Eric J. Miller

This is my last post as a guest blogger. I have greatly enjoyed the opportunity to think deeply about the problems of snitching and policing. Today I want to thing about the dangers inherent in becoming an informant.

The stop snitching movement normally focuses on the cost of snitching to the community. However, two recent cases suggest that the cost of informing can be high because the police insufficiently protect their informants. In the most recent case, from Missoula, Montana, police officers reportedly pressured Colton Peterson, a mentally ill marijuana grower to “work as a ‘cooperative defendant,’ gathering string on potentially more serious drug dealers in the area, and in exchange police would tell prosecutors he had cooperated with the investigation.” Peterson committed suicide, in part, his family claim, because of the pressure to snitch. In another case, police in Tallahassee, Florida, arrested Rachel Hoffman, a college student, “for drug possession and … g[a]ve[ her] the opportunity to avoid multiple felony charges by acting as a confidential informant for the police.” She was told to purchase drugs, including cocaine, from local drug dealers, but was killed during the undercover operation.

In each case, the police appeared to be more concerned to turn non-violent marijuana users into snitches than ensure their safety. In each case, vulnerable young individuals were preyed upon by police not simply to turn states evidence, but to go back into the field as undercover informants, in Hoffman’s case to buy harder drugs than she used, as well as to purchase a handgun. In each instance, the police were criticized for their lack of training in using informants.

Thanks again to Alexandra Natapoff for the opportunity to contribute to this blog.

A recent snitching-related phenomenon has seen citizens secretly recording police activity. Different types of recording devices have been used, from the omnipresent mobile phone, to cameras mounted in cars or, in a recent case filed in Maryland, a motorcycle helmet. The police, however, are fighting back: in Maryland, an officer caught on a tape posted on YouTube sued the arrestee under a wiretap statute for recording the encounter that led to the arrest.

While the judge ultimately threw out the case, the Maryland police are not alone in arresting individuals who record or watch them do their job. In fact, the subtext of a recent Supreme Court case, Devenpeck vs. Alford, 543 U.S. 146 (2004) concerned a police officer who (wrongfully) arrested a suspect for tape recording the arrest.

Citizens taping cops can fit the definition of snitching, if the citizen plans to use the tape to gain lenience or drop the charge. It also fits one scenario in which subjects have proved more willing to inform on lawbreakers: when the wrongdoer is a police officer.

Why do the police react so negatively to citizen video-taping? After all, the police themselves use dashboard-mounted cameras in police cars that capture traffic stops. In part, the police do so because they believe having an accurate record of the stop will most often support the officer’s version of events and undermine some of the negative attitudes towards the police.

One reason might be that citizen-sponsored videotaping (as opposed to police-sponsored taping) is a direct challenge to police control and authority. Since much of the stop-snitching phenomenon is a reaction to community perceptions of antagonistic policing or forcible policing that distances the police from the community and uses criminal informants to target low level crimes, citizen videotaping is a means of redressing the balance, by creating a record of what the police, in fact, do.

Police overreaction to citizen videotaping is best understood as a demand for a display of respect for and deference to the police. It highlights the distinction between consensual policing, of the sort that treats citizens with respect as equals, and the sort of adversarial posture that relies on criminal informants to the detriment of communication and community relations.

Here’s a snitching development from New South Wales, in Australia:

“The New South Wales Government says criminals who give evidence against other criminals will not automatically get reduced sentences because of the hardship they suffer in jail.

Attorney-General John Hatzistergos says they will get a discount for providing information to police but not an additional discount for the extra hardship they may suffer.”

The New South Wales system gave two automatic discounts to jailhouse informants. These might be characterized as the direct and collateral benefits for informing (on the lines of direct and collateral penalties at sentencing). The direct benefit was time off for the nature and quality of the information given; the collateral benefit was to compensate them for hardships suffered through requiring protective custody. Like direct and collateral penalties, one is clearly related to the criminal’s act (in the case of punishment, the crime; in the case of informing, cooperation with the government); another is regarded as regulatory in nature. In the case of punishment, there is a whole range of collateral penalties, ranging from losing the right to vote, to deportation (for eligible foreign nationals), to losing public housing, health care or welfare eligibility. In the case of informing, New South Wales treats protective custody as regulatory, and so as a matter of ensuring safety and security within prisons, rather than as an additional punishment consequent to informing.

It is unlikely that the American system would treat this type of direct/collateral benefit as legally significant. After all, the decision to reward the informant with some sentencing recommendation is well within the discretion of the prosecutor. And it’s well established that decisions regarding protective custody are regulatory rather than punitive. But New South Wales apparently had a mandatory award of time off for informants for protective custody. Apparently, the state’s rethinking of that policy reflects a tough on crime attitude on the part of prosecutors that is now catching up on prison informants.

NPR’s “This American Life” recently posted an interview with NYPD police officer Adrian Schoolcraft, who secretly recorded conversations at Bedford-Stuyvesant’s 81st Precinct. Schoolcraft’s recordings were originally published by the Village Voice, and became the subject of a five-part expose of the Bed-Stuy police’s practices. The Schoolcraft tapes revealed the extent to which modern policing is driven by a series of arrest quotas rather than increasing the quality of life for the residents of Bedford-Stuyvesant. Perversely, the 81st Precinct’s overzealous attention to the reported crime figures drove up arrests for minor crime, at the same time as driving down charges for major crimes. Put differently, the emphasis was on both the number of arrests made (busywork for the police) while at the same time proclaiming that serious crime rates were down (so reclassifying serious crimes as less severe, so as to undercut fear of crime).

