John Buckley

The term ‘selective abstraction’ is used in psychology to describe a flawed or prejudicial way of thinking. What occurs in this type of cognitive bias is that a person takes detail out of context and believes that while everything else in context is ignored. In lay terms it is what is ‘cherry-picking’. In essence it is not reading the whole story but then basing an argument on the bits you have selected. It is about pointing out everything that is wrong in the way informants are managed and refusing to see the huge amount of good that is done through their use. It is about turning a blind eye to informants that have been mismanaged, pretending these were isolated incidents, then refusing to learn from them. It is a very human failing. We don’t want to see what is wrong on our side. We don’t want to or can’t see another perspective because maybe if we do it means acknowledging we have not been doing things as well as we could have.

When it comes to managing informants everywhere, including the US, there are problems but there is also a significant amount of good work being done and this needs to be recognised. Citizens need to realise how valuable a resource that informants are both in regard to our safety and to the criminal justice system. If a terrorist is intent in bombing our cities then let us hope that somewhere a police officer has an informant stuck in the middle of that plot. If someone is dealing drugs outside the high school where our children attend, then let us hope that a police officer has heard about it from an informant. If one of our children has become mixed up in gang violence then let us hope that a police officer hears about that before we end up burying that child. Every law abiding citizen should be encouraging others to give information about crime to law enforcement.

But all involved in the criminal justice system need to recognise that there are problems with the way in which informants are managed at present. This is not just about protecting the rights of citizens it is also about officer safety. While there are many progressive law enforcement agencies that are attempting to raise standards there is not a collective approach and as such those improvements are likely to have limited success. Is significant change possible? I believe it is and I have seen evidence of it within a number of forward thinking US law enforcement agencies. These include the major police department that has undertaken the training of every officer in relation to the risks involved in informant management, a police department involved proactively recruiting informants to address specific threats, agencies that are writing new and better policies and the sheriff’s department that has altered business processes and implemented a comprehensive software solution to provide full accountability in all informant cases – officers with objectivity and vision.

And for the rest, in simple terms, this is what I would suggest. A national working group should be set up including representation from federal, state, municipal and tribal law enforcement with the mandate of identifying new national definitions for all aspects of informant management and to produce binding standards of behaviour for informant management. The guidance produced should set the standard for every law enforcement agency. If legislative change is required then it should be done ensuring adequate protection for all involved including informants. All officers involved in the regular use of informants, including supervisors, should undergo mandatory training to a level that meets the amount of risk involved. (And this is not an afternoon in the classroom!). Each agency should be made to keep comprehensive records of all activities informants relating to informants. Such records should be kept to evidentiary standards and on use software designed for the function. Such records modify undesirable behaviours and provide the accountability that the public want. Academics have a role to play to in researching and developing methodology that can assist law enforcement and the criminal justice process as a whole. Legislators must provide good legislation and if the public want greater accountability then they have to be prepared to pay for the changes necessary. All the changes I suggest can be done and relatively easily if the desire is there. The professionals in this key area need to avoid the select abstraction that comes from their own camp and look at these matters in a broader and more objective manner. There are in essence only two sides, those who want to destroy society and the rest. It is time the rest maybe tried a bit harder to see each other’s perspective.

And that is about it for me. Thank you taking the time to read (hopefully all) I have written. You may disagree with some or all of it, however, in the words of the philosopher Samuel Johnson: ‘I have found you an argument but I am not obliged to find you understanding.’ Hopefully you are at least thinking it through. I believe that the management of informants is an essential part of law enforcement. It saves lives, prevents crime and brings many perpetrators to justice. But perhaps there is a better way to manage informants. As A A Milne wrote in The Complete Tales of Winnie the Pooh: ‘Hear is Edward Bear coming downstairs, bump, bump bump, on the back of his head behind Christopher Robin. It is, as far as he knows, the only way of coming downstairs, but sometimes he thinks that there really is another way, if only he could stop bumping for a minute to think of it.’
John welcomes comments and can be contacted through his website www.hsmtraining.com.

