Snitching

Criminal Informant Law, Policy, and Research

Drug-related

U.S. seeks to deport gang informant back to El Salvador

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Brought to the U.S. by the FBI as a material witness in 2023, an informant against the MS-13 gang is now facing deportation back to El Salvador. Federal officials revealed his identity during the case in which he was supposed to testify, which means that he will be identified as a snitch if he is forced to return. He is currently seeking asylum, arguing that deportation would amount to a death sentence. WBUR, an NPR public radio station, reported on the story here: U.S. wants to deport FBI informant who was set to testify in gang case in Mass.

Informants are especially vulnerable in the immigration space. For another example of an El Salvadoran informant, this one a mere teenager, who was deported notwithstanding his cooperation, see this previous post: ICE marks 17-year-old informant for deportation and death.

10th Circuit case could shake the foundations of snitching

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In Mendenhall v. Denver, the plaintiff is making an argument about search warrants that could completely change the informant landscape. Police got a warrant to search Michael Mendenhall’s house based on hearsay, which is to say, by repeating something that somebody else said. Mendenhall is represented by the Institute for Justice, and his attorneys are arguing that the warrant violated the plain text of the Fourth Amendment which requires that all warrants be “supported by oath or affirmation.” Since the officer swearing out the warrant had no firsthand knowledge, the argument goes, he could not properly swear to the facts in his affidavit. For this argument to prevail, the Supreme Court would have to overturn Jones v. United States, 362 U.S. 257 (1960), which permitted the issuance of a warrant based on hearsay allegations from an informant. If Mendenhall prevails, police could no longer rely on assertions from confidential informants in order to get warrants. Since the majority of warrants, and the vast majority of drug warrants, rely on informants, this would be a massive change in the law.

Here is a Reason Magazine piece on the case; amicus briefs from law professors and civil rights attorneys can be found on the IFJ page. And here is a law review article by Professor Laurent Sacharoff that explains the historical argument: “The Broken Fourth Amendment Oath,” 74 Stanford Law Review 603 (2022).

Police found liable for young informant’s death

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In a relatively uncommon 2014 decision, the Supreme Court of Kentucky found Kentucky State police liable for the death of LeBron Gaither, an 18-year old informant, when police compromised his identity and then immediately used him again in a drug bust. Gaither v. Justice & Public Safety Cabinet, 447 S.W.3d 628 (Ky. 2014). The Court held that the law enforcement decision whether to use a “burned” informant is not discretionary but “ministerial,” writing that “the known rule . . . that forbade the re-use of a confidential informant after his cover was blown was absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Or as the Board of Claims originally put it, “There is no discretion whether to use a burned informant again. It is simply not done….”

The case is notable for the ways it designates certain police decisions as non-discretionary when it comes to using informants, since under U.S. law so much of informant use and reward lies within the discretion of police and prosecutors.

The case was brought by Gaither’s grandmother, Virginia Gaither. For press coverage in the Kentucky Courier Journal, see “‘You can’t do this stuff’: Police finally pay up in blown-cover murder,” and “Court: Ky. police liable for informant’s murder.“

Uncertainty and risk in the informant market

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This article from the New Yorker captures the desperation and broken promises that so often go with being an informant, and how informants are so heavily dependent on their handlers for protection and reward. The article is entitled “What do we owe a prison informant?” It chronicles the dangerous work performed by an informant referred to as “Cyrus” trying to work off part of his prison sentence, and how, notwithstanding the high value of his cooperation, he was never rewarded as promised. From the article:

Although [DEA Agent] J.J. didn’t make any specific offers of a shorter sentence, his relationship with Cyrus was predicated on assurances that Cyrus would benefit from helping the D.E.A. But J.J. had little control over what happened to him—Cyrus’s fate was in the hands of Georgia’s State Board of Pardons and Paroles, which is not beholden to anyone, and certainly not to the D.E.A. The way Cyrus and his family see it, Cyrus risked his life for years with an understanding that he would get leniency in return. And then, he says, he was abandoned.

Troy Howlett’s mother sues Virginia police for wrongful death

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In 2018, police in Hopewell, Virginia, pressured Troy Howlett into becoming a drug informant, sitting by his hospital bed as he recovered from an overdose. Months later he died from a fentanyl overdose. His mother, Donna Watson, filed a wrongful death claim against the police, arguing that with full knowledge of Troy’s addiction they coerced him into buying drugs that exposed him to continued drug use and a high risk of overdose. Her case was initially dismissed by the court; it is currently on appeal. For indepth coverage see this story from WTVR, “Her son was a police informant. She blames them for his death,” and this piece from The New Republic: “Her Son Needed Help. First, He Had to Help the Police.”

The New Republic also interviewed another former Hopewell informant. The father of her child was facing criminal charges and police came to her with a deal: if she worked for them, it could help reduce his sentence. Pregnant and with a history of substance abuse of her own, she worked for police for a month and relapsed.

For more stories about the widespread harms to vulnerable informants, see post about Matthew Klaus who died of an overdose while working for police, and also How police turn teens into informants.