Guest blogger

In previous blogs I have highlighted some of the perceptions that exist around law enforcement officers and their involvement in managing informants and I have made suggestions that the underlying system that has evolved contributes to many of the problems that arise. Law enforcement officers will always be in the frontline of protecting society. It is therefore incumbent upon society to set out the standards of behaviour that are expected and to provide law enforcement with the tools to do the job correctly. There seems little point in criticising a law enforcement officer for making errors with regard to behaviour when the legislators and politicians have failed to provide clarity. It is futile to criticise prosecutors for using legislation that has been put in place because citizens have asked politicians to put such legislation in place. It is somewhat hypocritical of the public to demand greater accountability of law enforcement and then not provide funding to purchase software that would help ensure greater accountability. And, if there is to be any resolution of such matters there needs to be open, frank and objective discussion about what is going wrong, why it is going wrong and what can be done to change it. My first suggestion and a subject which I have mentioned in previous blogs is that of clarity around terminology and it is to that which I return now. This is about getting the basics correct.

I have previously highlighted those individuals who are recruited and managed by law enforcement with the intention of providing evidence in legal proceedings. These should not be referred to as informants but as witnesses. I would suggest that the individuals to which the term informant could be applied fall into one of two categories. The first category is that of registered informant. (NYPD have a effective and comprehensive definition) This person will most often be someone involved in crime or from a high crime area who gives law enforcement information about ongoing criminality on a regular basis over an identified period of time. They may, or may not, take part in criminal acts on behalf of the law enforcement agency. The key point about these individuals is that they are registered with the law enforcement agency and there is a record to evidential standards of every action they do on behalf of the agency, every intelligence report they produce, every cent they have been paid and that their behaviour is authorised by a supervisor within the agency following comprehensive risk assessment. Such a process protects the informant, the law enforcement officer and the general public.

The second category of those to be considered as informants are those citizens who give information to law enforcement in the expectation that no one will know they have given such information. This information is likely to be given on a one off or ad-hoc basis. Information coming from such people is likely to include reports of suspicious activity and crime-stoppers type tips. The agency needs to keep a record of who supplies what information. Again such a record protects the person giving the information, the officer receiving the information and the general public. Such a system addresses many of the concerns raised in the stop snitching debate and is particularly well suited to community orientated policing. If the person is not a registered informant or a witness then by default they fall into this category.

While my suggestions here may appear somewhat simplistic they work. Obviously there needs to be significant guidance put in place for each category and a number of subcategories are likely to be required. However, building systems around such basic tenets ensures that appropriate resources can be directed to manage the relevant risks that surround this type of work. Obviously, there is likely to be less risk when a pastor is giving information about drug dealing in her community as opposed to someone who is involved in an organised crime group giving similar information. Hence, different risk control measures should be applied. Furthermore, if a witness is receiving significant benefit for their testimony as opposed to an ordinary witness, then it is in the interests of justice that the jury are aware of those benefits. This not does not mean the witness should be stigmatised with the label of informant, as such an action is prejudicial to the prosecution and does not serve justice.

A significant failing in any process is the corruption or misunderstanding of language. As Senator S I Hayakawa said: If we allow certain key words in our vocabulary to remain undefined, we tend to project an illusion of meaning that ultimately hinders and misdirects our thinking.

As I have stated before I welcome any comments or criticisms. I realise it is a blog but would suggest that you read all the blogs I have written to contextualise my comments. My comments are based on a significant amount of research an my function here is to add to the debate and try to suggest some solutions. In my next and final blog I will provide some other suggestions that may help address the concerns of the many different parties involved in this debate. But for now I will finish with another comment from Senator Hayakawa which I feel applies to all those law abiding individuals who have a right to a viewpoint in this debate be you a law enforcement officer, academic, politician, lawyer or civil rights activist (a role incidentally, that I firmly believe every law enforcement officer fulfils), and it is this:
You guys are saying the same thing. The only reason you are arguing is because you are using different words.

In my previous blog I opened an argument that the main problem with the management of informants is ‘the system’ that has evolved around their management. I use the term ‘system’ loosely as there is not one US system for managing informants. Different agencies use different languages have and have different processes despite attempts by both the Department of Justice and International Chiefs of Police Association, among others, to try and standardise terminology and methodology.

While inconsistency in methods and terminology mean that systems are different it doesn’t actually mean they are wrong. True …but there are too many cases that give rise for concern that it is only by burying ones head in the sand that anyone can try and defend the status quo. Citizens have died, the innocent have gone to jail and the guilty have walked free and good cops have gone bad all because of poor informant management practices.