Schoolcraft is a snitch: he broke the police’s own stop snitching code, the Blue Line of silence. Rarely mentioned in the snitching debates is that the police have, and celebrate, their own stop snitching code, one that is expressly designed to hide illegal or quasi-illegal activities from public scrutiny. The Blue Line is in some ways disturbingly thick: it serves not only to separate but also to distance the police from the rest of the public. The Blue Line separates the police from the public by reinforcing negative police stereotypes of the people with whom they interact on a daily basis. The Blue Line distances the police from the public by turning a blind eye to forcible and arbitrary displays of authority, of the sort that, as demonstrated in the “This American Life” interview, delegitimize the police in the eyes of the public.

Dr. Rick Frei’s “Snitching Study,” which I blogged about earlier in the week, produced an interesting statistic that is relevant here: 60% of interviewees considered it permissible to snitch on cops. That statistic is borne out, anecdotally at least, by Schoolcraft’s experience: “This American Life” revealed that Bed-Stuy residents were willing to tell him who were the cops engaged in improper policing practices. Of course, the Blue Line at the same time discounts and disvalues citizen reports on the police, while possessing the information that confirms such reports, and while enforcing police refusal to snitch on other police officers.

The impact of Schoolcraft’s revelations should not be understated. First, they bolster some statistical data from a report entitled “New York City Police Department’s ‘Stop and Frisk’ Practices,” also known as the Spitzer Report. That report found that only 61 percent of police stops cited constitutionally adequate grounds for a stop-and-frisk, with 39 percent adducing constitutionally insufficient or indeterminate grounds. Schoolcraft’s tapes suggest that the police engaged in a stop first, find probable cause (or reasonable suspicion) later policy, applied randomly to the Bed-Stuy residents.

A second feature of Schoolcraft’s recording campaign is to note that while police have become increasingly fond of police-initiated recordings, e.g., car mounted cameras, they have become increasingly suspicious of citizen-initiated recordings, using mobile phones. Here again, the citizenry undermine and question police authoritarianism through the use of camera phones to challenge, or snitch on, police-citizen encounters. There is currently a lawsuit pending in Maryland, where an officer is suing for invasion of privacy a citizen who recorded a police stop and snitched.

The authoritarian element underlying both policing by numbers and the Blue Line of silence is precisely the authoritarianism necessary for the sort of policing that relies upon snitches and confessions. Schoolcraft, and other “Good Cops” like him (to use the title of a book by David Harris) do not engage in forcible policing, but consensual policing. They do not need to use their cuffs to establish their authority. Instead of driving away all sources of information except those willing to talk for a price, policing could develop relations by engaging with the people they police. Schoolcraft’s recording suggests that consensual policing has fallen victim to policing by numbers, and at least in the 81st Precinct, officers were encouraged to cut corners but not snitch on each other at the same time they demand that the citizens they mistreated act as snitches.

Dr. Rick Frei, a professor at the Community College of Philadelphia, recently conducted a study (“The Snitching Study“) of over 1,500 community college students to determine whether there was widespread agreement among the students as to the definition of “snitching,” and what factors would increase or decrease the likelihood that a student would “snitch” on someone they knew to have committed a crime. Professor Frei also testified before the United States Senate’s Subcommittee on Crime and Drugs as to the result of his survey.

The study confirmed that most students (82.6%) regarded “ratting on someone else to get out of a crime” as snitching; whereas less than a third (28.6%) regarded “picking a suspect out of a police lineup” as snitching. While that last figure still seems higher than optimal, it is perhaps explained by another of the survey’s findings, that “half the sample said they did not trust the police,” even though 60% of respondents claimed to know a police officer personally.

Two factors in particular stood out for me. First was that “[t]he more the situation required the person to take the initiative … the more likely it was to be viewed as snitching.” (Dr. Frei’s Testimony before the Subcommittee). Least likely to be viewed as snitching (16%) was ‘[a]nswering questions from the police if you are at the scene of the crime.” Here, the student’s definition of snitching seemed to track the ACLU’s distinction between acting as an informant and acting as a witness. That may have important ramifications for the manner in which the police engage in gathering evidence from people with knowledge of criminal activity.

The second striking factor from the study was that “[n]early half of all students said that they would be more likely to cooperate if there was someone besides the police to which they could report crimes.” This factor appears to bolster the idea that the students surveyed tend to distrust the police, or perhaps what the police would do with the information — many students were less likely to snitch if the crime was non-violent. One obvious response would be to set up tipster hotlines that are not directly identified with the police, and which individuals reporting crimes could use to report incidents. Another way to approach the same problem may be to make such tipster hotlines anonymous. Anonymity impacts the most important factor inhibiting the students from acting as informants: almost thirty percent of students said they would be less likely to snitch if it would affect their reputation in the community. There are some worrying practical and legal problems with hotlines, however, and in particular anonymous tips, that I shall consider in a later post.