Blog

Yesterday, Hal Turner, a shock jock and blogger popular with the Ku Klux Klan, Aryan Nations, and American Nazi movements, testified in his own defense at his criminal trial. Turner is charged with making threatening blog posts about Judges Posner, Bauer, and Easterbrook of the Seventh Circuit Court of Appeals, in which he suggested that the three judges deserved the same fate as District Court Judge Joan Lefkow for a decision upholding handgun bans in Chicago and a suburb. Judge Lefkow’s husband and mother were murdered in 2005. Turner’s defense is that the posts were not actual threats, and his testimony outlined his four-year stint as an FBI informant.

Between 2003 and 2007, Turner was paid by the FBI to attend gatherings of white extremists and gather evidence about their activities. He testified that his FBI handlers also encouraged him to use inflammatory rhetoric in order to flush out those responsible for the murders of Judge Lefkow’s husband and mother. This rhetoric, he claimed, was no more inflammatory than that which led to the criminal charges, and he testified that his FBI handler praised him for his rhetoric and assured him that it was not illegal.

This case raises two issues: first, it’s an excellent example of a conundrum facing law enforcement. On one hand, it is difficult to infiltrate and prosecute organized crime, like white power groups, without people on the inside. On the other, the people on the inside willing to cooperate with the government are, in some sense, doubly odious, as they are both criminals and willing to be disloyal to their peers. Thus, to the extent that the state cooperate with them and encourages their activities, the state is painted with the same brush. Here, the FBI’s reputation is necessarily tarred by its relationship with Turner, who made money both for egging on and celebrating white supremacists and for turning them in to the police.

This problem is multiplied when the government then prosecutes the informant for activities similar to those for which the government previously paid the informant. Then, as here, the state risks appearing hypocritical on top of being moral suspect for its affiliation with criminals. This further weakens law enforcement credibility with civilian populations that already have a tendency not to trust the police.

The second issue is that by previously encouraging activities similar to those that form the basis of the current criminal charge, the FBI has made it exceedingly difficult to obtain a conviction against Turner. According to Turner, his FBI handler assured him that his earlier statements about Judge Lefkow were not criminal. Now he faces charges for similar statements. Though there may be legally important distinctions between the two sets of statements, those distinctions are fine, and the state is in a very difficult position trying to argue them to a lay jury. Thus, it is not surprising that the case against Turner already has ended in mistrials twice.

The police department in Jacksonville, North Carolina is facing criticism for using a fugitive as an informant in a drug sting. The sting resulted in 394 felony counts charged against 45 suspects, though these numbers paint a misleading picture of the sting’s success. First, the charges have resulted mainly in sentences of probation and in little jail time. Moreover, at least two of those targeted in the sting have claimed that the informant fabricated drug buys. The trial of one ended in a hung jury, and police are concerned about the credibility of the informant in light of his fugitive status. Finally, the informant, who is accused of shaking a five-month-old child so hard that she suffered a broken arm, cracked ribcage, and retinal bleeding, has yet to face any possible punishment for an offense allegedly committed almost two years ago.

These problems are neither surprising nor rare. Others (including Professor Natapoff and myself) have explored the issues: that drug informants often do little to get criminals off the street, instead churning cases targeting minor offenders; that they fabricate evidence leading to false convictions; and that the alliance between police and criminals like the informant in this case cast the police in a negative light and call into question their standing to enforce the criminal laws.

But what is interesting about this case is that the use of this informant was in flagrant violation of Jacksonville Police Department policy, which says that no individuals wanted on a warrant can be used as a confidential informant. The policy no doubt is meant to prevent the problems here, as fugitives are less credible as witnesses, have a significant incentive to fabricate evidence, and diminish police credibility. And the need for such a policy is real: an individual with an outstanding warrant is a prime target of an officer seeking an informant because the potential sentence hanging over the individual’s head is excellent leverage to recruit her.

But, as this case shows, the existence of a policy is at best only a laudable first step toward responsible informant use, and one that inevitably fails unless the policy is enforceable, compliance with it is transparent, and police are held accountable for violations.

On the enforceability front, courts have repeatedly declined to allow injured civilians (including informants) to enforce violations of police procedures. This means that police, like wolves guarding the chicken coop, enforce their own rules. In most cases, then, breaches of policy are enforced only when public outcry requires it, as in the Rachel Hoffman case in Tallahassee. And in this case the JPD administration provides little hope that its policies will be enforced, as the JPD’s deputy chief has said that an investigation will occur only “if a violation of policy is brought to [the JPD’s] attention.”