Let’s get to the basics. Firstly the terms ‘snitch’ ‘confidential informant’ ‘human source’ (FBI), ‘cooperating witness’ and many other derivatives are all used interchangeably. They are not the same. Just as a farmer keeps a horse, a sheep, and a cow for agricultural purposes, the way he manages these animals and what he uses them for is different. It is exactly the same with citizens who are providing law enforcement with information. Categories need to be clearly identified and then the individuals managed accordingly. If we try and milk a horse or sheer a cow, things are going to get messy and the products won’t be what we were hoping for!

How we identify what category a person falls into is most easily worked by answering the simple question: In what way are the law enforcement agency’s intending this person to act? Everything else then follows from that. The first category to look at is the person who is intended to provide evidence.

A significant amount of the concerns that are articulated about ‘snitching’ revolve around persons who give evidence to obtain a lessening of their own sentence (for example 5K motions). These individuals are not informants they are witnesses. The two roles are different using the terms interchangeably or the terms snitch and/or confidential informant for both roles confuses all involved (arguably most damagingly, the jury). If it is the intention of the law enforcement agency is to use a person to give evidence against another that person is a witness. The reason the terms ‘snitch or informant’ are used relates to the individuals motive and/or perceived circumstances not the act that they are doing. Using such terms is based in human prejudice. Law enforcement wants this person to provide evidence to a court. Once such a decision is made everything that the law enforcement agency does needs to be done to ensure that the evidence is presented to the court in a manner that the jury can make an objective decision as to whether or not that person’s evidence is credible or not. This means rigorous documentation of each and every contact with that witness from the time they are first spoken to up to the time they give evidence and including details of any subsequent benefit they may receive post trial. All documentation must be of evidential standard. US law enforcement needs to devise a term for this type of person be it cooperating witness, convicted witness, prison witness or whatever but it should include the word witness for that is what they are. National legislation and policy should be drawn up to direct the evidentiary and management criteria surrounding such individuals. Whether or not the evidence of such a person requires corroboration is not for me to dictate but for the US legislature to decide. However, given the huge incentive for such a person to lie, such corroboration may be prudent.

While the US criminal justice system continues to allow confusion around terminology and role, particularly with regard to the evidentiary process, erosion of that system and loss of public confidence is inevitable. Furthermore, while such a situation continues, it helps criminals subvert communities by discouraging law abiding citizens from giving information to the police through such campaigns as that of “Stop Snitching”.

In subsequent blogs we will look at the two other categories of informant and then in more general terms at what can be readily achieved to improve the overall management of informants. I welcome any comments, concerns or criticisms.

This is true. You can’t trust anyone. Totally! All the time! Now try and live your life trusting no one. The simple truth is we make judgements on a daily basis on who we should trust and to what extent. And when it comes to the police, we do trust them – to keep us safe – but that trust is conditional and trust must be continually earned. In this piece we will take an in-depth look at some of the issues affecting the credibility of law enforcement including that which songwriter the late Harry Chapin referred to as “…a sociological phenomena that afflicts the men in blue in America…”

People do not trust the police for many reasons. Policing is, for want of a better term, ‘a sexy business’ and by this I mean that the majority of people are attracted to it. It is interesting, exciting; it involves people at their best and worst. It makes for great stories and people love stories. Policing makes for great television and great movies and so people are heavily exposed to all its facets. And at the end of the day cops are just people with all the strengths and weaknesses of the rest of us. The main difference between the police and others being is that as a group police officers are under continuous scrutiny. Their faults and failings are continually the subject of media reporting. What happens in law enforcement is we take ordinary men and woman and ask them to do an extremely difficult job and then criticise them when they do it wrong. So before the legislatures, lawyers and academics get too excited about what I will say about law enforcement officers be aware you are complicit in what goes wrong and your time in the spotlight approaches.

We will look at how police behaviour in relation to informants erodes the trust of the public and try and identify the underlying causes. In his song ‘Copper’ Chapin alludes to police officers being bribed by citizens. The matter of bribery and corruption in law enforcement is a long one that rarely makes for pleasant reading. In informant management police officers deal with criminals who have access to amounts of money and lifestyles that many a law enforcement officer would envy. Policing is often not a well paid job and the temptations are there. When police officers start mixing with criminals in the grey area that is informant management the risks of corruption increase many-fold. Statistics bandied about in UK law enforcement alluded to the fact that as much as 90% of police corruption related to informant management. Remaining on a financial theme officers are often required to pay informants significant amounts of money in return for the information provided. This money is often paid with limited supervision. The temptation for officers is great. Ten for you; ten for me! It happens.