In previous blogs I have highlighted some of the perceptions that exist around law enforcement officers and their involvement in managing informants and I have made suggestions that the underlying system that has evolved contributes to many of the problems that arise. Law enforcement officers will always be in the frontline of protecting society. It is therefore incumbent upon society to set out the standards of behaviour that are expected and to provide law enforcement with the tools to do the job correctly. There seems little point in criticising a law enforcement officer for making errors with regard to behaviour when the legislators and politicians have failed to provide clarity. It is futile to criticise prosecutors for using legislation that has been put in place because citizens have asked politicians to put such legislation in place. It is somewhat hypocritical of the public to demand greater accountability of law enforcement and then not provide funding to purchase software that would help ensure greater accountability. And, if there is to be any resolution of such matters there needs to be open, frank and objective discussion about what is going wrong, why it is going wrong and what can be done to change it. My first suggestion and a subject which I have mentioned in previous blogs is that of clarity around terminology and it is to that which I return now. This is about getting the basics correct.

I have previously highlighted those individuals who are recruited and managed by law enforcement with the intention of providing evidence in legal proceedings. These should not be referred to as informants but as witnesses. I would suggest that the individuals to which the term informant could be applied fall into one of two categories. The first category is that of registered informant. (NYPD have a effective and comprehensive definition) This person will most often be someone involved in crime or from a high crime area who gives law enforcement information about ongoing criminality on a regular basis over an identified period of time. They may, or may not, take part in criminal acts on behalf of the law enforcement agency. The key point about these individuals is that they are registered with the law enforcement agency and there is a record to evidential standards of every action they do on behalf of the agency, every intelligence report they produce, every cent they have been paid and that their behaviour is authorised by a supervisor within the agency following comprehensive risk assessment. Such a process protects the informant, the law enforcement officer and the general public.

The second category of those to be considered as informants are those citizens who give information to law enforcement in the expectation that no one will know they have given such information. This information is likely to be given on a one off or ad-hoc basis. Information coming from such people is likely to include reports of suspicious activity and crime-stoppers type tips. The agency needs to keep a record of who supplies what information. Again such a record protects the person giving the information, the officer receiving the information and the general public. Such a system addresses many of the concerns raised in the stop snitching debate and is particularly well suited to community orientated policing. If the person is not a registered informant or a witness then by default they fall into this category.

While my suggestions here may appear somewhat simplistic they work. Obviously there needs to be significant guidance put in place for each category and a number of subcategories are likely to be required. However, building systems around such basic tenets ensures that appropriate resources can be directed to manage the relevant risks that surround this type of work. Obviously, there is likely to be less risk when a pastor is giving information about drug dealing in her community as opposed to someone who is involved in an organised crime group giving similar information. Hence, different risk control measures should be applied. Furthermore, if a witness is receiving significant benefit for their testimony as opposed to an ordinary witness, then it is in the interests of justice that the jury are aware of those benefits. This not does not mean the witness should be stigmatised with the label of informant, as such an action is prejudicial to the prosecution and does not serve justice.

A significant failing in any process is the corruption or misunderstanding of language. As Senator S I Hayakawa said: If we allow certain key words in our vocabulary to remain undefined, we tend to project an illusion of meaning that ultimately hinders and misdirects our thinking.

As I have stated before I welcome any comments or criticisms. I realise it is a blog but would suggest that you read all the blogs I have written to contextualise my comments. My comments are based on a significant amount of research an my function here is to add to the debate and try to suggest some solutions. In my next and final blog I will provide some other suggestions that may help address the concerns of the many different parties involved in this debate. But for now I will finish with another comment from Senator Hayakawa which I feel applies to all those law abiding individuals who have a right to a viewpoint in this debate be you a law enforcement officer, academic, politician, lawyer or civil rights activist (a role incidentally, that I firmly believe every law enforcement officer fulfils), and it is this:
You guys are saying the same thing. The only reason you are arguing is because you are using different words.

In my previous blog I opened an argument that the main problem with the management of informants is ‘the system’ that has evolved around their management. I use the term ‘system’ loosely as there is not one US system for managing informants. Different agencies use different languages have and have different processes despite attempts by both the Department of Justice and International Chiefs of Police Association, among others, to try and standardise terminology and methodology.

