Snitching

Criminal Informant Law, Policy, and Research

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“Secret Justice” article

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Here’s an article I wrote for Prison Legal News entitled “Secret Justice: Criminal Informants and America’s Underground Legal System.” The article is a brief overview of many of the themes I cover in the book–here’s the first paragraph:

Although it is almost invisible to the public, the use of criminal informants is everywhere in the U.S. justice system. From street corners to jails to courthouses to prisons, every year the government negotiates thousands of deals with criminal offenders in which suspects can avoid arrest or punishment in exchange for information. These deals typically take place off-the-record, subject to few rules and little oversight. While criminal informants-sometimes referred to as “snitches”-can be important investigative tools, using them has some serious costs: informants often continue to commit crimes, while the information they provide is infamously unreliable. Taken together, these facts make snitching an important and problematic aspect of the way America does justice.

Julius and Ethel Rosenberg: punished for not snitching?

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In this month’s edition of the Monthly Review, Staughton Lynd offers this meditation on the famous Rosenbergs: Is There Anything More to Say about the Rosenberg Case? Lynd, himself a well-known anti-Vietnam War activist, quaker, historian, and attorney, argues that the Rosenbergs were executed in 1953 not so much for being part of a Russian spy ring, but because they–unlike other members of the ring–refused to give information to the govenment. From the article:

We should ask, “Why were the Rosenbergs punished so much more severely than others whose activities were comparable to theirs?” I believe Haynes and Klehr provide the answer. Each individual who “confessed” was required to do one thing more. He or she was also asked to identify (“finger”) other individuals engaged in espionage. Thus, “Fuchs’ confession in Britain led the FBI to Harry Gold in the United States. Gold’s confession in turn…quickly led the FBI to Sgt. David Greenglass. Greenglass confessed to espionage and also implicated his wife, Ruth, and his brother-in-law, Julius Rosenberg.” But, at this point, the FBI inquiry hit a snag, or what Haynes and Klehr call “stonewalling” by the Rosenbergs and Morton Sobell. That is to say, these three persons refused to snitch. …

I offer the opinion that the Rosenbergs’ execution was really all about their refusal to snitch. On the basis of a fifteen-year acquaintance with death row prisoners in Ohio, I can state that the refusal to snitch is one of the highest values of long-term prisoners. It is the essence of the “convict code.” Refusal to snitch earns a prisoner recognition as a “solid convict.” In contrast, the government wanted an unbroken chain of informants who would inform against their colleagues. When confronted by individuals who refused to confess or “deal,” the government decided to send a message to all other potential informants by killing the Rosenbergs.

Bad language

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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.

So what is wrong with the ‘System’

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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.

“You can’t trust cops!”

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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.