds of intrusions and deals that are longstanding staples of drug enforcement—open-ended deals, lack of counsel, the toleration or even requirement of con-tinued criminal activity—are often considered inappropriate or distasteful in the white collar arena. For example, street and drug snitches routinely make deals without counsel, under heavy personal pressure from police. But when the U.S. De-partment of Justice started pressuring corporate informants to relinquish their counsel and confidentiality rights, there was a national outcry and DOJ had to revise its practices. Similarly, street and drug informants are typically offenders them-selves, and often receive rewards and punishment simultaneously. But when the IRS offered a multi-million dollar bounty payment to a Swiss banker who provided evidence about U.S. tax evaders, the blogosphere was awash with concern that the banker himself was a criminal, facing over three years for his part in the fraud.
Some of these disparities, of course, flow from real differences between street and corporate crime itself. Unlike a drug ring, most corporate behavior is perfectly legal and the government does not want to harm legitimate economic activ-ity. But the government is also much more likely to be held accountable in the white collar arena, where defendants are well-represented by counsel and often have powerful political allies. As a result, white collar snitching is far more regu-lated and restrained than its street-crime counterpart.

D. Secrecy

Snitching is inherently secretive. Investigations and informant identities must be kept confidential in order to be effec-tive. But the clandestine, undocumented nature of informant use has made the entire American criminal justice system more secretive and less accountable. Informant investigations may take place without documentation or external over-sight. Through informal snitch deals, the potential guilt of thousands of suspects is negotiated and resolved off-the-record. When cases do make it to court, documents are often sealed. Because the government does not have to disclose its in-formant deals, practices or other information, it is nearly impossible for the public to find out how the system is being run or to hold anyone accountable.

There are a myriad of ways in which the informant culture of secrecy affects the workings of the justice system. Here are just a couple of examples. In 2009, police supervisors in St. Louis became concerned about allegations that officers were using imaginary or “phantom” informants to get warrants. When supervisors asked their officers to reveal the names of their snitches, however, they refused to turn them over and the police union got a temporary restraining order against the depart-ment. The police officers argued that forcing them to reveal their informants to their own departmental supervisors would undermine their ability to use informants and jeopardize their careers. A court eventually required the police to turn over the names, but the anecdote reveals how deep-seated the culture of secrecy is, even within a single police department.

Courts also perpetuate informant secrecy, sealing cases and reducing public access to information about the criminal justice system. For example, worried about informant confidentiality and safety, several federal judicial districts eliminated public website access to criminal docket entries in 2007—not only for cases that involved informants but for all criminal cases. The year before, an Associated Press investigation revealed a system of “secret dockets” in Washington, D.C., in which nearly five thousand cases remained sealed long after they were over, and in which the system falsely indicated that there was “no such case” when certain case numbers were entered into the public court docket system.

This increasing disposition towards sealing, secrecy and restricted access is in tension with the fundamental idea that the American legal system is public. The Supreme Court has long held that members of the public, including the press, have the right to gather information about the workings of government in order to keep public officials accountable. Trans-parency ensures that the government is actually doing what it tells its constituents. Snitching—with its secret, off-the-record deals and unregulated government authority—takes the system in precisely the opposite direction.

VIII. Reforms

This is an exciting time for informant reform. From California to New York, Texas, Florida, Illinois, Nebraska and Wis-consin, states have considered or implemented new rules for making and using informants. Congress has held several hearings and federal legislation is being proposed. Here are just a few of the proposals and reforms:

• data collection on state and local informant practices

• police and prosecutorial guidelines

• providing counsel for potential informants

• rewarding informants who testify for the defense

• corroboration requirements and reliability hearings for jailhouse informants

While many of these proposed reforms are piecemeal, they are just the beginning. Public awareness about informant use is increasing, and in ten years the law and culture of informant use is likely to look very different. Such changes could help our entire criminal justice system become more accurate, more fair, and more accountable.

Alexandra Natapoff is the author of the new book Snitching: Criminal Informants and the Erosion of American Justice (New York University Press), which received a 2010 Silver Gavel Award Honorable Mention from the American Bar Asso-ciation. She is a Professor of Law at Loyola Law School in Los Angeles, and wrote this article exclusively for PLN.

 

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