Guest blogger

There is no shortage of slang terms for informants: “weasels,” “rats,” “stool pigeons,” and, of course, “snitches.” And none imply positive things about those who assist the police. According to the Oxford English Dictionary, to “weasel” means “to escape from or extricate oneself out (of a situation, obligation, etc.), esp. dishonourably.” A “rat” is “a man who is deceitful or disloyal in a romantic relationship,” “a person who deserts his or her party, side, or cause,” “a person who gives information, esp. of an incriminating nature, on another person to the police or other authority, an informer.” And to “snitch” is “to inform upon or on a person” or “to take surreptitiously, purloin.” Yet, despite the negative connotations of these slang terms, they (and particularly “snitch”) are used synonymously with “informant” in journalism and academic debate, where at least the appearance of neutrality is valued. For instance, a search of news articles over the past year finds thousands of uses of the word “snitch.” Many of course are found in direct quotations or a similar context, but some simply refer to informants as snitches, and thus import the negative connotation into a presumably neutral forum. A fair number of law review articles incorporate the word “snitch” in the title. And this blog is called, “Snitching Blog.”

To some extent, of course, the use of slang synonyms is unavoidable as authors and reporters seek to avoid repetition. But I raise the issue because I wonder to what extent the use of a term like “snitch” improperly colors the debate over the proper role and treatment of confidential informants. Some, like Paul Butler, have argued that the term “snitch” refers only to a subset of confidential informants and do not include those civilians who assist the police out of a sense of civic duty. I don’t disagree that were this distinction adhered to in practice, it would be valuable, but the use of the word “snitch” is sufficiently indiscriminate to raise concerns that in academic and journalistic discussion those good citizens are being painted with the same brush as criminals who turn in their accomplices.

The city of Atlanta has agreed to pay $4.9 million to the family of Kathryn Johnston, a 92-year-old woman who was killed by police acting on a false tip from an unregistered informant. The police then planted drugs in Johnston’s home to cover up their failure to follow the law and Atlanta Police Department policy on informant use. (A fuller account of the Johnston case can be found here.) The settlement properly reflects the egregious nature of the misconduct in the case, but the more important question is whether the settlement can properly be said to bring “[o]ne of the most divisive chapters in the history of the Atlanta Police Department . . . to a close.” While it certainly marks the end of what the court system can do to assuage the pain caused by Johnston’s death, the settlement marks the end of the chapter only if the steps that the APD and the City of Atlanta have taken to make sure that a similar incident does not happen again are likely to be effective.

The APD has attempted to fix the problems that led to the Johnston tragedy by reorganizing its Narcotics Unit and strengthening its Office of Professional Standards (which houses the department’s Internal Affairs and Corruption Units). While these steps are positive, they continue to rely on the police to self-regulate, a task that the APD and police departments generally often do poorly. (In Atlanta’s case, a report written in response to the Johnston incident found repeated breaches of APD policies and a police culture that ignored these breaches.) Indeed, if Johnston’s death was the result of “rogue officers,” strengthened policies are unlikely to prevent future tragedies.

Atlanta City Council, apparently skeptical of the APD’s ability to self-police, reacted to the Johnston tragedy by creating a Citizen Review Board and empowering it to investigate citizen complaints against the APD. The creation of the CRB is a positive step away from unfettered police discretion and toward civilian oversight.

But informant use presents a unique problem that this CRB (and others like it) is ill-suited to address. In particular, Atlanta’s CRB has the authority only to respond to citizen complaints. Such complaints provide an effective oversight mechanism only for misconduct that is likely to be reported. For example, civilians who are subject to excessive use of force or who suffer false arrest or imprisonment are likely to bring complaints to the CRB. But police use (and misuse) of informants takes place almost entirely in secret, and those civilians who might have knowledge of police misconduct — the informants themselves — are unlikely to report it. After all, informants frequently assist the police under threat of criminal prosecution for a prior offense. And any complaint to a CRB by such an informant will likely result in the informant’s incarceration, thus creating a strong disincentive to report misconduct.

