On Sunday, 60 Minutes ran this segment entitled “Young people going undercover in war on drugs.” The story covered several examples that have been in the news, including the recent Buzzfeed investigation into the student informant program at Ole Miss, the death of college student Andrew Sadek in North Dakota, and the death of Rachel Hoffman in Florida. More examples are here. For a thorough look at the ways that young informants are pressured and used, read the New Yorker article The Throwaways.
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Call for federal investigation of Orange County
The jailhouse snitch scandal in Orange County continues to escalate. In November, Dean Erwin Chemerinsky, former California Attorney General John Van de Kamp, and numerous other legal experts (including me), called for a federal investigation. Here is the letter to U.S. Attorney General Lynch. A month earlier, the New York Times Editorial Board identified the “blatant and systemic misconduct in the Orange County District Attorney’s Office” and also called for a federal investigation. Meanwhile, the OC Register published this special report entitled “How jailhouse informants and the ‘snitch tank’ put Orange County justice system in turmoil.”
BuzzFeed investigation into student informants
BuzzFeed has been running a revealing investigation into how police–including campus police at Ole Miss–in Oxford, Mississippi have been pressuring students and college-age residents into becoming informants. Here are links to the most recent articles:
How Mississippi Discovered The Drug War’s “Golden Egg” (April 20, 2015): A small-town narcotics unit has built a team of confidential informants by arresting low-level-offender college students and pressuring them to flip.
How Mississippi Cops Threaten College-Age Kids Into Becoming Informants (Oct. 1, 2015): A recording of two officers from Oxford, Mississippi’s Metro Narcotics unit sheds light on how the unit pressures college-age suspects into becoming informants.
From the most recent article:
“[E]ach year Metro Narcotics enlists an average of 30 informants, most of whom have little connection to the drug scene other than as low-level buyers. Around half of the 240 or so people arrested by Metro Narcotics in 2014 were first-time offenders, and the unit made three times as many arrests for marijuana as for any other drug. To get these young men and women to cooperate, the unit’s four agents often threaten them with prison sentences or a life-long drug record.”
The article also includes transcripts of a conversation between police and two young potential informants in which police threatened the young pregnant woman with an unrealistical 30-year sentence, and got her boyfriend–who had no drug charges or contacts–to agree to become a drug informant to ‘work off’ his girlfriend’s charge. The two young people initially agreed, but then decided not to become informants after they consulted with an attorney.
9th Circuit panel intervenes in prosecutorial misconduct
During appellate argument, a Ninth Circuit panel of federal judges lambasted the California Attorney General’s office for failing to discipline a prosecutor who lied about rewarding a jailhouse snitch. Los Angeles Times story and video of argument (beginning at 16:00 minutes) here. The panel, which included Judges Kozinski, Wardlaw and Fletcher, instructed the government attorney to go back to his office and tell the Attorney General to act on the matter.
U.S. DOJ criticizes DEA informant program
The Office of the Inspector General (OIG) of the U.S. Department of Justice has just released this report, Audit of the Drug Enforcement Administration’s Confidential Source Policies and Oversight of Higher-Risk Confidential Sources.
This is an important report for a number of reasons. The press and the public have had trouble getting basic information from the DEA about its informant policies and usage: this audit fills in some of those informational gaps. The audit identifies numerous troubling practices within the DEA and offers new insights into the kinds of risks that are routinely run by federal officials who rely on criminal informants. The audit also strengthens the case for a pending bill in Congress entitled “The Confidential Informant Accountability Act,” H.R. 2985, introduced by Rep. Stephen Lynch (D-MA). That bill would require the DEA, along with the FBI and other federal investigative agencies, to report to Congress the serious crimes committed by their informants, as well as their payments and rewards. As described in greater detail below, the OIG found that the DEA was seriously deficient in documenting and controlling the crimes committed by its informants.
Highlights of the Report:
1. The DEA resisted the audit. As the report put it, “the DEA has seriously impeded the OIG’s audit process, which has affected our ability to conduct a timely, full, and effective review of the DEA’s Confidential Source Program. The DEA made attempts to prohibit the OIG’s observation of confidential source file reviews and delayed, for months at a time, the provision of confidential source information and documentation.” The audit is therefore ongoing. This resistance to oversight is consistent with the general culture of secrecy surrounding informant use, in which law enforcement is often resistant to disclosing its practices, even to its own direct supervisors. See, for example, this post.
2. The DEA permits its informants to deal drugs and commit other crimes without adequate supervision or oversight. The U.S. DOJ has guidelines for its investigative agencies that require certain procedures before an informant can be authorized to commit a crime. The DOJ Guidelines, which are here, distinguish between Tier One and Tier Two Otherwise Illegal Activity (OIA). Tier One OIA includes very serious offenses and requires authorization from agency supervisors and a prosecutor.
The DEA does not follow these guidelines. For example, the DEA explicitly excludes “the purchase of drugs or other undercover activities that are routinely performed by DEA Agents and CSs [confidential sources] during the normal course of their duties” from the kinds of “sensitive activities” that require supervisory approval within the DEA. The only drug transactions for which the DEA rules require a prosecutor’s approval are those involving amounts under U.S. Sentencing Guidelines 2D1.1(c)(1), which are the highest amounts documented in the guidelines, and include 90 KG or more of heroin, 450 KG or more of cocaine; 25.2 KG or more of cocaine base (crack); 90 KG or more of PCP; and 45 KG or more of Methamphetamine. Amounts less than this do not require prosecutorial approval. The report concludes:
“We believe the DEA’s policies do not adequately address the concerns and risks involved in authorizing confidential sources to conduct and participate in OIA and do not correspond to the AG Guidelines’ requirements in place to mitigate these risks….DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA. Further, an ill-considered or unclear decision to authorize a confidential source to engage in OIA may create significant difficulties in prosecuting the source or co-conspirators on charges related to the source’s activities.”
3. The DEA rarely reviews the relationships between its agents and their long-term informants (over six years), and when they do, the review is cursory. This is historically and famously problematic: the DOJ Guidelines were themselves a direct response to the FBI’s disastrous long-term relationships with its mafia informants.
4. The DEA pays some of its informants death and disability benefits when they are injured or killed in connection with their informant activities.