Michael Rich

As my brief tenure as a guest blogger here comes to an end, I just want to thank everyone for reading my contributions. I hope that I have been able to add in a meaningful way to discussions about how best to use, manage, protect, and recruit informants. For those of you who are interested, I hope that you will keep tabs on my profile on SSRN, where I hope soon to be posting my most recent work on informants, including an article discussing the moral status of informing and how that status should impact when and how police and prosecutors recruit and use informants and another contemplating the propriety and value of police encouraging civilians to commit immoral acts in the name of fighting crime. Until then, thank you.

The Massachusetts Supreme Judicial Court recently rejected a motion by Calvin Carnes, a convicted killer, to stay his appeal pending his attempts to seek a new trial on the ground that the prosecution withheld exculpatory evidence. The evidence in question was an affidavit of a jailhouse informant who claimed that Robert Turner, one of Carnes’s accomplices, confessed to the homicides. The Suffolk District Attorney’s Office justified waiting eighteen months to turn over the affidavit on the ground that they had needed time to check out the informant’s story, meet with Turner’s attorneys, and, assuming the informant’s story was true, allow Turner more time to make incriminating statements. The prosecutors further argued that the delay didn’t matter because the informant was “unreliable and untrustworthy based on his extensive criminal history and the fact that he was giving inaccurate and incomplete information.” The response of Ellen Zucker, Carnes’s attorney, is worth quoting in full:

Prosecutors use jailhouse snitches all the time when they’re seeking prosecution of somebody. In each case, they have a profile not dissimilar to Mr. Smith, [the informant in this case]. It would be very curious if the district attorney took the standard they’re applying to Mr. Smith and applied it to every jailhouse snitch they put on the stand to try to get a conviction.

Of course, a lying informant is not valuable to anyone, and it is in everyone’s best interest for the state to ensure that informants are not permitted to lie. And in the ideal world, the police and prosecutors would exert just as much effort to test the veracity of informant’s testifying for them as they do when an informant wishes to provide unhelpful testimony. But if the history of informant use has taught us anything, it is that the combination of more-or-less unbridled prosecutorial discretion, secrecy in the handling of informants, and zeal for convictions has led to inconsistent stances by states depending on whether they are relying upon or attempting to rebut informant testimony. In other words, every jailhouse informant is a lying rat unless he’s testifying for your side.

San Francisco City Attorney Dennis Herrera has filed suit seeking a civil injunction against forty-one young, African-American men who he alleges are members of two rival gangs. If granted, the injunction would impose a 10 p.m. curfew on the men and forbid them from “trespassing, selling drugs, and illegally possessing firearms, loitering, displaying gang signs, and associating in public” in a two-tenth square mile area in San Francisco. Unlike a criminal action, none of the listed individuals have a right to counsel to defend against the action and given that the injunction deals with residents of a public housing project, it is unlikely that they have the funds to hire their own. As for how the men are identified as gang members, the City Attorney’s Office applied criteria also used in other states, including Florida, Tennessee, South Dakota, and New Hampshire, for IDing gang members. Under these standards, an individual must meet at least two of ten criteria to be considered a gang member, and two of the criteria are informant-related: “Subject has been identified as a gang member by a reliable informant/source,” and, “Subject has been identified as a gang member by an untested informant or source with corroborative evidence.” Though how the criteria are applied is murky, the plain language of these two suggests that one can be identified by law enforcement as a gang member almost entirely by informant action. Indeed, if two informants, one reliable and one untested, finger the same person as an informant, that might be enough, so long as the reliable informant is deemed “corroborative evidence” for the untested informant’s identification. And, as the San Francisco case shows, the implications of such an identification are far-reaching.

In San Francisco, being deemed a gang member may mean that your First Amendment rights to association are restricted. Moreover, in California, Tennessee, Florida, South Dakota, and New Hampshire, if you’re labeled a gang member by informants, you are subject to significantly higher penalties if convicted of the same crime. In addition, your assets are more likely to be subject to forfeiture, and information about you will be stored in government databases for years. And what’s notable about most of these effects is that they occur without the same kind of due process accorded in criminal trials (the exception being the enhanced criminal penalties, which generally require that the jury find beyond a reasonable doubt that the defendant is a gang member). The result, as in San Francisco, is that when they happen there is little a resident of a inner-city, high-crime neighborhood can do about it, because they lack the resources to do so.

And the gang member identification is only one of the more formalized secondary impacts of police use of informants. By secondary, I mean tangential to the main use of informants, which is to “make” criminal cases. Other secondary effects of informant use may be increased police surveillance of alleged criminals, interactions with police that do not lead to arrests, and stigmatization within communities, leading to interpersonal and intrafamily tensions and loss of job prospects. All of these can occur when police rely on informants who are pressured to come up with evidence for their handlers, either to earn money or to work off a beef. And unlike a criminal charge, which at least will involve a defense attorney and some due process, these negative secondary effects are nearly impossible to reverse. Indeed, because police dealings with informants are hidden from public view, they are particular difficult to combat.

Ultimately, this simply means that their is more at stake when it comes to restricting informant use or making it more open to public scrutiny than “merely” criminal convictions. Police harassment, loss of privacy, impingement on civil rights, and loss of property rights also are at issue.