This raises the issue of transparency. Typically neither internal police guidelines nor the specifics of any informant case are made public. (In Tulsa, Oklahoma, for instance, the police department grudgingly released its policy on informant use while making clear that the policy did not fall within Oklahoma sunshine law. Moreover, though Tulsa’s policies are reportedly “grounded in national standards,” the former police chief acknowledged that policies are worthless if they’re not enforced.) Here, the JPD refuses to release the name of the informant. And when the informant finally was arraigned, he received an unsecured bond before the detective investigating the outstanding charges even had an opportunity to speak to him. With proceedings cloaked in secrecy, it is nearly impossible for there to be independent investigation of potential past wrongdoing or for current violations to be uncovered.

Finally, most police procedures lack accountability. The procedures themselves generally do not include any punishment for violators, and courts are loathe to undermine a criminal case based solely on violations of police procedures. As a result, police have very little incentive to abide by their own procedures when, as they inevitably do, police perceive the policies as making their jobs more difficult. And the incentives to violate procedures are significant: police often are assessed and rewarded based on how many arrests they make, regardless of how those arrests are made. (In this case, one of the officers involved in the sting was promoted, though it is unclear if there is any causal connection between the sting and the promotion.)

These problems are not unique to informants, of course. The vast expanse of police and prosecutorial discretion is a frequently-explored phenomenon, and this is just one of the many areas where that discretion, which depends entirely on the assurance of state agents that they can be trusted to govern themselves, is problematic.

Nevertheless, the case in Jacksonville goes to show that while pushing for policy changes is a worthwhile effort, it can only be a first step toward more effective, fair, and just informant use. Until these policies are enforceable, compliance with them is transparent, and their violation results in real punishment, little genuine change in police handling of informants can be expected.

On July 25, the New York Times reported on the release by Wikileaks.org of more than 92,000 U.S. military documents relating to the war in Afghanistan. While interesting from a number of angles, for our purposes the story is a tale of two informants that highlights complicated questions of loyalty and society’s treatment of informants. The first informant in the story was Pfc. Bradley Manning, an Army soldier who allegedly transmitted the leaked reports to Wikileaks. While not an “informant” in the traditional sense, as he did not help the government apprehend criminals, Manning played the informant’s role by revealing miscalculations and fatal mistakes, if not crimes, committed by the U.S. military in Afghanistan. The second informant was Adrian Lamo, who reported Manning’s involvement in the leak to federal authorities.

What no one seems able to agree on, however, is whether Manning and Lamo are heroes, villains, or something in between.

Seen in the best possible light, Manning is a classic whistle-blower. Disillusioned with his employer’s actions, he revealed them publicly in the hopes of forcing change. What some see as treason, then, could also be viewed as the highest form of loyalty to America’s ideals of openness and public debate. But even if he did not betray his country, Manning certainly betrayed his fellow soldiers and those Afghans who have assisted the United States by placing them in mortal danger. And, at least according to Lamo, Manning’s motives were not altruistic: he leaked the documents because enjoyed the attention that his contact at Wikileaks lavished on him, not because it was the right thing to do.

Lamo, on the other hand, is an informant in the more typical mold. He is a hacker with a previous conviction for breaching computer networks. He lied to Manning in order to gain the soldier’s confidence, claiming to be an ordained minister so that Manning would feel comfortable giving his “confession.” And he has at least arguably milked the situation for attention. Yet Lamo says that he came forward out of a sense of moral obligation: he believed that Manning had endangered human lives and felt that it would be cowardly to do nothing.

Neither Manning nor Lamo would seem to be a clear-cut hero or villain, then, and each has been both celebrated and condemned. Some call Manning a hero (the website for the Bradley Manning support network is here), while others have called for his execution. For his part, Lamo has received death threats and has been shunned by the hacker community, but he also has been hailed as a patriot for doing the right thing in a tough spot.

Moreover, the situation is even more of a moral and ethical morass than the typical criminal informant case, because there at least the underlying criminal conduct is considered unquestionably wrong. Here, though, one’s perspective on Manning and Lamo may depend on one’s view of the war in Afghanistan. If you believe it is a just war, then you may feel that Lamo did the right thing, but if you think that the war has been mishandled, then you may see Manning as a hero. Alternatively, some will fall back on equating legality with morality. In that case, Manning is a villain for breaking the law, while Lamo, though maybe not a hero, at least committed no crime.

But what should the government do? It does not prosecute every crime, and whether Manning is charged is a decision within the government’s broad prosecutorial discretion. Without knowing all of the facts, I don’t know how that discretion should be exercised. What I do suggest, however, is that whoever makes the final decision must consider more than the letter of law and focus as well on the morality of Manning’s actions. It appears to me that he betrayed his compatriots, but it is less clear that he betrayed his country. The crime charged must fit his moral desert. Treason may be going too far, but something less than treason may be appropriate.