Society wants to be safe and more importantly to feel safe. No more prevalent is this than within American culture. More so than most other Western societies, the US public is subjected to an inordinate amount of fear messages. Citizens want to know that the bad guys are being caught. This puts pressure on elected representatives, who put pressure on police chiefs, who put pressure on police commanders who put pressure on police officers — get results. (The bad stuff always moves downward!) Whether anyone involved or not including the police officers themselves they are under huge pressure to get results. If they don’t get results they will be criticised. Their promotion prospects will be curtailed, they may get moved to a less desirable posting or the pay may be reduced. The pressure comes on to get results – at any cost.

Furthermore, police officers get tired of “the bad guys” getting away with murder, robberies and destroying lives through the sale of drugs. They get fed up with the inability of the judicial system to deal with these individuals and get annoyed when highly paid lawyers get acquittals based on what they perceive as ‘technicalities’. Is there a temptation to bend the rules? You bet there is.

And if you want another hundred reasons why law enforcement officers make a mess of managing informants I can give you them but maybe the question that needs greater consideration is “Why does the system allow cops to behave in inappropriate ways?” Stephen Covey, author of The Seven Habits of Highly Effective People, writes: “If you put good people in bad systems you get bad results.”
So while it may be easy to blame the cops, and in certain circumstances some cops may well merit blame, the major problem facing US society in relation to managing informants is not those directly involved it is the system that has evolved and it is that system that needs fundamental change.

If we are to start to understand what is wrong with the way in which informants are managed we have to first start to examine the whole concept of using informants and how we, as people, are likely to perceive their use. Being an informant is intrinsically linked to the act of betraying the group (tribe) to which the informant belongs: de facto the individual causes harm to their group for the benefit of another group. From a human ‘survival’ perspective this act is destructive though to fully comprehend this statement we must return to the days when we lived in tribal groupings. Despite the fact that this maybe many years ago we are still to a greater extent conditioned by the way in which people lived then. If one of our tribe did not fully contribute to the group or worse ‘betrayed’ the tribe, then the tribe and all in it were less likely to survive; hence, the need for loyalty in the tribe and the ostracising of those who were disloyal. This perception that betrayal of any sort is wrong has been reinforced by the fact that majority of people in modern western democracies are familiar with the story of the betrayal of Jesus to the Romans by Judas. Given the significant number of people that look to the Bible for moral guidance, it can hardly be thought strange that society finds betrayal abhorrent. [As an aside, an alternative perspective on this story with real relevance to this whole debate Judas was merely a law abiding citizen who gave information on a dangerous subversive who was trying to undermine the legitimate Roman government. Truth is out there somewhere but perception is everything.] Furthermore, we are all taught well by our peers in kindergarten: “You don’t snitch to the teacher.”

Society in general is based on shared values and trust; snitching undermines this and leads to the perception that it is damaging to the fabric of our society. Finally, add to that the fact that the very nature of informing requires deceit at so many levels and we start to understand why snitching starts out with a “bad rap.” All that said, regardless of how prevalent these beliefs may be they are all up for debate!

So if we start that as a baseline many consider using informants wrong, then we must ask what do law enforcement do to alter this perception? Law enforcement agencies in the US undoubtedly are more proactive than many of their counterparts in other jurisdictions about highlighting the use of informants in solving crimes. There is not a day goes past that there are not numerous press reports of confidential informants helping to bring perpetrators to justice. So why do the public concerns remain? Perhaps many take a somewhat simplistic view – you can’t trust the police! Policing of a community is done through consent. The police are an arm of government and have a right to take away our liberty and our lives. We worry about the powers they have. We fear for what they will do and for our safety. We worry when they are secretive. Combine this with inherent senses of right and wrong and of justice and there remains a distinctly uncomfortable feeling about the use of informants.

And then law enforcement really puts the fox in the chicken house with prominent cases like the tragic deaths of Kathryn Johnston in Atlanta and Rachel Hoffman in Tallahassee and the average citizen starts to become really concerned. It is perhaps worth of note here that if we were to stick rigidly to the definition of snitching on this blog namely “Snitching” when police or prosecutors offer lenience to criminal suspects in exchange for information or cooperation” then, arguably the Kathryn Johnson case would fall outside the remit of the definition because the main problem was not directly related to the informant!

