Snitching

Criminal Informant Law, Policy, and Research

Alexandra Natapoff

Georgia prison official loses his job for objecting to informant program

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The Atlanta Journal-Constitution reports that Georgia prison captain Sherman Maine was fired when he objected to a secret, off-the-books informant program being run in high security prisons in which informants were given cell phones.  From the story:

“Maine said the secrecy of the program makes it impossible to know if the reward is worth the risk. ‘Now every stabbing becomes suspect,’ said Maine, 45. ‘We won’t know who’s an informant or not. They’re going to get someone killed, if they haven’t already.’ . . .  Maine said [the program] reveals a lack of respect for human life while exposing the state to great liability. ‘They de-value human life to the point that it’s ridiculous,’ he said. ‘The state kept referring to (informants) as tools. They’re not tools, they’re people, and we have an obligation to protect them.’”

Maine is suing the Department of Corrections for violations of the Georgia Whistleblower Act.

Multimillion-dollar drug bounties for informants

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Bloomberg recently explored the State Department’s Narcotics Reward Program which offers bounties for information on high-ranking drug traffickers: America’s Multimillion-Dollar Bounty Program Just for Drug Lords.   As always, the program accepts the risk of rewarding and protecting serious, violent criminals in exchange for information about other potentially more serious, violent criminals.  As the article notes, “[c]ritics of the government’s rewards programs warn that huge cash bounties increase cartel violence and encourage corruption among U.S. law enforcement personnel. But the program’s success is hard to dismiss, its proponents contend.”  Other agencies, including the IRS and the SEC, offer large bounties to informants as well.

The pressure to become an ICE informant

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The Intercept published this extensive story on the ICE informant program, how individual migrants can be coerced into becoming informants, and how the practice intersects with various aspects of the immigration apparatus: Play to Stay: Undocumented Immigrant Faces a Choice: Become an Informant for ICE or Be Deported.  The piece documents both the relatively robust regulatory structure that ICE uses to manage informants, and how it can go wrong.  From the article:

   “Working with confidential informants is a controlled process with oversight from [Homeland Security Investigations] HSI management, [Agent] Robinette said. Informants are registered and receive identification numbers. Background checks are conducted. Supervisors must approve the agreements. Indeed, ICE dedicates an entire handbook solely to informants, though its contents have not been made public. A separate HSI handbook on asset forfeiture, leaked to The Intercept and also published by the independent media organization Unicorn Riot, says that ICE should “identify, cultivate, and retain assistance” from so-called confidential informants “who are intimately involved with targeted criminal organizations.” According to the handbook, employing an informant should be a last resort, and the decision to do so should be made only after weighing the informant’s reliability against other factors. Every dollar paid to informants should be carefully considered and documented.

At the same time, ICE informant practices suffer from many of the ills that characterize informant use more generally and in less regulated environments. As the article notes, “several news stories have highlighted the pitfalls of ICE-informant relationships. Agents have fostered improper liaisons with informants. In one case, ICE knew an informant participated in killings yet continued working with him anyway (the agent was later fired). ICE, along with the FBI, uses informants and then works to deport them. ICE defenders like Robinette paint these as isolated incidents, and, of course, most ICE informants don’t make the news.”

For similar stories and additional resources see these prior posts.

President Trump gets snitching backwards

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President Trump has attacked “flipping” and cooperation, saying that “it should almost be illegal,” according to the New York Times.  Reacting to his lawyer Michael Cohen’s plea deal, Trump says “I know all about flipping. For 30, 40 years I have been watching flippers. . . . I have seen it many times. I have had many friends involved in this stuff.”

The irony is that Trump is attacking snitching for its greatest strength:  it enables law enforcement to investigate and prosecute the wealthy, the powerful, and the politically insulated.  Think of the Enron prosecution, or the dismantling of the mafia, neither of which could have happened without cooperation deals.  Also ironically, Trump is criticizing informant use in its least problematic incarnation. When Trump’s “many friends” become defendants and informants, they will be well represented and informed about their rights and options, while their cooperation deals will be recorded, vetted, and publicly scrutinized.  Most informants, and most defendants faced with snitch testimony, will get none of these protections.  It is precisely here in the white collar and high profile political context that cooperation is best regulated, most accountable and transparent, and thus least problematic.

To be sure, there are many reasons to agree that snitching “should almost be illegal.”  It leads to wrongful convictions; it tolerates the crimes committed by informants; it coerces the most vulnerable and rewards the most culpable.  It promotes government secrecy, rule breaking, and sometimes corruption.  But its potential to hold powerful people accountable is its best feature.

Prisoners have a First Amendment right not to snitch

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The Second Circuit has decided an extraordinarily important case, Burns v. Martuscello, in which the court held that prison officials violated an inmate’s First Amendment rights when they tried to coerce him into being an informant.  Writing that “compelled speech presents a unique affront to personal dignity,” the court decided that prison officials acted unconstitutionally when they placed Burns in solitary confinement in retaliation for his refusal to snitch.

The court noted that snitching in prison can be especially dangerous, thus heightening prisoners’ First Amendment interest in refraining from speech.  The court also reasoned that forcing prisoners to snitch is analogous to forcing a person on the street to talk to the police–something the Fourth Amendment prohibits.  Finally, and importantly, the court rejected the government’s claim that forcing inmates to snitch is necessary to maintain safe prison conditions. “Coercing inmates to serve as informants,” wrote the court, “is, at best, an exaggerated response to prison concerns.”

This case has broad potential implications. Prisoners are often required to debrief or inform in order to avoid discipline or harsher conditions of confinement.  Prisoners, moreover, typically have reduced constitutional rights as compared to non-prisoners.  If inmates cannot be pressured to snitch, many other people including suspects, arrestees, criminal defendants, and immigrants, all of whom are often pressured to inform, may have new constitutional protections.

The Marshall Project covers the case here: Is There a Right Not to Snitch?