Snitching

Criminal Informant Law, Policy, and Research

Dynamics of Snitching

Snitch deals in Kilmar Abrego Garcia case

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Last week, a federal judge refused to detain Kilmar Abrego García, a Maryland resident who was wrongly deported to El Salvador and now faces criminal charges, based on what she deemed to be unreliable testimony from three different government informants. Judge Barbara Holmes described the lead cooperator as “a two-time, previously-deported felon, and acknowledged ringleader of a human smuggling operation, who has now obtained for himself an early release from federal prison and delay of a sixth deportation by providing information to the government.” Court order here. A Washington Post article — Star witness against Kilmar Abrego García was due to be deported. Now he’s being freed — describes the informant as having a long criminal history, including gun violence, in contrast with Abrego Garcia’s lack of any criminal record at all. The other two informants were family members of the main informant; in return for their testimony one is seeking release from custody (on unrelated federal criminal charges), and both are seeking deferred action on their pending deportations.

Many have commented on the counterintuitive fact that the government’s star witness has already been convicted of worse crimes than Abrego Garcia is accused of. But the informant market often flips the conventional rules of crime and punishment: letting the government use the proverbial “big fish” as an informant to catch smaller, less culpable fish. The practice is prevalent in, although not limited to, drug enforcement. This New York narcotics unit, for example, helped their informant drug dealers stay in business in exchange for turning in their low-level client drug users. An ACLU report described the same dynamic in New Jersey, under which “more culpable leaders of drug networks — the ‘kingpins’ — may get less severe punishment than underlings who play a lesser role in the drug trafficking operation.”

Perhaps the highest profile critique of this practice issued in 1966 from none other than U.S. Supreme Court Chief Justice Earl Warren, himself a former prosecutor. In its efforts to prosecute Teamsters Union President Jimmy Hoffa for a misdemeanor, the FBI dug up an incarcerated informant who was facing charges on manslaughter, kidnapping, embezzlement, assault and perjury. The informant was freed and all charges eventually dropped in exchange for his help prosecuting Hoffa. The Supreme Court validated the deal in the case Hoffa v. United States, but Chief Justice Warren dissented, complaining that “the Government reache[d] into the jailhouse to employ a man who was himself facing indictments far more serious … than the one confronting the man against whom he offered to inform.” He worried that “this type of informer … evidence[s] a serious potential for undermining the integrity of the truth-finding process in the federal courts.” Chief Justice Warren lost that argument, which is why the government is legally permitted to use, reward, and even forgive serious criminal offenders when they serve as informants against less blameworthy or dangerous people.

Bulk arrests and convictions based on unreliable informants

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This story from Tennessee reminded me of the high profile snitch debacle in Hearne, Texas in which a confidential informant working for the local drug task force set up dozens of innocent African Americans.  Similarly, in Tracy City, Tennessee, the city and the police department are being sued by an innocent couple who–along with 29 other people–were set up by an unsupervised drug informant.  Here is an excerpt from the story:

“Tina Prater walked into the police station with a reputation as a drug addict and a con artist. She walked out with a tape recorder, some cash and a mission: help the police chief arrest anyone whose name made it onto their list. Prater, 47, has admitted in a sworn affidavit that she framed people while working as a confidential informant for the Tracy City Police Department in 2017. She recruited imposters to act as other people, recorded audio of purported drug deals and turned the tapes over to Chief Charlie Wilder, who oversees just four officers in one of Tennessee’s poorest and most drug-addicted counties.”

And here is another story just like these two, in which a Florida drug informant admitted that she set up innocent people by fabricating drug deals: she did it in exchange for money, a home, and custody of her children.

President Trump gets snitching backwards

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President Trump has attacked “flipping” and cooperation, saying that “it should almost be illegal,” according to the New York Times.  Reacting to his lawyer Michael Cohen’s plea deal, Trump says “I know all about flipping. For 30, 40 years I have been watching flippers. . . . I have seen it many times. I have had many friends involved in this stuff.”