While inconsistency in methods and terminology mean that systems are different it doesn’t actually mean they are wrong. True …but there are too many cases that give rise for concern that it is only by burying ones head in the sand that anyone can try and defend the status quo. Citizens have died, the innocent have gone to jail and the guilty have walked free and good cops have gone bad all because of poor informant management practices.

Let’s get to the basics. Firstly the terms ‘snitch’ ‘confidential informant’ ‘human source’ (FBI), ‘cooperating witness’ and many other derivatives are all used interchangeably. They are not the same. Just as a farmer keeps a horse, a sheep, and a cow for agricultural purposes, the way he manages these animals and what he uses them for is different. It is exactly the same with citizens who are providing law enforcement with information. Categories need to be clearly identified and then the individuals managed accordingly. If we try and milk a horse or sheer a cow, things are going to get messy and the products won’t be what we were hoping for!

How we identify what category a person falls into is most easily worked by answering the simple question: In what way are the law enforcement agency’s intending this person to act? Everything else then follows from that. The first category to look at is the person who is intended to provide evidence.

A significant amount of the concerns that are articulated about ‘snitching’ revolve around persons who give evidence to obtain a lessening of their own sentence (for example 5K motions). These individuals are not informants they are witnesses. The two roles are different using the terms interchangeably or the terms snitch and/or confidential informant for both roles confuses all involved (arguably most damagingly, the jury). If it is the intention of the law enforcement agency is to use a person to give evidence against another that person is a witness. The reason the terms ‘snitch or informant’ are used relates to the individuals motive and/or perceived circumstances not the act that they are doing. Using such terms is based in human prejudice. Law enforcement wants this person to provide evidence to a court. Once such a decision is made everything that the law enforcement agency does needs to be done to ensure that the evidence is presented to the court in a manner that the jury can make an objective decision as to whether or not that person’s evidence is credible or not. This means rigorous documentation of each and every contact with that witness from the time they are first spoken to up to the time they give evidence and including details of any subsequent benefit they may receive post trial. All documentation must be of evidential standard. US law enforcement needs to devise a term for this type of person be it cooperating witness, convicted witness, prison witness or whatever but it should include the word witness for that is what they are. National legislation and policy should be drawn up to direct the evidentiary and management criteria surrounding such individuals. Whether or not the evidence of such a person requires corroboration is not for me to dictate but for the US legislature to decide. However, given the huge incentive for such a person to lie, such corroboration may be prudent.

While the US criminal justice system continues to allow confusion around terminology and role, particularly with regard to the evidentiary process, erosion of that system and loss of public confidence is inevitable. Furthermore, while such a situation continues, it helps criminals subvert communities by discouraging law abiding citizens from giving information to the police through such campaigns as that of “Stop Snitching”.

In subsequent blogs we will look at the two other categories of informant and then in more general terms at what can be readily achieved to improve the overall management of informants. I welcome any comments, concerns or criticisms.

This is true. You can’t trust anyone. Totally! All the time! Now try and live your life trusting no one. The simple truth is we make judgements on a daily basis on who we should trust and to what extent. And when it comes to the police, we do trust them – to keep us safe – but that trust is conditional and trust must be continually earned. In this piece we will take an in-depth look at some of the issues affecting the credibility of law enforcement including that which songwriter the late Harry Chapin referred to as “…a sociological phenomena that afflicts the men in blue in America…”

People do not trust the police for many reasons. Policing is, for want of a better term, ‘a sexy business’ and by this I mean that the majority of people are attracted to it. It is interesting, exciting; it involves people at their best and worst. It makes for great stories and people love stories. Policing makes for great television and great movies and so people are heavily exposed to all its facets. And at the end of the day cops are just people with all the strengths and weaknesses of the rest of us. The main difference between the police and others being is that as a group police officers are under continuous scrutiny. Their faults and failings are continually the subject of media reporting. What happens in law enforcement is we take ordinary men and woman and ask them to do an extremely difficult job and then criticise them when they do it wrong. So before the legislatures, lawyers and academics get too excited about what I will say about law enforcement officers be aware you are complicit in what goes wrong and your time in the spotlight approaches.

