Snitching

Criminal Informant Law, Policy, and Research

Dynamics of Snitching

Recruiting new informants

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Here’s a revealing article in the Buffalo News: Walking thin line in Village of Attica: Would-be informant says police coerced her into cooperation. It’s about Bianca Hervey, a 20-year-old college student who got pulled over by police for failing to pay her traffic tickets. The police threatened to put her in jail for the night, unless she agreed to become a drug informant. Although Hervey did not use drugs or have any connections to the drug world, police told her it didn’t matter–she could still work as a snitch and try to set people up. Frightened of going to jail, Hervey signed the informant agreement. When she told her father, attorney Richard Furlong, what had happened, however, he “went ballistic.” Furlong went to the police and to the City of Attica and complained about the recruitment of young people into the world of drugs, but the police and the Village Board refused to change the policy.

This story illustrates how snitching has quietly become such an immense part of the criminal justice system. Many cities have policies like Attica’s, in which police can recruit any potential offender as a drug informant–even a 20-year-old guilty of nothing more than a traffic violation. It was this same type of policy that led to the death of 23-year-old Rachel Hoffman in Tallahassee, Florida, and triggered Florida’s ground breaking legislation on the subject of informant-creation. See post: Florida’s “Rachel’s Law” offers some protections for informants.

“ICE agents mishandle informants”

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The Associated Press reports that the federal Immigration and Customs Enforcement (ICE) agency is having the same sorts of informant problems that its FBI and DEA counterparts have long struggled against. Here’s an excerpt from the story:

One immigration agent was accused of running an Internet pornography business and enjoying an improper relationship with an informant. Another let an informant smuggle in a group of illegal immigrants. And in a third case, an agent was investigated for soliciting sex from a witness in a marriage fraud case.

These troubling misdeeds are a sampling of misconduct by federal Immigration and Customs Enforcement personnel as the agency seeks to carve out a bigger role in the deadly border war against Mexican drug gangs.

According to documents obtained by The Associated Press under the Freedom of Information Act, ICE agents have blundered badly in their dealings with informants and other sources, covering up crimes and even interfering in a police investigation into whether one informant killed another.

I blogged about this last incident a couple of months ago–see Informants Killing Informants. Now it appears that ICE deliberately steered El Paso police in the wrong direction to protect their murderous source. This behavior is reminiscent of the FBI’s cover-ups of mafia informant murders and other crimes in the 1980s and 90s. Indeed, the official toleration and facilitation of crime is the core compromise at the heart of snitching, and suggests that insofar as ICE is making informants the centerpiece of its border strategy, its problems in this arena are only just beginning.

Of Insider-Trading, Informants,and Wiretaps

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“Wall Street Meets the ‘Wire,’” is a post from earlier this week on White Collar Crime Prof Blog, discussing the criminal case against billionaire hedge-fund manager Raj Rajaratnam for insider-trading. Here’s a link to the news story on Bloomberg. The post focuses on the unusually aggressive use of wiretaps in the investigation, and asks whether the government was authorized under the federal wiretap statute to do so given the availability of cooperating informants. As the post explains:

Title 18 U.S.C. § 2518(3)(c) provides that a court issuing a wiretap authorization order must determine whether normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. This “necessity requirement” obligates the government to set forth a full and complete statement of specific circumstances explaining why traditional investigative techniques were insufficient or the application must be denied. In determining the sufficiency of an affidavit, a reviewing court must ensure that the issuing court properly performed [its] function and did not ‘serve merely as a rubber stamp for the police’. The government is not under an obligation to exhaust all alternative means of investigation in satisfying the necessity requirement but, neither should it be able to ignore avenues of investigation that appear both fruitful and cost-effective.

Given that the government had three co-conspirators, including one as early as January 2006, acting as informants and cooperating witnesses, and that these individuals had unfettered access to Rajaratnam and others involved in the alleged conspiracies, the question arises whether the government deliberately stalled this investigation and actively resisted utilizing normal investigative techniques, hoping to induce the court into believing that only a wiretap could succeed.

The post doesn’t mention it, but the government need not even get court permission for electronic surveillance if it has so-called “third party consent,” i.e. if the informant agrees to record the conversation. 18 U.S.C. § 2511(2)(c).

This story illustrates the intimate legal relationship between informants and other forms of surveillance. The law privileges informant use, forcing the government to justify its use of wiretaps if informants are available–note that the post refers to snitching as a “normal investigative technique.” Moreover, the law permits the government to circumvent the courts entirely and avoid asking for permission to record conversations if it can find an informant who will agree to the surveillance. The usual explanation for this hierarchy is that electronic surveillance is one of the most intrusive forms of investigation and therefore should be a means of last resort. Wiretapping is of course supremely invasive, but this fact obscures the fact that informant use can be similarly intrusive, i.e. when the government threatens friends and colleagues with criminal charges to get them to report on and record people they know. For those who are interested, Chapter Two of the book discusses informant law in detail.

