Snitching

Criminal Informant Law, Policy, and Research

Dynamics of Snitching

The way it’s supposed to work: organizational informants

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The strongest arguments for informant use are connected to the nature of criminal organizations: informants permit the government to get information about, infiltrate, and destabilize group criminal activity. The most famously effective such deployment was the FBI’s use of informants to go after the mafia, a success story that is often invoked in support of informant use more generally. Of course even that success story had its costs: see this post on the dangers of mafia informants.

These tactics are now on display in several recent cases regarding insider trading and computer hacking, in which the use of informants has not only permitted prosecution of individual wrongdoers but may be weakening the culture of collective wrongdoing itself. According to this Reuters report, “[t]he FBI says it has enough informants lined up to keep its investigations of suspected illegal insider trading at hedge funds going for at least five more years.” The New York Times opines that the conversion of a leading hacker into an informant “will sow even more distrust and dissension in the ranks of [the international hacker movement].” In both communities, the knowledge that colleagues and peers may be informants could well chill criminal activity. At the same time, the government should be careful not to send the message that becoming an informant is a get-out-of-jail-free card, a double-message that could undermine deterrence. See this post.

FOX News story on informants in Boston

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FOX Undercover in Boston ran this story on the dangers of informant use: Informants cutting deals to continue lives of crime. Congressman Stephen Lynch was interviewed for the story. Lynch is the author of the Confidential Informant Accountability Act, see this post. When asked whether he was worried that informants get a “free pass,” here is what he said:

It’s worse than that. They get a free pass to continue their criminal enterprise. They get protection, basically amnesty. I just think there’s a corrosive element to this confidential informant program.

By contrast, former U.S. Attorney Michael Sullivan focused on the benefits that informants can provide when investigating corrupt organizations:

Particularly as you’re looking at things like organized crime, they played a critical role with regard to putting matters together in order to infiltrate the organization. It took a long time for the government to penetrate these organizations, and they did it initially by using informants, finding people who had some vulnerabilities and then exploiting those vulnerabilities and getting them to become government cooperators.

New York officers sued for failing to protect informant

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The mother of a 20-year-old informant is suing two NYPD officers for failing to protect her son who was killed an hour and a half after he tipped off his handler to the location of some guns and drugs. Story here: Mom of slain informant Anthony Velez sues cops for failing to protect him. Such suits are rarely successful–courts have been reluctant to hold police accountable for the fate of their informants, even when the government contributes to the risk. See this post discussing the government’s responsibility for the safety of its informants.

Court considers orthodox jewish rule against informing

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The Talmudic laws of mesira prohibited Jews from informing against other Jews to non-Jewish authorities. This ancient “no snitching” rule is getting modern attention in the Los Angeles case of Rabbi Moshe Zigelman, an Orthodox jew who is refusing to testify against other Jewish suspects before a grand jury regarding alleged acts of tax fraud and money laudering. Story here: Jewish law goes to court: Mesira meets American justice. The story describes the Talmudic issue this way:

The concept of mesira, which literally means “delivery,” dates back to periods when governments often were hostile to Jews and delivering a Jew to the authorities could lead to an injustice and even death. The rules of mesira still carry force within the Orthodox world, owing both to the inviolability of the concept’s talmudic origins and the insular nature of many Orthodox communities. But they are also the subject of debate over whether the prohibition applies in a modern democracy that prides itself on due process and civil rights.

This dispute dovetails with a large issue in criminal justice: what happens to the force of criminal law when people believe it is unfair or leads to injustice? Professor Tom Tyler has written extensively about the fact that people are more likely to obey the law if they perceive it to be be fair and carried out through evenhanded and respectful procedures. See, e.g., Tom Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. of Criminal Law 231 (2008).

Report: Confidential Informants in New Jersey

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It’s rare to get this much data about informant practices. The New Jersey ACLU has released this important study of confidential informant practices across the state, based on scores of documents, cases, interviews, and government policies. According to the study,

The use of informants in drug law enforcement in New Jersey was found to be largely informal, undocumented, and unsupervised, and therefore vulnerable to error and corruption.

Among many findings, the study determined that informant use led to the following problems: manufactured criminal conduct, financial abuse, police coersion, harm to the informants, unreliability, misuse of juveniles, using “big fish” to catch “little fish,” and the widespread violation of laws and guidelines. The study proposes reforms, and apparently a number of New Jersey counties have already responded with improved policies.