The irony is that Trump is attacking snitching for its greatest strength:  it enables law enforcement to investigate and prosecute the wealthy, the powerful, and the politically insulated.  Think of the Enron prosecution, or the dismantling of the mafia, neither of which could have happened without cooperation deals.  Also ironically, Trump is criticizing informant use in its least problematic incarnation. When Trump’s “many friends” become defendants and informants, they will be well represented and informed about their rights and options, while their cooperation deals will be recorded, vetted, and publicly scrutinized.  Most informants, and most defendants faced with snitch testimony, will get none of these protections.  It is precisely here in the white collar and high profile political context that cooperation is best regulated, most accountable and transparent, and thus least problematic.

To be sure, there are many reasons to agree that snitching “should almost be illegal.”  It leads to wrongful convictions; it tolerates the crimes committed by informants; it coerces the most vulnerable and rewards the most culpable.  It promotes government secrecy, rule breaking, and sometimes corruption.  But its potential to hold powerful people accountable is its best feature.

Experiments on the impact of inducements

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Scholars at the University of Arizona Law School have published a paper entitled “Incentives, Lies and Disclosure,” 20 U. Pa. J. Con L. 33 (2018).  They conduct a number of behavioral experiments and conclude that incentivized witnesses like jailhouse informants are more likely to lie, and that even when potential jurors are told about the incentives, they still believe the witness.  Here is the abstract:  

Prosecutors can force witnesses to testify and use perjury prosecutions to hold them to the provable truth. More controversially, prosecutors also offer witnesses inducements for favorable testimony, including leniency, immunity, and even cash. This ubiquitous behavior would be illegal as witness bribery, except for a longstanding tradition of sovereigns using this power, which legal doctrine now reflects. A causal analysis shows that even if prosecutors use this power only in good faith, these inducements undermine the epistemic value of witness testimony. 

Due process requires, and legal doctrine assumes, that when such inducements are disclosed to the jury, they will discount the witness testimony accordingly. However, juries’ success in doing so is an empirical question. We conducted three randomized experiments with 1,000 human subjects in roles of witnesses and jurors deciding vignettes based on real cases. We find that incentives have large effects on witnesses, allowing prosecutors to routinely procure favorable testimony regardless of its truth. Yet, disclosure has no detectable effects on either witnesses or jurors. 

We discuss two potential reforms. First, courts could borrow from the practice with expert witnesses and use the current rules of evidence to conduct Daubert-like pretrial screening of incentivized witnesses for reliability. We frame the appropriate counterfactual question about whether the incentives would cause a witness to give the same testimony even if it were false. Second, we present the novel suggestion that prosecutors could decide whether to offer benefits to a witness based on whether she will testify to material information, but without knowing whether the information is favorable to the Government. These mechanisms may preserve the value of incentives to produce information, while minimizing false testimony.

Following a terrorism informant in real time

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In this Sundance award-winning documentary, (T)error, filmmakers Lyric Cabral and David Felix Sutcliffe follow a local professional informant as he collects information about his target for his FBI handlers.  The New York Times Magazine, which published “The Informant and the Filmmakers” today, describes the film as follows:

   “By some counts, nearly half of the 500-plus terrorism-related convictions in federal court since the Sept. 11 attacks have involved informants. Before ‘‘(T)error,’’ most of what was known of their work came from indictments and snippets of wiretapped dialogue, served up by prosecutors and neatly presented for the courtroom. Filmed without the F.B.I.’s cooperation and apparently without its knowledge, ‘‘(T)error’’ shows how an informant puts a case together from its raw ingredients.”

The article relies on Trevor Aaronson’s book “The Terror Factory: Inside the FBI’s Manufactured War on Terrorism,” which criticizes the phenomenon of terrorism informants more broadly.   Interested readers should also take a look at Wadie Said’s recent book “Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions,” which argues that the federal legal system has become distorted in response to terrorism prosecutions in general, and the use of informants in particular.  Click here for links to both books.