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On Wednesday, FBI Special Agent Robert Fuller testified that the US government paid informant Shahed Hussain about $100 per day and $52,000 total for his work in helping to plan a fake plot to bomb a New York City synagogue. The four individuals that he worked with are currently on trial for their roles in the plot. In Florida, Tampa police and the FBI paid an informant approximately $2,400 per month to set up twelve alleged gang members. On its own, neither rate is extraordinary. But now in the Florida case, some of the twelve accused gang members have filed suit against the FBI, the city of Tampa, and individual officers, claiming malicious prosecution and civil rights violations. The criminal cases against alleged gang members were thrown out after a state court judge found egregious misconduct by the informant in the case. Even if the civil case is unsuccessful, the cost to the taxpayers of defending it will be significant and will certainly dwarf the money originally paid to the informant. These legal costs are an inevitable part of a system that thrives on minimal oversight and self-enforced guidelines.

The government often rewards informants for their illegal activity. A petty drug dealer is not prosecuted if she provides information on her supplier, information she would not have were she not involved in the drug trade. A member of an organized crime family receives leniency for his crimes in exchange for testimony against a crime boss. An informant is paid to assist in planning a terrorist attack and testify against the other planners. But few American cases parallel a recent incident in Germany:

German authorities in the state of Baden-Wuerttemberg are examining tax information offered by an informant detailing what may be illicit funds stashed in Swiss accounts, though they said they won’t buy stolen data.

This is only the latest in a string of cases (detailed here) in which insiders at banks in Switzerland, Luxembourg, and Liechtenstein have stolen bank account data and attempted to sell it. The potential buyers are the home countries of the owners of the accounts, to whom significant quantities of tax revenue are owed. In the best-known incident, Germany’s foreign intelligence service paid an employee of a subsidiary of Liechtenstein’s largest bank more than 4 million Euros for stolen account information on 600 Germans, many of whom were evading German tax laws. As I will attempt to explain, these cases raise interesting and important questions about the ethics and wisdom of rewarding criminal activity.

But before getting there, it’s helpful to see how the bank informants differ from the informant examples listed above. I see at least three difference. First, the bank informants stole the records for the sole purpose of profiting from them. This situation is thus different than that of the petty drug dealer or the organized crime family member, because the latter groups obtain the information they provide to the government tangentially to their initial purpose of successfully engaging in criminal activity. As a result, the connection between the illegal activity and the reward is less direct. Put another way, the government doesn’t reward the drug dealer for dealing drugs, it rewards her for information she happened to acquire while dealing drugs. It’s a fine distinction morally, but as a policy matter it’s much less likely that paying the drug dealer will encourage more drug dealing than it is that paying the thief will encourage more similar thefts.

Second, the bank informants stole the records prior to any contacts with the purchasing government entity. This differentiates them from the informant hired to infiltrate a terrorist organization who helps plan an attack, because in the latter case, but not the former, the government can play some role in authorizing, guiding, and restricting the informant’s illegal activity. In the bank informants case, on the other hand, that illegality runs unchecked until the informant chooses to come forward.

Third, the bank informants stole the records from their employers who were doing business legally in their home jurisdictions. This means that unlike in the other informant cases, there is an “innocent” victim, or at least a victim who played by the rules of its home jurisdiction. Though the banks almost certainly knew that they were assisting in criminal behavior in other jurisdictions, they at least has a colorable argument to justify their activities. The mid-level drug dealer, organized crime boss, and terrorist organization member have no such argument. Thus, the government, in purchasing the assistance of these informants, is immune from a claim that an innocent victim has been hurt alone the way.

With these distinctions in mind, the best analogy I can come up with to the current situation is that of a hacker who steals information from a credit card company that reveals illegal transactions by the card users for the purpose of selling the information to law enforcement. Such a case would raise questions somewhat different from those usually at issue in U.S. informant cases: Is it morally proper for the government to pay an informant for the proceeds of an illegal act committed without previous authorization against an entity engaged in legal activity in its own jurisdiction and for the sole purpose of obtaining such a payment? And is it good policy to do so?