The insider-trading story also hints at important differences between white collar and street/drug crime investigative tactics involving snitching. The culture of informant use is very different in these two realms: white collar informants tend to be (although not always) well controlled, represented by counsel, and provide information about past crimes, whereas drug informants tend to be poorly controlled, unrepresented, and permitted to engage in new criminal activity in order to generate evidence. At the same time, the two arenas share important features. Here’s an excerpt from Chapter Seven:

White collar informing shares important characteristics with its street counterpart. Both confer a vast amount of discretionary, unreviewable authority on law enforcement. Both exacerbate power inequalities among potential offenders, as well as between vulnerable offenders and the government. In both arenas, the decision to permit cooperation means that the government is tolerating and forgiving crime, and sometimes even creating an atmosphere in which crime may flourish. And both deprive courts, and thus the public, of significant amounts of power over and information about the operations of the executive.

As informant use becomes increasingly prevalent in white collar investigations, we should expect to see more of the problems of unreliability and continued criminality that have become familiar in the street crime arena. See previous post: Committing Crime While Working for the Government.

More fallout from the Jack Abramoff investigation

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The Washington Post reports today on the sentencing of Bush White House official David Safavian, former chief of staff at the General Services Administration. Safavian was convicted of lying to federal investigators about thousands of dollars worth of perks and benefits he received from corrupt lobbyist Jack Abramoff. I think it is useful to follow the ripples left by the Abramoff affair because he is the paradigmatic example of what is both great and problematic about snitching. The great version: a bad guy cuts a deal with the government that exposes even worse guys, or “bigger fish,” and heightens public awareness of flaws in the system. This is the best argument for offering lenience to serious offenders–on balance it can create a greater public good, and indeed Abramoff’s conviction and cooperation has led to numerous other convictions and stronger ethics rules. The problematic version: Abramoff received a four-year sentence for his massive and ongoing corruption, not to mention a lesser sentence on a totally unrelated fraud charge in Florida. Had Abramoff sold a tablespoon of crack cocaine he would have gotten more prison time. Moreover, his cooperation has resulted in convictions of just a few “big fish”: Congressman Bob Ney, Deputy Interior Secretary Steven Griles, as well as today’s Safavian. While there have been other related convictions, they have mostly been of aides, other lobbyists, or players less powerful and culpable than Abramoff himself. Were these convictions worth letting the poster-child for corrupt lobbying off so lightly? This is the perennial dilemma with snitches: it is very hard to know whether we are actually getting more security and justice by letting them off the hook, or whether we too easily forgive serious wrongdoing in the name of cooperation.

Derrion Albert’s death, “Stop Snitching,” and people’s reluctance to talk to police

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Yesterday on CNN, Anderson Cooper reported on the terrible story of 16-year-old Derrion Albert who was beaten to death by four other teenagers in Chicago. The beating was captured on videotape–story here. Four people have been charged so far. Police Superintendant Jody Weis told Cooper that no one has come forward to identify three other potential perpetrators, even though numerous people witnessed the event. Weis stated, “We are literally getting killed by this code of silence, this no-snitching rule. We’ve worked hard to overcome it.” Cooper responded as follows:

This is something we focused on a lot on this program over the years. I did a piece on 60 Minutes about it as well. This whole stop snitching effort, rappers are telling people don’t be a snitch. And now the definition of a snitch is not just somebody who is involved in a crime and tries to rat out someone else they were involved with. Now there’s this horrible definition of being a snitch is anybody who comes forward and talks about a crime they’ve seen. That’s just the mentality that cannot be tolerated.

“Stop snitching” is an important phenomenon in urban criminal law enforcement; it is also deeper than comments like Cooper’s suggest, which is why I devote an entire chapter of the book to it. In a nutshell, “stop snitching” is the legacy of three related trends: drug enforcement’s heavy use of criminal snitches, increased gang violence against witnesses, and decades of mistrust between police and poor minority communities. While it is true that rappers often write songs that say “don’t snitch,” rap music should not be blamed for the fact that law-abiding residents of high-crime inner city neighborhoods are often too afraid of retaliation and/or too wary of police to report crimes. Here is an excerpt from the book:

The “stop snitching” phenomenon turns out to be complex, deep-seated, and long-standing. It did not begin with a DVD or a rap song, nor will it end when “stop snitching” t-shirts go out of style. It is simultaneously a criminal code of the street, a reflection of widespread communal distrust of police, as well as, more recently, a tool of intimidation against civilian witnesses. While the phenomenon was born in the penal system, it has spread beyond its criminal roots, a product of the multifaceted challenges of urban crime, gang violence, race, drugs, and policing through criminal informants.

To explain “stop snitching” is not to condone it–the world would be a better place if Chicago residents had the kind of relationship with police that would promote cooperation and information-sharing. But it is also important to give Chicagoans more credit–like so many people in cities such as Baltimore or Newark or Los Angeles, their reluctance to call police often stems from very real personal as well as historical experiences.