We will look at how police behaviour in relation to informants erodes the trust of the public and try and identify the underlying causes. In his song ‘Copper’ Chapin alludes to police officers being bribed by citizens. The matter of bribery and corruption in law enforcement is a long one that rarely makes for pleasant reading. In informant management police officers deal with criminals who have access to amounts of money and lifestyles that many a law enforcement officer would envy. Policing is often not a well paid job and the temptations are there. When police officers start mixing with criminals in the grey area that is informant management the risks of corruption increase many-fold. Statistics bandied about in UK law enforcement alluded to the fact that as much as 90% of police corruption related to informant management. Remaining on a financial theme officers are often required to pay informants significant amounts of money in return for the information provided. This money is often paid with limited supervision. The temptation for officers is great. Ten for you; ten for me! It happens.

Society wants to be safe and more importantly to feel safe. No more prevalent is this than within American culture. More so than most other Western societies, the US public is subjected to an inordinate amount of fear messages. Citizens want to know that the bad guys are being caught. This puts pressure on elected representatives, who put pressure on police chiefs, who put pressure on police commanders who put pressure on police officers — get results. (The bad stuff always moves downward!) Whether anyone involved or not including the police officers themselves they are under huge pressure to get results. If they don’t get results they will be criticised. Their promotion prospects will be curtailed, they may get moved to a less desirable posting or the pay may be reduced. The pressure comes on to get results – at any cost.

Furthermore, police officers get tired of “the bad guys” getting away with murder, robberies and destroying lives through the sale of drugs. They get fed up with the inability of the judicial system to deal with these individuals and get annoyed when highly paid lawyers get acquittals based on what they perceive as ‘technicalities’. Is there a temptation to bend the rules? You bet there is.

And if you want another hundred reasons why law enforcement officers make a mess of managing informants I can give you them but maybe the question that needs greater consideration is “Why does the system allow cops to behave in inappropriate ways?” Stephen Covey, author of The Seven Habits of Highly Effective People, writes: “If you put good people in bad systems you get bad results.”
So while it may be easy to blame the cops, and in certain circumstances some cops may well merit blame, the major problem facing US society in relation to managing informants is not those directly involved it is the system that has evolved and it is that system that needs fundamental change.

If we are to start to understand what is wrong with the way in which informants are managed we have to first start to examine the whole concept of using informants and how we, as people, are likely to perceive their use. Being an informant is intrinsically linked to the act of betraying the group (tribe) to which the informant belongs: de facto the individual causes harm to their group for the benefit of another group. From a human ‘survival’ perspective this act is destructive though to fully comprehend this statement we must return to the days when we lived in tribal groupings. Despite the fact that this maybe many years ago we are still to a greater extent conditioned by the way in which people lived then. If one of our tribe did not fully contribute to the group or worse ‘betrayed’ the tribe, then the tribe and all in it were less likely to survive; hence, the need for loyalty in the tribe and the ostracising of those who were disloyal. This perception that betrayal of any sort is wrong has been reinforced by the fact that majority of people in modern western democracies are familiar with the story of the betrayal of Jesus to the Romans by Judas. Given the significant number of people that look to the Bible for moral guidance, it can hardly be thought strange that society finds betrayal abhorrent. [As an aside, an alternative perspective on this story with real relevance to this whole debate Judas was merely a law abiding citizen who gave information on a dangerous subversive who was trying to undermine the legitimate Roman government. Truth is out there somewhere but perception is everything.] Furthermore, we are all taught well by our peers in kindergarten: “You don’t snitch to the teacher.”

Society in general is based on shared values and trust; snitching undermines this and leads to the perception that it is damaging to the fabric of our society. Finally, add to that the fact that the very nature of informing requires deceit at so many levels and we start to understand why snitching starts out with a “bad rap.” All that said, regardless of how prevalent these beliefs may be they are all up for debate!

So if we start that as a baseline many consider using informants wrong, then we must ask what do law enforcement do to alter this perception? Law enforcement agencies in the US undoubtedly are more proactive than many of their counterparts in other jurisdictions about highlighting the use of informants in solving crimes. There is not a day goes past that there are not numerous press reports of confidential informants helping to bring perpetrators to justice. So why do the public concerns remain? Perhaps many take a somewhat simplistic view – you can’t trust the police! Policing of a community is done through consent. The police are an arm of government and have a right to take away our liberty and our lives. We worry about the powers they have. We fear for what they will do and for our safety. We worry when they are secretive. Combine this with inherent senses of right and wrong and of justice and there remains a distinctly uncomfortable feeling about the use of informants.