So why do law enforcement seem to hell-bent on doing things wrong? The answer is they are not. The vast majority of law enforcement officers are good people doing an extremely difficult job. They are prepared to put their life on the line so you and I can sleep safely in our beds, get up and go safely to our work and come home and enjoy time with our families. The rub here is that they are ‘people’ with all the attributes that you and I have. When you criticise a law enforcement officer over some informant case regardless of how tragic a case it is they will in all likelihood perceive it as an attack on law enforcement in general and they will adopt a defensive position. They will rationalise what has happened, become dismissive of many of the concerns and antagonistic to those raising the issues. In discussions with many law enforcement officers these and many other cases, there are a raft of different interpretations of the events with some being deeply critical of the officers or agencies involved to those defending those involved. All the points raised have validity. These law enforcement officers, from patrol officers to Chiefs have all expressed the desire to manage informants in a professional manner. So where is it going wrong?

While there are many possible explanations the first thing to acknowledge is that many law enforcement agencies try to manage confidential informants in a professional way. However, it is a high risk area of policing and a many of those directly involved people including legislatures, lawyers, chiefs of police, detectives and patrol officers fail to understand how difficult an aspect of policing this is. For too long it has been seen as part and parcel of the policing role and one that needs no training and little supervision, no legislation and little policy, minimal record keeping and little accountability. When things go wrong there is always an individual officer or individual agency to blame. There is a failure to recognise the extent of the problem and to analyse it and to identify the causes. The reality is that while many other aspects of US policing have significantly improved, the way in which informants are managed has seen little change over the years. And in a society where public expectations of behaviour and accountability have changed the situation becomes less and less acceptable as time progresses.

US law enforcement is not alone in having to deal with such concerns. Many other countries have already had to evaluate the way in which informants are managed and make significant changes. There have been public enquiries in Australia, Canada and Ireland all of which have identified serious shortcomings. In the United Kingdom, over the past twenty years, law enforcement has been subjected to a number of high profile enquiries and court cases where methods used for informant management have led to significant changes including the publication of national policy for all police forces, mandatory training and structures for all officers involved in managing informants, rights based legislation in the form of the Regulation of Investigatory Powers Act (introduced in 2000) and further legislation to deal with witness testimony coming from convicted persons in 2005. While these changes caused difficulties for law enforcement in their implementation their legacy has been a significant rise police standards and of accountability. These changes have worked in tandem with other well accepted policing concepts including Community Orientated Policing and Intelligence Led Policing.

At this juncture it is perhaps worth it for all to pause and consider where we may be. Just as post 9/11 the way in which intelligence was collected and managed was subjected to a huge amount of scrutiny, and the subsequent changes that were required, then now is perhaps an appropriate time for all with a genuine interest in this debate on informant management to take an objective look at how informants are managed within US law enforcement and how that process could be improved. The first step is recognising there is a problem. Kathryn Johnston, Rachel Hoffman, allegations of corruption in places like Philadelphia and Tulsa and the concerns over the use of confidential informants in Mosques in California are not isolated cases. They are symptoms off a much wider national malaise. US law enforcement needs to use informants but there needs to be changes in how they do it. This is not problem that can be resolved by single law enforcement agencies. It is a national problem that needs addressed at a national level and not just by law enforcement.

In upcoming blogs we will examine specific causes of some of the issues, we will look at what has been done and what is being done and most importantly the realistic and easily achievable steps that can be taken to improve the situation.

Coming from ‘across the pond’ I feel it a great honour to be able to share my thoughts with you with regard to what has become commonly referred to as ‘snitching’ and thank Alexandra for the opportunity. In some respects, it may seem strange that a person who has spent a considerable part of their life involved in promoting the use of informants ends up writing on a blog that has, in the past been, and probably will be again, highly critical of such tactics being used by law enforcement. So let me explain how it came about. Having been lucky enough to spend a considerable part of my law enforcement career involved in all aspects of managing informants I gravitated, initially, to training others in that role and then to researching how law enforcement could manage informants in a more effective manner. In carrying out any research in regard to the management of informants, what becomes readily apparent is that whilst there exists significant differences in the various criminal justice systems found across the western world, the problems encountered in the management of informants rarely differ. So it is hardly surprising that someone got around to writing a book about it… which led me to Alexandra and her blog.

For many people there is significant ambiguity about the definition of ‘snitching’. In the opening gambit of this snitching blog the following is used:
“Snitching” when police or prosecutors offer lenience to criminal suspects in exchange for information or cooperation”

While such a definition addresses many concerns that arise from the use of confidential informants, inherent in the definition are a number of problems. Firstly, ‘snitching’ is a slang term and while it certainly captures many of the emotions associated with the practice it does not bring with it the objectivity that is required to address the issues it raises. It is a term that offends many people directly involved in the associated acts including both citizens and law enforcement officers. Secondly, I would argue that in using slang we professionals, who should strive to improve the criminal justice system, stoop to the language and level of those in the criminal fraternity who would seek to undermine our society. Thirdly, the definition is not broad enough, if all we seek to address is the issue of leniency being offered to criminal suspects then we are not addressing many of the other issues associated with the management of confidential informants. Having said all that, the blog title certainly gets people interested and hopefully thinking which is probably exactly what intended to do and as such is certainly a step along the correct path.