On Wednesday, FBI Special Agent Robert Fuller testified that the US government paid informant Shahed Hussain about $100 per day and $52,000 total for his work in helping to plan a fake plot to bomb a New York City synagogue. The four individuals that he worked with are currently on trial for their roles in the plot. In Florida, Tampa police and the FBI paid an informant approximately $2,400 per month to set up twelve alleged gang members. On its own, neither rate is extraordinary. But now in the Florida case, some of the twelve accused gang members have filed suit against the FBI, the city of Tampa, and individual officers, claiming malicious prosecution and civil rights violations. The criminal cases against alleged gang members were thrown out after a state court judge found egregious misconduct by the informant in the case. Even if the civil case is unsuccessful, the cost to the taxpayers of defending it will be significant and will certainly dwarf the money originally paid to the informant. These legal costs are an inevitable part of a system that thrives on minimal oversight and self-enforced guidelines.

The government often rewards informants for their illegal activity. A petty drug dealer is not prosecuted if she provides information on her supplier, information she would not have were she not involved in the drug trade. A member of an organized crime family receives leniency for his crimes in exchange for testimony against a crime boss. An informant is paid to assist in planning a terrorist attack and testify against the other planners. But few American cases parallel a recent incident in Germany:

German authorities in the state of Baden-Wuerttemberg are examining tax information offered by an informant detailing what may be illicit funds stashed in Swiss accounts, though they said they won’t buy stolen data.

This is only the latest in a string of cases (detailed here) in which insiders at banks in Switzerland, Luxembourg, and Liechtenstein have stolen bank account data and attempted to sell it. The potential buyers are the home countries of the owners of the accounts, to whom significant quantities of tax revenue are owed. In the best-known incident, Germany’s foreign intelligence service paid an employee of a subsidiary of Liechtenstein’s largest bank more than 4 million Euros for stolen account information on 600 Germans, many of whom were evading German tax laws. As I will attempt to explain, these cases raise interesting and important questions about the ethics and wisdom of rewarding criminal activity.

But before getting there, it’s helpful to see how the bank informants differ from the informant examples listed above. I see at least three difference. First, the bank informants stole the records for the sole purpose of profiting from them. This situation is thus different than that of the petty drug dealer or the organized crime family member, because the latter groups obtain the information they provide to the government tangentially to their initial purpose of successfully engaging in criminal activity. As a result, the connection between the illegal activity and the reward is less direct. Put another way, the government doesn’t reward the drug dealer for dealing drugs, it rewards her for information she happened to acquire while dealing drugs. It’s a fine distinction morally, but as a policy matter it’s much less likely that paying the drug dealer will encourage more drug dealing than it is that paying the thief will encourage more similar thefts.

Second, the bank informants stole the records prior to any contacts with the purchasing government entity. This differentiates them from the informant hired to infiltrate a terrorist organization who helps plan an attack, because in the latter case, but not the former, the government can play some role in authorizing, guiding, and restricting the informant’s illegal activity. In the bank informants case, on the other hand, that illegality runs unchecked until the informant chooses to come forward.

Third, the bank informants stole the records from their employers who were doing business legally in their home jurisdictions. This means that unlike in the other informant cases, there is an “innocent” victim, or at least a victim who played by the rules of its home jurisdiction. Though the banks almost certainly knew that they were assisting in criminal behavior in other jurisdictions, they at least has a colorable argument to justify their activities. The mid-level drug dealer, organized crime boss, and terrorist organization member have no such argument. Thus, the government, in purchasing the assistance of these informants, is immune from a claim that an innocent victim has been hurt alone the way.

With these distinctions in mind, the best analogy I can come up with to the current situation is that of a hacker who steals information from a credit card company that reveals illegal transactions by the card users for the purpose of selling the information to law enforcement. Such a case would raise questions somewhat different from those usually at issue in U.S. informant cases: Is it morally proper for the government to pay an informant for the proceeds of an illegal act committed without previous authorization against an entity engaged in legal activity in its own jurisdiction and for the sole purpose of obtaining such a payment? And is it good policy to do so?

With respect to the more question, the issue calls to mind other circumstances where the ends are found to justify immoral means by law enforcement. For instance, police are permitted to deceive defendants in order to obtain confessions. And prosecutors may authorize the commission of minor crimes in order to catch more significant offenders. In particular, this question reminds me of the observation that my host here has made that police often look the other way when informants engage in petty criminal activity, like theft, that harms innocent victims. But these cases are even worse in a sense, as the government is not just ignoring criminal activity against innocents, but rewarding it. On the other hand, the banks are international corporations that are aware that they are flouting the laws of other jurisdictions and not innocent residents of high-crime neighborhoods, thus indicating that the victims may not be so innocent. But regardless of exactly how the case of the bank informants compares to current police practice, paying for stolen information in this context seems to be another small expansion of the use of informants that reinforces the notion that the road to hell may well be paved with good intentions.

With respect to the policy question, the answer seems to be clearer. By paying a thief for committing a theft, one encourages more thieves to do the same. And indeed after Germany paid for the Liechtenstein records, more thieves came out of the woodwork. From a purely monetary standpoint, in an individual case the benefits, at least in terms of the lost tax revenue recovered, may outweigh the cost of the reward, but the harm caused by those future thieves who uncover minimal or no additional wrongdoing through their crime may well tip the scale in the other direction. And this calculus does not even consider the significant harm that paying these thieves would cause to the public perception of law enforcement and to their moral standing in the community as it reinforces the sense that the police are frequently in cahoots with law breakers.

Finally, to bring it home, the issues facing Germany are also facing the U.S. government, only in a less public venue: the same individual who sold account information stolen Liechtenstein’s largest bank to Germany has filed a claim with the IRS to collect a bounty for revealing information garnered from these same records about individuals dodging U.S. tax laws. But unlike in Germany, IRS regulations keep the agency’s deliberations relatively secret, meaning that the US is making its decision without the public oversight currently causing headaches to politicians in Germany.