And then law enforcement really puts the fox in the chicken house with prominent cases like the tragic deaths of Kathryn Johnston in Atlanta and Rachel Hoffman in Tallahassee and the average citizen starts to become really concerned. It is perhaps worth of note here that if we were to stick rigidly to the definition of snitching on this blog namely “Snitching” when police or prosecutors offer lenience to criminal suspects in exchange for information or cooperation” then, arguably the Kathryn Johnson case would fall outside the remit of the definition because the main problem was not directly related to the informant!

So why do law enforcement seem to hell-bent on doing things wrong? The answer is they are not. The vast majority of law enforcement officers are good people doing an extremely difficult job. They are prepared to put their life on the line so you and I can sleep safely in our beds, get up and go safely to our work and come home and enjoy time with our families. The rub here is that they are ‘people’ with all the attributes that you and I have. When you criticise a law enforcement officer over some informant case regardless of how tragic a case it is they will in all likelihood perceive it as an attack on law enforcement in general and they will adopt a defensive position. They will rationalise what has happened, become dismissive of many of the concerns and antagonistic to those raising the issues. In discussions with many law enforcement officers these and many other cases, there are a raft of different interpretations of the events with some being deeply critical of the officers or agencies involved to those defending those involved. All the points raised have validity. These law enforcement officers, from patrol officers to Chiefs have all expressed the desire to manage informants in a professional manner. So where is it going wrong?

While there are many possible explanations the first thing to acknowledge is that many law enforcement agencies try to manage confidential informants in a professional way. However, it is a high risk area of policing and a many of those directly involved people including legislatures, lawyers, chiefs of police, detectives and patrol officers fail to understand how difficult an aspect of policing this is. For too long it has been seen as part and parcel of the policing role and one that needs no training and little supervision, no legislation and little policy, minimal record keeping and little accountability. When things go wrong there is always an individual officer or individual agency to blame. There is a failure to recognise the extent of the problem and to analyse it and to identify the causes. The reality is that while many other aspects of US policing have significantly improved, the way in which informants are managed has seen little change over the years. And in a society where public expectations of behaviour and accountability have changed the situation becomes less and less acceptable as time progresses.

US law enforcement is not alone in having to deal with such concerns. Many other countries have already had to evaluate the way in which informants are managed and make significant changes. There have been public enquiries in Australia, Canada and Ireland all of which have identified serious shortcomings. In the United Kingdom, over the past twenty years, law enforcement has been subjected to a number of high profile enquiries and court cases where methods used for informant management have led to significant changes including the publication of national policy for all police forces, mandatory training and structures for all officers involved in managing informants, rights based legislation in the form of the Regulation of Investigatory Powers Act (introduced in 2000) and further legislation to deal with witness testimony coming from convicted persons in 2005. While these changes caused difficulties for law enforcement in their implementation their legacy has been a significant rise police standards and of accountability. These changes have worked in tandem with other well accepted policing concepts including Community Orientated Policing and Intelligence Led Policing.

At this juncture it is perhaps worth it for all to pause and consider where we may be. Just as post 9/11 the way in which intelligence was collected and managed was subjected to a huge amount of scrutiny, and the subsequent changes that were required, then now is perhaps an appropriate time for all with a genuine interest in this debate on informant management to take an objective look at how informants are managed within US law enforcement and how that process could be improved. The first step is recognising there is a problem. Kathryn Johnston, Rachel Hoffman, allegations of corruption in places like Philadelphia and Tulsa and the concerns over the use of confidential informants in Mosques in California are not isolated cases. They are symptoms off a much wider national malaise. US law enforcement needs to use informants but there needs to be changes in how they do it. This is not problem that can be resolved by single law enforcement agencies. It is a national problem that needs addressed at a national level and not just by law enforcement.

In upcoming blogs we will examine specific causes of some of the issues, we will look at what has been done and what is being done and most importantly the realistic and easily achievable steps that can be taken to improve the situation.