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Police as Snitches

October 15, 2010 by Eric J. Miller

NPR’s “This American Life” recently posted an interview with NYPD police officer Adrian Schoolcraft, who secretly recorded conversations at Bedford-Stuyvesant’s 81st Precinct. Schoolcraft’s recordings were originally published by the Village Voice, and became the subject of a five-part expose of the Bed-Stuy police’s practices. The Schoolcraft tapes revealed the extent to which modern policing is driven by a series of arrest quotas rather than increasing the quality of life for the residents of Bedford-Stuyvesant. Perversely, the 81st Precinct’s overzealous attention to the reported crime figures drove up arrests for minor crime, at the same time as driving down charges for major crimes. Put differently, the emphasis was on both the number of arrests made (busywork for the police) while at the same time proclaiming that serious crime rates were down (so reclassifying serious crimes as less severe, so as to undercut fear of crime).

Schoolcraft is a snitch: he broke the police’s own stop snitching code, the Blue Line of silence. Rarely mentioned in the snitching debates is that the police have, and celebrate, their own stop snitching code, one that is expressly designed to hide illegal or quasi-illegal activities from public scrutiny. The Blue Line is in some ways disturbingly thick: it serves not only to separate but also to distance the police from the rest of the public. The Blue Line separates the police from the public by reinforcing negative police stereotypes of the people with whom they interact on a daily basis. The Blue Line distances the police from the public by turning a blind eye to forcible and arbitrary displays of authority, of the sort that, as demonstrated in the “This American Life” interview, delegitimize the police in the eyes of the public.

Dr. Rick Frei’s “Snitching Study,” which I blogged about earlier in the week, produced an interesting statistic that is relevant here: 60% of interviewees considered it permissible to snitch on cops. That statistic is borne out, anecdotally at least, by Schoolcraft’s experience: “This American Life” revealed that Bed-Stuy residents were willing to tell him who were the cops engaged in improper policing practices. Of course, the Blue Line at the same time discounts and disvalues citizen reports on the police, while possessing the information that confirms such reports, and while enforcing police refusal to snitch on other police officers.

The impact of Schoolcraft’s revelations should not be understated. First, they bolster some statistical data from a report entitled “New York City Police Department’s ‘Stop and Frisk’ Practices,” also known as the Spitzer Report. That report found that only 61 percent of police stops cited constitutionally adequate grounds for a stop-and-frisk, with 39 percent adducing constitutionally insufficient or indeterminate grounds. Schoolcraft’s tapes suggest that the police engaged in a stop first, find probable cause (or reasonable suspicion) later policy, applied randomly to the Bed-Stuy residents.

A second feature of Schoolcraft’s recording campaign is to note that while police have become increasingly fond of police-initiated recordings, e.g., car mounted cameras, they have become increasingly suspicious of citizen-initiated recordings, using mobile phones. Here again, the citizenry undermine and question police authoritarianism through the use of camera phones to challenge, or snitch on, police-citizen encounters. There is currently a lawsuit pending in Maryland, where an officer is suing for invasion of privacy a citizen who recorded a police stop and snitched.

The authoritarian element underlying both policing by numbers and the Blue Line of silence is precisely the authoritarianism necessary for the sort of policing that relies upon snitches and confessions. Schoolcraft, and other “Good Cops” like him (to use the title of a book by David Harris) do not engage in forcible policing, but consensual policing. They do not need to use their cuffs to establish their authority. Instead of driving away all sources of information except those willing to talk for a price, policing could develop relations by engaging with the people they police. Schoolcraft’s recording suggests that consensual policing has fallen victim to policing by numbers, and at least in the 81st Precinct, officers were encouraged to cut corners but not snitch on each other at the same time they demand that the citizens they mistreated act as snitches.

Tribal Law and Order Act of 2010

October 12, 2010 by Alexandra Natapoff

My student, Sam Dickhut, is writing a great paper on the Tribal Law and Order Act of 2010 that incidentally raises an interesting issue about snitching. His paper, and the Act itself, responds to a recent Amnesty International study finding that a disproportionate number of rapes (two-and-a-half times the non-native population) are perpetuated against the American Indian and Alaskan Native communities of the United States. Almost one third of the rapes are committed by non-Native American visitors on tribal lands, and these stranger rapes are disproportionately likely to be violent.

A central contributing factor, Sam argues, is the case of Oliphant v Suquamish Indian Tribe, 435 U.S. 190, 193 (1978), which holds that tribal courts do not have jurisdiction over non-Indians. Accordingly, rapes must be investigated and prosecuted by the federal government. And the government faces two, snitching-related obstacles.

The first obstacle is the difficulty of obtaining information from the white communities abutting tribal lands, given variety of racial and cultural stereotypes that are applied to the rape victims. Not only are such communities unwilling to snitch on the perpetrators of sexual crimes, they dominate the jury pools, rendering it difficult to prosecute such cases to a conviction.

