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.
Posted on: Thu, 18 Jul 2013 03:07:48 +0000
Trending Topics
Recently Viewed Topics
© 2015