With respect to the more question, the issue calls to mind other circumstances where the ends are found to justify immoral means by law enforcement. For instance, police are permitted to deceive defendants in order to obtain confessions. And prosecutors may authorize the commission of minor crimes in order to catch more significant offenders. In particular, this question reminds me of the observation that my host here has made that police often look the other way when informants engage in petty criminal activity, like theft, that harms innocent victims. But these cases are even worse in a sense, as the government is not just ignoring criminal activity against innocents, but rewarding it. On the other hand, the banks are international corporations that are aware that they are flouting the laws of other jurisdictions and not innocent residents of high-crime neighborhoods, thus indicating that the victims may not be so innocent. But regardless of exactly how the case of the bank informants compares to current police practice, paying for stolen information in this context seems to be another small expansion of the use of informants that reinforces the notion that the road to hell may well be paved with good intentions.

With respect to the policy question, the answer seems to be clearer. By paying a thief for committing a theft, one encourages more thieves to do the same. And indeed after Germany paid for the Liechtenstein records, more thieves came out of the woodwork. From a purely monetary standpoint, in an individual case the benefits, at least in terms of the lost tax revenue recovered, may outweigh the cost of the reward, but the harm caused by those future thieves who uncover minimal or no additional wrongdoing through their crime may well tip the scale in the other direction. And this calculus does not even consider the significant harm that paying these thieves would cause to the public perception of law enforcement and to their moral standing in the community as it reinforces the sense that the police are frequently in cahoots with law breakers.

Finally, to bring it home, the issues facing Germany are also facing the U.S. government, only in a less public venue: the same individual who sold account information stolen Liechtenstein’s largest bank to Germany has filed a claim with the IRS to collect a bounty for revealing information garnered from these same records about individuals dodging U.S. tax laws. But unlike in Germany, IRS regulations keep the agency’s deliberations relatively secret, meaning that the US is making its decision without the public oversight currently causing headaches to politicians in Germany.

There is no shortage of slang terms for informants: “weasels,” “rats,” “stool pigeons,” and, of course, “snitches.” And none imply positive things about those who assist the police. According to the Oxford English Dictionary, to “weasel” means “to escape from or extricate oneself out (of a situation, obligation, etc.), esp. dishonourably.” A “rat” is “a man who is deceitful or disloyal in a romantic relationship,” “a person who deserts his or her party, side, or cause,” “a person who gives information, esp. of an incriminating nature, on another person to the police or other authority, an informer.” And to “snitch” is “to inform upon or on a person” or “to take surreptitiously, purloin.” Yet, despite the negative connotations of these slang terms, they (and particularly “snitch”) are used synonymously with “informant” in journalism and academic debate, where at least the appearance of neutrality is valued. For instance, a search of news articles over the past year finds thousands of uses of the word “snitch.” Many of course are found in direct quotations or a similar context, but some simply refer to informants as snitches, and thus import the negative connotation into a presumably neutral forum. A fair number of law review articles incorporate the word “snitch” in the title. And this blog is called, “Snitching Blog.”

To some extent, of course, the use of slang synonyms is unavoidable as authors and reporters seek to avoid repetition. But I raise the issue because I wonder to what extent the use of a term like “snitch” improperly colors the debate over the proper role and treatment of confidential informants. Some, like Paul Butler, have argued that the term “snitch” refers only to a subset of confidential informants and do not include those civilians who assist the police out of a sense of civic duty. I don’t disagree that were this distinction adhered to in practice, it would be valuable, but the use of the word “snitch” is sufficiently indiscriminate to raise concerns that in academic and journalistic discussion those good citizens are being painted with the same brush as criminals who turn in their accomplices.

The city of Atlanta has agreed to pay $4.9 million to the family of Kathryn Johnston, a 92-year-old woman who was killed by police acting on a false tip from an unregistered informant. The police then planted drugs in Johnston’s home to cover up their failure to follow the law and Atlanta Police Department policy on informant use. (A fuller account of the Johnston case can be found here.) The settlement properly reflects the egregious nature of the misconduct in the case, but the more important question is whether the settlement can properly be said to bring “[o]ne of the most divisive chapters in the history of the Atlanta Police Department . . . to a close.” While it certainly marks the end of what the court system can do to assuage the pain caused by Johnston’s death, the settlement marks the end of the chapter only if the steps that the APD and the City of Atlanta have taken to make sure that a similar incident does not happen again are likely to be effective.

