Snitching

Criminal Informant Law, Policy, and Research

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The pressure to become an ICE informant

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The Intercept published this extensive story on the ICE informant program, how individual migrants can be coerced into becoming informants, and how the practice intersects with various aspects of the immigration apparatus: Play to Stay: Undocumented Immigrant Faces a Choice: Become an Informant for ICE or Be Deported.  The piece documents both the relatively robust regulatory structure that ICE uses to manage informants, and how it can go wrong.  From the article:

   “Working with confidential informants is a controlled process with oversight from [Homeland Security Investigations] HSI management, [Agent] Robinette said. Informants are registered and receive identification numbers. Background checks are conducted. Supervisors must approve the agreements. Indeed, ICE dedicates an entire handbook solely to informants, though its contents have not been made public. A separate HSI handbook on asset forfeiture, leaked to The Intercept and also published by the independent media organization Unicorn Riot, says that ICE should “identify, cultivate, and retain assistance” from so-called confidential informants “who are intimately involved with targeted criminal organizations.” According to the handbook, employing an informant should be a last resort, and the decision to do so should be made only after weighing the informant’s reliability against other factors. Every dollar paid to informants should be carefully considered and documented.

At the same time, ICE informant practices suffer from many of the ills that characterize informant use more generally and in less regulated environments. As the article notes, “several news stories have highlighted the pitfalls of ICE-informant relationships. Agents have fostered improper liaisons with informants. In one case, ICE knew an informant participated in killings yet continued working with him anyway (the agent was later fired). ICE, along with the FBI, uses informants and then works to deport them. ICE defenders like Robinette paint these as isolated incidents, and, of course, most ICE informants don’t make the news.”

For similar stories and additional resources see these prior posts.

Illinois Governor Makes Disappointing Move on Jailhouse Informant Law

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Last month, Illinois Governor Bruce Rauner vetoed Senate Bill 1830, a protection against wrongful convictions based on unreliable jailhouse informant testimony, despite the bill passing the legislature with bipartisan support. There will likely be an opportunity for the legislature to override the veto in November.

In Illinois, jailhouse informants have played a role in 17 wrongful convictions that have cost taxpayers $88.4 million in civil lawsuit payments and state compensation. SB 1830 would prevent wrongful convictions by requiring pre-trial reliability hearings and disclosure of specific impeachment evidence to the defense before jailhouse informant testimony is admissible in homicide, sexual, assault and arson cases. These safeguards were already implemented for capitol cases by a 2003 law, which became moot when the death penalty was abolished in Illinois in 2011.

Scott Reader, a columnist at the Journal Standard, questions the governor’s veto, particularly his explanation that jailhouse informant protections already exist for death penalty cases when Illinois hasn’t had a death penalty for seven years.

The legislature is anticipated to return and take up SB 1830 for a veto override in the fall. 

posted by Michelle Feldman


President Trump gets snitching backwards

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President Trump has attacked “flipping” and cooperation, saying that “it should almost be illegal,” according to the New York Times.  Reacting to his lawyer Michael Cohen’s plea deal, Trump says “I know all about flipping. For 30, 40 years I have been watching flippers. . . . I have seen it many times. I have had many friends involved in this stuff.”

The irony is that Trump is attacking snitching for its greatest strength:  it enables law enforcement to investigate and prosecute the wealthy, the powerful, and the politically insulated.  Think of the Enron prosecution, or the dismantling of the mafia, neither of which could have happened without cooperation deals.  Also ironically, Trump is criticizing informant use in its least problematic incarnation. When Trump’s “many friends” become defendants and informants, they will be well represented and informed about their rights and options, while their cooperation deals will be recorded, vetted, and publicly scrutinized.  Most informants, and most defendants faced with snitch testimony, will get none of these protections.  It is precisely here in the white collar and high profile political context that cooperation is best regulated, most accountable and transparent, and thus least problematic.

To be sure, there are many reasons to agree that snitching “should almost be illegal.”  It leads to wrongful convictions; it tolerates the crimes committed by informants; it coerces the most vulnerable and rewards the most culpable.  It promotes government secrecy, rule breaking, and sometimes corruption.  But its potential to hold powerful people accountable is its best feature.

Prisoners have a First Amendment right not to snitch

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The Second Circuit has decided an extraordinarily important case, Burns v. Martuscello, in which the court held that prison officials violated an inmate’s First Amendment rights when they tried to coerce him into being an informant.  Writing that “compelled speech presents a unique affront to personal dignity,” the court decided that prison officials acted unconstitutionally when they placed Burns in solitary confinement in retaliation for his refusal to snitch.

The court noted that snitching in prison can be especially dangerous, thus heightening prisoners’ First Amendment interest in refraining from speech.  The court also reasoned that forcing prisoners to snitch is analogous to forcing a person on the street to talk to the police–something the Fourth Amendment prohibits.  Finally, and importantly, the court rejected the government’s claim that forcing inmates to snitch is necessary to maintain safe prison conditions. “Coercing inmates to serve as informants,” wrote the court, “is, at best, an exaggerated response to prison concerns.”

This case has broad potential implications. Prisoners are often required to debrief or inform in order to avoid discipline or harsher conditions of confinement.  Prisoners, moreover, typically have reduced constitutional rights as compared to non-prisoners.  If inmates cannot be pressured to snitch, many other people including suspects, arrestees, criminal defendants, and immigrants, all of whom are often pressured to inform, may have new constitutional protections.

The Marshall Project covers the case here: Is There a Right Not to Snitch?

Coercion of Intelligence Informants

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Diala Shamas, staff attorney at the Center for Constitutional Rights, has just published this informative article in the Brooklyn Law Review: A Nation of Informants: Reigning In Post-9/11 Coercion of Intelligence Informants.  Here is the abstract:

“This article challenges the adequacy of the existing legal and regulatory framework governing informant recruitment and coercion practices to protect fundamental rights, informed by the Muslim-American experience. It looks at the growing law enforcement practice of recruiting informants among Muslim-American communities for intelligence gathering purposes. Although the coercion of law-abiding individuals to provide information to federal law enforcement agencies for intelligence gathering purposes implicates significant rights, it is left unregulated. Existing, albeit limited, restraints on the government agents’ ability to coerce individuals to provide information either assume a criminal context, or are driven by historical concerns over FBI corruption. As the U.S. government engages in widespread surveillance of Muslim-American communities, it relies heavily on recruiting members of those communities as informants. These individuals are targeted for their community ties, or their religious or linguistic knowledge—and not because of any nexus they might have to criminal activity. This has led FBI agents to search for coercive levers outside of the criminal process and that have far fewer procedural protections—namely, immigration and watch-listing authorities. Thus, existing protections that have evolved to prevent civil rights violations in the criminal informant context—limited as those protections may be—do not apply. In light of these expanding authorities and the significant rights at stake, this article makes several proposals that would regulate the recruitment of intelligence informants.”