Snitching

Criminal Informant Law, Policy, and Research

Alexandra Natapoff

States take a fresh look at snitching

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Here’s an op-ed I wrote for The Crime Report chronicling the latest wave of state legislative reform.  Some highlights:

–       Texaspassed comprehensive reform requiring prosecutors to track and disclose their informants’ criminal history, past testimony, and benefits.  The New York Times called it “the most comprehensive effort yet to rein in the dangers of transactional snitching.” 
–       Andrew’s Law in North Dakota prohibits campus police from using students as informants.  State police may only use informants with a written agreement.  Of particular note, Andrew’s Law bans the use of child informants under the age of 16, one of very few states to do so.
–       Illinois came very close to re-instituting reliability hearings.  The state previously required them in capital cases: now that Illinois no longer has the death penalty this bill will require pretrial hearings for all jailhouse informants.
–       Montana’s Senate Bill 249 introduced comprehensive legislation that would require, among other things, electronic recording of informant statements, greater prosecutorial disclosure, pretrial reliability hearings, and cautionary jury instructions.

–       Washington recently considered two bills. One from 2016 would have required pretrial reliability hearings in all informant cases.  The other would have required enhanced prosecutorial disclosure.  Barry Scheck, founder and director of the Innocence Project, wrote that the Washington legislation was a “key advance” and that it represented an opportunity to “ensure that the strongest protections are in place for the innocent.”

Insight into FBI informant criminal activity

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The FBI reports to the Department of Justice the total “Otherwise Illegal Activity” (OIA) that it authorizes its informants to engage in. In its most recent report due to an error, some of that data was missing–the total was down from 5,261 crimes to 381. The FBI explains that “When the FBI submitted 2016 data to the Justice Department regarding the Confidential Human Source Program one tier of data accidentally was not submitted.” Presumably the FBI omitted Tier 2 crimes–the less serious tier. Here’s the story which was featured on the Marshall Project’s Opening Statement: FBI Severely Underreported How Many Times It Authorized Informants to Break the Law [Updated]

The 2017 Confidential Informant Accountability Act would expand the FBI’s reporting requirement. The FBI (and all other federal investigative agencies) would have to report to Congress, not just DOJ. And it would have to report not only the crimes it authorized its informants to commit, but all the serious crimes that it has reason to believe that its informants committed while working for the agency.

Texas passes strong new informant disclosure law

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At the recommendation of the Timothy Cole Commission, Texas has passed strong new legislation requiring the government to collect a range of data on its jailhouse informants, including prior testimony and benefits, and to turn that data over to the defense.  The bill is here.

And here is the New York Times Editorial Board’s glowing review of the new law, Texas Cracks Down on the Market for Jailhouse Snitches, calling it “the most comprehensive effort yet to rein in the dangers of transactional snitching.” The Times also notes, however, that prosecutors are supposed to turn over such evidence anyway and that further reforms are called for, such as reliability hearings and barring informants in capital cases.

Prosecutor in Willingham case tried for ethics violation, and acquitted

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Originally posted May 3:  In a rare display of potential discipline, the prosecutor who misused a jailhouse informant against Cameron Todd Willingham–John Jackson–is on trial for ethics violations.  “Specifically, the state’s lawyers contend that Jackson made a deal with a jailhouse snitch who agreed to testify against Willingham and then hid that deal from Willingham’s defense attorneys — a clear violation of both law and ethics. They say that Jackson took extraordinary measures over the next two decades to conceal his deceitful actions.” Here is the story from The Intercept.

Update May 13: The jury acquitted prosecutor John Jackson.  From The Marshall Project: “By an 11-to-1 vote, a Navarro County jury rejected claims by the State Bar of Texas that Jackson made false statements, concealed evidence favorable to Willingham’s defense and obstructed justice.”