Snitching

Criminal Informant Law, Policy, and Research

Alexandra Natapoff

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?

Coercion of Intelligence Informants

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Diala Shamas, staff attorney at the Center for Constitutional Rights, has just published this informative article in the Brooklyn Law Review: A Nation of Informants: Reigning In Post-9/11 Coercion of Intelligence Informants.  Here is the abstract:

“This article challenges the adequacy of the existing legal and regulatory framework governing informant recruitment and coercion practices to protect fundamental rights, informed by the Muslim-American experience. It looks at the growing law enforcement practice of recruiting informants among Muslim-American communities for intelligence gathering purposes. Although the coercion of law-abiding individuals to provide information to federal law enforcement agencies for intelligence gathering purposes implicates significant rights, it is left unregulated. Existing, albeit limited, restraints on the government agents’ ability to coerce individuals to provide information either assume a criminal context, or are driven by historical concerns over FBI corruption. As the U.S. government engages in widespread surveillance of Muslim-American communities, it relies heavily on recruiting members of those communities as informants. These individuals are targeted for their community ties, or their religious or linguistic knowledge—and not because of any nexus they might have to criminal activity. This has led FBI agents to search for coercive levers outside of the criminal process and that have far fewer procedural protections—namely, immigration and watch-listing authorities. Thus, existing protections that have evolved to prevent civil rights violations in the criminal informant context—limited as those protections may be—do not apply. In light of these expanding authorities and the significant rights at stake, this article makes several proposals that would regulate the recruitment of intelligence informants.”

Snitches snitching on snitches

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I write critically about criminal informants, but it bears remembering how they enabled the FBI to break the mafia.  In June, mob boss “Cadillac Frank” Salemme was convicted of ordering the murder of a witness.  Key witnesses against Salemme included Stephen “Rifleman” Flemmi, infamous killer informant in his own right who avoided the death penalty by testifying against Salemme and others. Salemme himself had been living under federal witness protection for having testified for the government over a decade ago.  As one lawyer commented about the old mafia leadership, “Everybody’s been burned to a crisp here by informants.”

Whether it’s good public policy to cut deals with murderers in order to go after other murderers is a subject of long debate. At least some in Congress didn’t think so–see this report: Everything Secret Degenerates: the FBI’s Use of Murderers as Informants.  It is now a violation of Department of Justice guidelines for the FBI to permit one of its informants to commit a violent crime, but violent criminals get leniency all the time in exchange for cooperation.

ALEC promotes informant legislative reform

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Better known for its advocacy on behalf of business and economic growth, the American Legislative Exchange Council (ALEC) has issued new model Jailhouse Informant Regulations.  They require state’s attorneys to keep track of informants who provide information or testimony, to record all benefits promised or given to informants, and to provide full disclosure of an informant’s criminal record, their participation in other cases, and all benefits.  Of particular note is how comprehensively the model regulations define the term “benefit”:

  “Benefit’ means any plea bargain, bail consideration, reduction or modification of sentence, or any other leniency, immunity, financial payment, reward, or amelioration of current or future conditions of incarceration in return for, or in connection with, the informant’s participation in any information-gathering activity, investigation, or operation, or in return for, or in connection with, the informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness.”

The definition recognizes that informant benefits come in many shapes and sizes, from leniency to money to improved conditions of confinement.   The definition also recognizes that informants can receive benefits for information-gathering activities even if they are never called to testify.  A strong definition is important because it captures the reality that informants are motivated by a wide range of potential rewards which can affect their behavior and reliability.

ALEC’s model regulations are consistent with reforms in other states such as Texas and Florida that are starting to require greater transparency and disclosure regarding informants.  They are a great start for other states considering reform.  They are also a great sign that the risks of informant use are now firmly part of the mainstream legislative conversation.

From the ALEC website: “The American Legislative Exchange Council is America’s largest nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism.”