Snitching

Criminal Informant Law, Policy, and Research

Blog

New article: “The Terrorist Informant”

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There is increasing public and media interest in the government’s use of terrorism informants, particularly with respect to issues of entrapment, and the impact on Muslim American communities. Professor Wadie Said at the University of South Carolina Law School has just published this article: The Terrorist Informant, 85 Washington Law Review 687 (2010), on this important subject. Here is the summary:

A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such as money and legal assistance are often the price the government pays for an informant’s services. In the years since September 11, 2001, informants have been at the heart of many major terrorism prosecutions. The entrapment defense, perhaps the only legal tool available to defendants in such prosecutions, has proven ineffective. This is evident when one considers the context of generally heightened suspicion of the Arab and Muslim communities in the United States. Further, a closer look at several of these prosecutions reveals repeated instances of suggestive and provocative activity by informants geared at obtaining a conviction, calling into question whether a genuine threat to U.S. national security actually existed in the first place. This Article argues that the government should cease its current practice of using informants to generate terrorism prosecutions.

Bump Bump Bump

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The term ‘selective abstraction’ is used in psychology to describe a flawed or prejudicial way of thinking. What occurs in this type of cognitive bias is that a person takes detail out of context and believes that while everything else in context is ignored. In lay terms it is what is ‘cherry-picking’. In essence it is not reading the whole story but then basing an argument on the bits you have selected. It is about pointing out everything that is wrong in the way informants are managed and refusing to see the huge amount of good that is done through their use. It is about turning a blind eye to informants that have been mismanaged, pretending these were isolated incidents, then refusing to learn from them. It is a very human failing. We don’t want to see what is wrong on our side. We don’t want to or can’t see another perspective because maybe if we do it means acknowledging we have not been doing things as well as we could have.

When it comes to managing informants everywhere, including the US, there are problems but there is also a significant amount of good work being done and this needs to be recognised. Citizens need to realise how valuable a resource that informants are both in regard to our safety and to the criminal justice system. If a terrorist is intent in bombing our cities then let us hope that somewhere a police officer has an informant stuck in the middle of that plot. If someone is dealing drugs outside the high school where our children attend, then let us hope that a police officer has heard about it from an informant. If one of our children has become mixed up in gang violence then let us hope that a police officer hears about that before we end up burying that child. Every law abiding citizen should be encouraging others to give information about crime to law enforcement.

But all involved in the criminal justice system need to recognise that there are problems with the way in which informants are managed at present. This is not just about protecting the rights of citizens it is also about officer safety. While there are many progressive law enforcement agencies that are attempting to raise standards there is not a collective approach and as such those improvements are likely to have limited success. Is significant change possible? I believe it is and I have seen evidence of it within a number of forward thinking US law enforcement agencies. These include the major police department that has undertaken the training of every officer in relation to the risks involved in informant management, a police department involved proactively recruiting informants to address specific threats, agencies that are writing new and better policies and the sheriff’s department that has altered business processes and implemented a comprehensive software solution to provide full accountability in all informant cases – officers with objectivity and vision.

And for the rest, in simple terms, this is what I would suggest. A national working group should be set up including representation from federal, state, municipal and tribal law enforcement with the mandate of identifying new national definitions for all aspects of informant management and to produce binding standards of behaviour for informant management. The guidance produced should set the standard for every law enforcement agency. If legislative change is required then it should be done ensuring adequate protection for all involved including informants. All officers involved in the regular use of informants, including supervisors, should undergo mandatory training to a level that meets the amount of risk involved. (And this is not an afternoon in the classroom!). Each agency should be made to keep comprehensive records of all activities informants relating to informants. Such records should be kept to evidentiary standards and on use software designed for the function. Such records modify undesirable behaviours and provide the accountability that the public want. Academics have a role to play to in researching and developing methodology that can assist law enforcement and the criminal justice process as a whole. Legislators must provide good legislation and if the public want greater accountability then they have to be prepared to pay for the changes necessary. All the changes I suggest can be done and relatively easily if the desire is there. The professionals in this key area need to avoid the select abstraction that comes from their own camp and look at these matters in a broader and more objective manner. There are in essence only two sides, those who want to destroy society and the rest. It is time the rest maybe tried a bit harder to see each other’s perspective.

And that is about it for me. Thank you taking the time to read (hopefully all) I have written. You may disagree with some or all of it, however, in the words of the philosopher Samuel Johnson: ‘I have found you an argument but I am not obliged to find you understanding.’ Hopefully you are at least thinking it through. I believe that the management of informants is an essential part of law enforcement. It saves lives, prevents crime and brings many perpetrators to justice. But perhaps there is a better way to manage informants. As A A Milne wrote in The Complete Tales of Winnie the Pooh: ‘Hear is Edward Bear coming downstairs, bump, bump bump, on the back of his head behind Christopher Robin. It is, as far as he knows, the only way of coming downstairs, but sometimes he thinks that there really is another way, if only he could stop bumping for a minute to think of it.’
John welcomes comments and can be contacted through his website www.hsmtraining.com.

“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.