The second obstacle is the historically fraught relationship between the Native population and the government. Lacking specific training to deal with the cultural norms and practices that they will encounter on tribal lands, and residing outside the community, investigators and prosecutors often lack the sort of relationship with tribal officers or members, and so cannot generate the information necessary to prosecute such cases.

The Tribal Law and Order Act proposes to solve the problem of rape prosecutions, in part by increasing the law enforcement competence of the currently underfunded and under-trained tribal officers, as well as granting tribal courts additional sentencing powers. But treating the problem as one of tribal enforcement rather than federal enforcement perpetuates the idea that this is a tribal problem, rather than a federal one.

Instead, the problem of snitching should be addressed head on as the Indian Law Commission, which was created by the Act, conducts hearings over the next three years in order to develop proposals for further legislation. Alexandra Natapoff’s work on snitching, especially when read against the background of David Harris’s “Good Cops,” suggests the problem is not communities’ refusal to cooperate with the police, but the police’s lack of interest or training in dealing with specific communities in a consistently engaged and thoroughgoing manner. The Tribal Law and Order Act provides an amazing opportunity for the federal government, through the FBI and the U.S. Attorney’s office, to right current injustices as well as historical wrongs by engaging in the sort of community outreach to develop the sort of partnerships productive of understanding and trust in the target communities that stop snitching advocates consistently recommend. That work is often hard, and faces difficult cultural obstacles. But it produces the sort of policing that is the mark of the good cop, and in this case could have a major social and cultural impact.

Snitching Study

October 9, 2010 by Eric J. Miller

Dr. Rick Frei, a professor at the Community College of Philadelphia, recently conducted a study (“The Snitching Study“) of over 1,500 community college students to determine whether there was widespread agreement among the students as to the definition of “snitching,” and what factors would increase or decrease the likelihood that a student would “snitch” on someone they knew to have committed a crime. Professor Frei also testified before the United States Senate’s Subcommittee on Crime and Drugs as to the result of his survey.

The study confirmed that most students (82.6%) regarded “ratting on someone else to get out of a crime” as snitching; whereas less than a third (28.6%) regarded “picking a suspect out of a police lineup” as snitching. While that last figure still seems higher than optimal, it is perhaps explained by another of the survey’s findings, that “half the sample said they did not trust the police,” even though 60% of respondents claimed to know a police officer personally.

Two factors in particular stood out for me. First was that “[t]he more the situation required the person to take the initiative … the more likely it was to be viewed as snitching.” (Dr. Frei’s Testimony before the Subcommittee). Least likely to be viewed as snitching (16%) was ‘[a]nswering questions from the police if you are at the scene of the crime.” Here, the student’s definition of snitching seemed to track the ACLU’s distinction between acting as an informant and acting as a witness. That may have important ramifications for the manner in which the police engage in gathering evidence from people with knowledge of criminal activity.

The second striking factor from the study was that “[n]early half of all students said that they would be more likely to cooperate if there was someone besides the police to which they could report crimes.” This factor appears to bolster the idea that the students surveyed tend to distrust the police, or perhaps what the police would do with the information — many students were less likely to snitch if the crime was non-violent. One obvious response would be to set up tipster hotlines that are not directly identified with the police, and which individuals reporting crimes could use to report incidents. Another way to approach the same problem may be to make such tipster hotlines anonymous. Anonymity impacts the most important factor inhibiting the students from acting as informants: almost thirty percent of students said they would be less likely to snitch if it would affect their reputation in the community. There are some worrying practical and legal problems with hotlines, however, and in particular anonymous tips, that I shall consider in a later post.

Massachusetts Supreme Court disapproves of prosecutorial rewards to witnesses

October 5, 2010 by Alexandra Natapoff

Two witnesses in Wayne Miranda’s murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusetts Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in them or help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568. From the Court’s opinion:

We recognize that, to prove the crime charged, prosecutors often need to procure the cooperation and truthful information or testimony of reluctant witnesses. The interests of justice, however, are not well served when a witness’s reward is contingent on the conviction of a defendant, rather than the provision of truthful information or testimony.

While the Massachusetts Supreme Court should be lauded for its ethical concern, its decision is somewhat ironic. Prosecutors routinely provide far greater benefits to criminal informant witnesses, in the form of liberty and leniency, than a few thousand dollars. In many jurisdictions, these rewards can be contigent on conviction. And even when the rewards are not expressly contingent on conviction, every attorney and informant knows that a witness in a successful conviction is more likely to get rewarded.
This is why Professor George Harris [author of Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)], and I have recommended leveling the playing field by creating defense informants, i.e. rewards for informants who come forward with information that might help the defense rather than the prosecution. As it currently stands, an offender with information helpful to the defense cannot expect any benefits–only the government can give those. This lopsided arrangement is, as the Massachusetts Supreme Court pointed out, not in the interests of accuracy or justice.