So, let me set out where my intentions are to go over the next month I will spend with you.

I will start with where I perceive US law enforcement and indeed US intelligence agencies are with regard to managing what are referred to here as ‘snitches’ and in other circles as ‘confidential informants’, ‘human sources, ‘rats’, ‘phinks’ or in military and intelligence circles as ‘humint’. I will highlight some of the problems I see and make suggestions as to where I believe law enforcement agencies need to go in order to address many of the concerns raised by the citizens that law enforcement seeks to serve.

I will begin with a couple of baseline statements. Firstly, the terminology I will use throughout is that of ‘confidential informant’. It is one that is widely used and accepted within law enforcement and within the criminal justice system. That said, there are problems with the breadth of situations that people are in, that the term is expected to embrace. Those problems I will address shortly. The second statement I will make is that law enforcement cannot succeed in the prevention and investigation of crime, particularly with regard to organised crime and terrorism, without the use of confidential informants. No matter how distasteful some people may find that statement (and I am willing to debate it whenever and with whomever) that is a cost to protect the society in which we live.

The comments that I offer here stem from the hard won experience gained by many of the law enforcement agencies I have had the privilege to work with over the years. The mistakes that are being made now within the criminal justice system are rarely new. Unfortunately, they have been made before and often many times before. Later, we will explore reasons why such mistakes continue to me made.

Returning to definitions the first problem surrounds that of the meaning of the term ‘confidential informant’. One of the fundamental problems is the lack of sufficient standardisation with regard to use of the term and what the term is intended to incorporate. The Federal Bureau of Investigation (FBI) has chosen, in its 2006 guidelines, to use the term ‘Confidential Human Source’, a term that is not used by the majority of other law enforcement agencies. While that term has many positive attributes, it is at variance with what is widely used by the majority of other practitioners within the criminal justice system. The very nature of modern law enforcement requires inter-agency cooperation but in this case the lead federal agency is at variance with its partners. Some may argue that this is a semantic debate, but if informants are to be managed properly it needs to begin with clarity of language. Following on from this, the breadth of individuals and circumstances to which the term is applied incorporates too many widely differing circumstances for there to be any real control or accountability. If informants are to be managed properly, in a way that addresses genuine public concerns then there needs to be some degree of categorisation within that term. Some law enforcement agencies have attempted to categorise different types of informant but this most often done on an ad hoc agency by agency basis.

The circumstances in which the law enforcement agency (LEA) obtains information from a citizen dictates the level of risk that is associated with that individual and the steps necessary to manage that risk in an effective and accountable manner. At present the term confidential informant is applied to circumstances as varied as a head teacher giving information on a pupil involved in drug dealing at a school, to a member of the Mafia reporting on organised crime, and to the situation where a convicted prisoner gives evidence against a cell-mate. Each of these circumstances raises issues that need to be managed in different ways. Neither justice, nor the effective deployment of limited law enforcement resources, are served by attempting to deal with such individuals in a similar way.

To begin law enforcement needs to identify broad categories into which they can place an individual and then manage that individual according to an agreed and document set of standards. There are three categories that command an adequate starting place all of which will fall within the broader understanding of the established term ‘confidential informant’. [The wording used here is only suggested to explain the concepts it is up to the relevant Federal or State authorities to agree and document the terms to be used.]

1. ‘Registered Human Source.’ This term refers to a person with whom the LEA enters into a relationship in order to obtain information over and identified period and under specified set of circumstances. This relationship is authorised by someone in a management position within the LEA and all aspects of that relationship are documented.

2. ‘Prison Witness.’ This term refers to a person serving a prison sentence with whom the agency enters into a relationship with the intention that the person will give evidence against another person. Such a person is often referred to at the minute as a ‘jailhouse snitch.’

3. ‘Member of the public.’ This term refers to all other persons who do not fall within either Category 1 or 2 and includes any person passing information to the LEA in the expectation that their identity remains confidential (i.e. the intention is they will not be used as a witness).

Each of these categories will be explored in more depth later when it will become apparent how many of the current problems faced in the USA with regard to informants might have been avoided. Of course categorising individuals is not the solution but it is a start. I welcome your comments of any nature.