Snitching

Criminal Informant Law, Policy, and Research

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Snitch deals in Kilmar Abrego Garcia case

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Last week, a federal judge refused to detain Kilmar Abrego García, a Maryland resident who was wrongly deported to El Salvador and now faces criminal charges, based on what she deemed to be unreliable testimony from three different government informants. Judge Barbara Holmes described the lead cooperator as “a two-time, previously-deported felon, and acknowledged ringleader of a human smuggling operation, who has now obtained for himself an early release from federal prison and delay of a sixth deportation by providing information to the government.” Court order here. A Washington Post article — Star witness against Kilmar Abrego García was due to be deported. Now he’s being freed — describes the informant as having a long criminal history, including gun violence, in contrast with Abrego Garcia’s lack of any criminal record at all. The other two informants were family members of the main informant; in return for their testimony one is seeking release from custody (on unrelated federal criminal charges), and both are seeking deferred action on their pending deportations.

Many have commented on the counterintuitive fact that the government’s star witness has already been convicted of worse crimes than Abrego Garcia is accused of. But the informant market often flips the conventional rules of crime and punishment: letting the government use the proverbial “big fish” as an informant to catch smaller, less culpable fish. The practice is prevalent in, although not limited to, drug enforcement. This New York narcotics unit, for example, helped their informant drug dealers stay in business in exchange for turning in their low-level client drug users. An ACLU report described the same dynamic in New Jersey, under which “more culpable leaders of drug networks — the ‘kingpins’ — may get less severe punishment than underlings who play a lesser role in the drug trafficking operation.”

Perhaps the highest profile critique of this practice issued in 1966 from none other than U.S. Supreme Court Chief Justice Earl Warren, himself a former prosecutor. In its efforts to prosecute Teamsters Union President Jimmy Hoffa for a misdemeanor, the FBI dug up an incarcerated informant who was facing charges on manslaughter, kidnapping, embezzlement, assault and perjury. The informant was freed and all charges eventually dropped in exchange for his help prosecuting Hoffa. The Supreme Court validated the deal in the case Hoffa v. United States, but Chief Justice Warren dissented, complaining that “the Government reache[d] into the jailhouse to employ a man who was himself facing indictments far more serious … than the one confronting the man against whom he offered to inform.” He worried that “this type of informer … evidence[s] a serious potential for undermining the integrity of the truth-finding process in the federal courts.” Chief Justice Warren lost that argument, which is why the government is legally permitted to use, reward, and even forgive serious criminal offenders when they serve as informants against less blameworthy or dangerous people.

U.S. seeks to deport gang informant back to El Salvador

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Brought to the U.S. by the FBI as a material witness in 2023, an informant against the MS-13 gang is now facing deportation back to El Salvador. Federal officials revealed his identity during the case in which he was supposed to testify, which means that he will be identified as a snitch if he is forced to return. He is currently seeking asylum, arguing that deportation would amount to a death sentence. WBUR, an NPR public radio station, reported on the story here: U.S. wants to deport FBI informant who was set to testify in gang case in Mass.

Informants are especially vulnerable in the immigration space. For another example of an El Salvadoran informant, this one a mere teenager, who was deported notwithstanding his cooperation, see this previous post: ICE marks 17-year-old informant for deportation and death.

Using children as informants

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More civil cases in which families have sued police for harm to their children who were working as informants. The cases are collected in this blog post from Professor Jeff Welty, Professor of Public Law & Government at the University of North Carolina; the post also includes several North Carolina police department policies on using children as informants. For more on the topic, see these previous posts.

10th Circuit case could shake the foundations of snitching

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In Mendenhall v. Denver, the plaintiff is making an argument about search warrants that could completely change the informant landscape. Police got a warrant to search Michael Mendenhall’s house based on hearsay, which is to say, by repeating something that somebody else said. Mendenhall is represented by the Institute for Justice, and his attorneys are arguing that the warrant violated the plain text of the Fourth Amendment which requires that all warrants be “supported by oath or affirmation.” Since the officer swearing out the warrant had no firsthand knowledge, the argument goes, he could not properly swear to the facts in his affidavit. For this argument to prevail, the Supreme Court would have to overturn Jones v. United States, 362 U.S. 257 (1960), which permitted the issuance of a warrant based on hearsay allegations from an informant. If Mendenhall prevails, police could no longer rely on assertions from confidential informants in order to get warrants. Since the majority of warrants, and the vast majority of drug warrants, rely on informants, this would be a massive change in the law.

Here is a Reason Magazine piece on the case; amicus briefs from law professors and civil rights attorneys can be found on the IFJ page. And here is a law review article by Professor Laurent Sacharoff that explains the historical argument: “The Broken Fourth Amendment Oath,” 74 Stanford Law Review 603 (2022).

Refusing to snitch

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The Marshall Project has published this remarkable story about George Hall who refused to serve as a jailhouse informant against David Wood. David Wood is on death row and is scheduled to be executed next month in Texas.

Hall, Wood, and two other men were all incarcerated together back in 1990. According to Hall, Hall and the two other men were offered deals by Texas law enforcement to testify falsely against Wood. Hall refused; the other men agreed and helped convict Wood. From the story:

“As Hall tells it, several El Paso detectives took the three men, without handcuffs, to a hamburger joint and a police station, seating them in a room with photographs of the victims, a large coffee pot, cigarettes and snacks. They handed the men case files with crime scene photos and interview notes with other witnesses, Hall said. “David Wood is our suspect,” he recalls the detectives saying. “It’d be best if you tell us something, because we can’t let this guy walk.” Plus, there was reward money for people who helped them.”

Stories like Hall’s are rare for a number of reasons. The government only rewards inculpatory evidence — evidence that builds the state’s cases and makes defendants look guilty — not evidence that might help exonerate a defendant. Conversely, defendants can’t offer leniency at all, and offering money or a reward looks like witness tampering. Which means that all the incentives run in one direction, towards snitching for the prosecution and away from contradicting the government’s story. When someone like Hall refuses to snitch, moreover, they will not be called as a witness by the government, which means the defense might never learn about them. And coming forward like Hall did can be risky for people facing their own criminal cases: they run the risk of law enforcement disfavor or even retaliation. (This reality sits in considerable tension with the Second Circuit’s holding that prisoners have a First Amendment right against being forced to act as an informant.)

For all these kinds of reasons, when people refuse to snitch, we are unlikely to learn about it, which makes this particular story even more revealing. Story here: He Refused to Become a Jailhouse Snitch. Can He Stop David Wood’s Execution?