The APD has attempted to fix the problems that led to the Johnston tragedy by reorganizing its Narcotics Unit and strengthening its Office of Professional Standards (which houses the department’s Internal Affairs and Corruption Units). While these steps are positive, they continue to rely on the police to self-regulate, a task that the APD and police departments generally often do poorly. (In Atlanta’s case, a report written in response to the Johnston incident found repeated breaches of APD policies and a police culture that ignored these breaches.) Indeed, if Johnston’s death was the result of “rogue officers,” strengthened policies are unlikely to prevent future tragedies.

Atlanta City Council, apparently skeptical of the APD’s ability to self-police, reacted to the Johnston tragedy by creating a Citizen Review Board and empowering it to investigate citizen complaints against the APD. The creation of the CRB is a positive step away from unfettered police discretion and toward civilian oversight.

But informant use presents a unique problem that this CRB (and others like it) is ill-suited to address. In particular, Atlanta’s CRB has the authority only to respond to citizen complaints. Such complaints provide an effective oversight mechanism only for misconduct that is likely to be reported. For example, civilians who are subject to excessive use of force or who suffer false arrest or imprisonment are likely to bring complaints to the CRB. But police use (and misuse) of informants takes place almost entirely in secret, and those civilians who might have knowledge of police misconduct — the informants themselves — are unlikely to report it. After all, informants frequently assist the police under threat of criminal prosecution for a prior offense. And any complaint to a CRB by such an informant will likely result in the informant’s incarceration, thus creating a strong disincentive to report misconduct.

For instance, prior to raiding Johnston’s home, APD officers stopped a suspected drug dealer, planted drugs on him, and threatened to arrest him if he didn’t provide information to incriminate someone else. That dealer falsely told police that a dealer with a significant amount of cocaine was at Johnston’s home. The police then lied on an affidavit to secure a warrant, thus leading to the fatal raid. As this recounting shows, a CRB would not have prevented the Johnston incident, both because there was no time for a citizen complaint to be filed and because the informant was unlikely to complain for fear that the police would follow through on their threat of prosecuting him for the planted drugs. Instead, police misuse of informants will likely come to light only in situations like the Johnston tragedy, where an innocent civilian is injured, killed, or falsely imprisoned as the result of police misconduct. Meanwhile, the more run-of-the-mill misconduct involving false or fabricated informant testimony (used to incriminate the actually guilty), informants permitted to continue to engage in low-level criminal conduct, and informants coerced into engaging in dangerous activities with little to no training will continue unchecked.

Of course, bad actors intent on misconduct are difficult to deter completely, but two approaches would work better than those taken in Atlanta. First, affirmatively obligating the police to report on informant use would allow for insight into systemic problems before they lead to incidents like the Johnston tragedy. For instance, it is likely that the events leading to Johnston’s death were not the first time that the officers involved had fabricated informant testimony. Informant use data might have identified them as wrongdoers due to informant use at a rate or in a manner inconsistent with their fellow officers.

Second, forbidding the police and prosecutors from trading pre-conviction leniency for informant assistance would make tragedies like the Johnston incident less likely. I’ve argued that many such bargains violate the Thirteenth Amendment, but regardless of the basis for the prohibition, such a ban would have two positive effects. The first is that it would place the informant-state relationship under the supervision of the courts, which could guarantee that informants are used appropriately. The second benefit is that a ban would make police hesitant to offer such deals and civilians would be less likely to accept them, knowing that they are prohibited and thus unlikely to be honored. In the Johnston case, such a ban may have prevented the police from receiving the false information tying Johnston’s home to drug dealing and thus prevented her death.

The problem of informant misuse is a difficult one, but tragedies like Johnston’s death deserve solutions that are tailored to the problems that cause them.