Meanwhile, what do we do about Lamo? He lied to and betrayed Manning, and he did so at the instigation of the government, with whom he was actively cooperating during his discussions with Manning. This raises a larger question that applies to the government’s handling of many criminal informants: should the state encourage informants, as private citizens, to commit immoral, if non-criminal, acts? As I see it, there is something unsavory and disquieting about the government, in the name of enforcing criminal laws that are themselves based on society’s moral code, pushing civilians to act immorally. And certainly law enforcement’s involvement in private immorality weaken the communicative force of the criminal justice system. But is that a price we are willing to pay for the information that informants like Lamo provide?

Before I get started, I’d like to thank Alexandra Natapoff for the opportunity to contribute to this blog. I look forward to providing a different and (hopefully) interesting take on the problems and contradictions that arise from law enforcement’s dependence on, and society’s complicated relationship with, criminal informants.

So, let’s start with one of the contradictions:

When newspaper reporters and columnists write about informants outside the context of wrongful convictions, the tone tends to be one-note, excoriating “stop snitching” culture. A recent editorial by Bill Maxwell, a columnist for the St. Petersburg Times, is typical. (A couple of similar recent articles or columns are here and here.) Criticizing the black community in Tampa Bay for ostracizing three women who helped two police officers after they had been shot, he also takes on the “snitching ethos”:

If we do not call the police, we deserve the mayhem and dysfunction we suffer. When we conceal the identity of a murderer, we endanger everyone. When we turn our backs on drug deals near our homes, we cheapen the rule of law and destroy social values. In addition to its self-destructiveness, the snitching ethos alienates us from others, putting us at odds with normal behavior.

Maxwell’s points generally are well-taken, if not particularly novel.

But another recent column also caught my eye. This one, by Marc Hansen of the Des Moines Register, bears the headline, “Iowan mails Lefty’s arm back to bar, won’t snitch on thief.” Far less gruesome than it sounds, the story involves the theft of a mannequin’s left arm from a bar in San Francisco and its subsequent return by Doug Kintzle, a Des Moines resident who had it in his basement. Hansen explains that though Kintzle knows who stole the arm, the culprit is part of his cycling group, and Kintzle refuses to “snitch.” As Hansen says, “you have to respect that.” And I think he’s right: most people would have no problem with Kintzle staying mum and protecting his friend.

But why is the Maxwell’s “snitching ethos” bad, and Kintzle’s refusal to “snitch” good? Despite the presence of a stolen plastic arm, I ask the question non-facetiously: in both cases we’re talking about crimes that the police can’t solve without an informant’s help, yet in one case refusing to snitch is reprehensible and in the other it’s respectable.

(posted by Michael Rich)

Of course, there are numerous differences that may help explain the discrepancy, and prime among them is the relative severity of the crimes: murder in one case, and the theft of a piece of a plastic mannequin in the other. But Maxwell also argues that the failure to report drug dealing “cheapen[s] the rule of law and destroy[s] social values.” Isn’t drug dealing, arguably a malum prohibitum crime, less morally culpable than stealing? Doesn’t Kintzle also cheapen the rule of law by refusing to inform on the thief? Isn’t “do not steal” an important social value?

Or is the critical difference that Kintzle is refusing to snitch on a member of his cycling group and we respect the loyalty of those who bicycle together more than we do loyalties among neighborhood members? Or is it that petty theft within cycling groups is unlikely to foment more crime, while drug dealing will? Or that drug dealers tend to be poorer than cyclists? Or that Maxwell is talking about black communities and cycling is largely a sport enjoyed by whites?

Most likely, it’s a combination of some or all of these considerations that makes us comfortable with Kintzle’s silence and generally agree with Maxwell. But the question of where the line is drawn between bad snitching and good informing is infrequently considered and one that policymakers need to keep in mind when they tailor policies to encourage cooperation with the police.

I am very pleased to introduce Snitching Blog’s first guest blogger: Professor Michael Rich formerly at Capital University Law School and recently moved to Elon University School of Law. Professor Rich has written about the use of informants as a potential violation of the Thirteenth Amendment, which prohibits involuntary servitude. From the abstract:

Though active informants cooperate for many reasons, most assist the police out of fear that if they refuse, they will be subject to criminal prosecution or more severe punishment. This Article argues that by compelling these “coerced informants” to work under such a threat, the government violates the Thirteenth Amendment’s prohibition on involuntary servitude. As a doctrinal matter, compelling coerced informants to serve under threat of criminal sanction fits the Thirteenth Amendment’s definition of involuntary servitude. Moreover, the use of coerced informants offends the free labor principles that animated the passage and ratification of the Thirteenth Amendment and underlie the Supreme Court’s Thirteenth Amendment jurisprudence.

Link to article here: Coerced Informants and Thirteenth Amendment Limitations on the Police-Informant Relationship, 50 Santa Clara L. Rev. 681 (2010). Professor Rich will be here throughout August.