For instance, prior to raiding Johnston’s home, APD officers stopped a suspected drug dealer, planted drugs on him, and threatened to arrest him if he didn’t provide information to incriminate someone else. That dealer falsely told police that a dealer with a significant amount of cocaine was at Johnston’s home. The police then lied on an affidavit to secure a warrant, thus leading to the fatal raid. As this recounting shows, a CRB would not have prevented the Johnston incident, both because there was no time for a citizen complaint to be filed and because the informant was unlikely to complain for fear that the police would follow through on their threat of prosecuting him for the planted drugs. Instead, police misuse of informants will likely come to light only in situations like the Johnston tragedy, where an innocent civilian is injured, killed, or falsely imprisoned as the result of police misconduct. Meanwhile, the more run-of-the-mill misconduct involving false or fabricated informant testimony (used to incriminate the actually guilty), informants permitted to continue to engage in low-level criminal conduct, and informants coerced into engaging in dangerous activities with little to no training will continue unchecked.

Of course, bad actors intent on misconduct are difficult to deter completely, but two approaches would work better than those taken in Atlanta. First, affirmatively obligating the police to report on informant use would allow for insight into systemic problems before they lead to incidents like the Johnston tragedy. For instance, it is likely that the events leading to Johnston’s death were not the first time that the officers involved had fabricated informant testimony. Informant use data might have identified them as wrongdoers due to informant use at a rate or in a manner inconsistent with their fellow officers.

Second, forbidding the police and prosecutors from trading pre-conviction leniency for informant assistance would make tragedies like the Johnston incident less likely. I’ve argued that many such bargains violate the Thirteenth Amendment, but regardless of the basis for the prohibition, such a ban would have two positive effects. The first is that it would place the informant-state relationship under the supervision of the courts, which could guarantee that informants are used appropriately. The second benefit is that a ban would make police hesitant to offer such deals and civilians would be less likely to accept them, knowing that they are prohibited and thus unlikely to be honored. In the Johnston case, such a ban may have prevented the police from receiving the false information tying Johnston’s home to drug dealing and thus prevented her death.

The problem of informant misuse is a difficult one, but tragedies like Johnston’s death deserve solutions that are tailored to the problems that cause them.

Yesterday, Hal Turner, a shock jock and blogger popular with the Ku Klux Klan, Aryan Nations, and American Nazi movements, testified in his own defense at his criminal trial. Turner is charged with making threatening blog posts about Judges Posner, Bauer, and Easterbrook of the Seventh Circuit Court of Appeals, in which he suggested that the three judges deserved the same fate as District Court Judge Joan Lefkow for a decision upholding handgun bans in Chicago and a suburb. Judge Lefkow’s husband and mother were murdered in 2005. Turner’s defense is that the posts were not actual threats, and his testimony outlined his four-year stint as an FBI informant.

Between 2003 and 2007, Turner was paid by the FBI to attend gatherings of white extremists and gather evidence about their activities. He testified that his FBI handlers also encouraged him to use inflammatory rhetoric in order to flush out those responsible for the murders of Judge Lefkow’s husband and mother. This rhetoric, he claimed, was no more inflammatory than that which led to the criminal charges, and he testified that his FBI handler praised him for his rhetoric and assured him that it was not illegal.

This case raises two issues: first, it’s an excellent example of a conundrum facing law enforcement. On one hand, it is difficult to infiltrate and prosecute organized crime, like white power groups, without people on the inside. On the other, the people on the inside willing to cooperate with the government are, in some sense, doubly odious, as they are both criminals and willing to be disloyal to their peers. Thus, to the extent that the state cooperate with them and encourages their activities, the state is painted with the same brush. Here, the FBI’s reputation is necessarily tarred by its relationship with Turner, who made money both for egging on and celebrating white supremacists and for turning them in to the police.

This problem is multiplied when the government then prosecutes the informant for activities similar to those for which the government previously paid the informant. Then, as here, the state risks appearing hypocritical on top of being moral suspect for its affiliation with criminals. This further weakens law enforcement credibility with civilian populations that already have a tendency not to trust the police.

The second issue is that by previously encouraging activities similar to those that form the basis of the current criminal charge, the FBI has made it exceedingly difficult to obtain a conviction against Turner. According to Turner, his FBI handler assured him that his earlier statements about Judge Lefkow were not criminal. Now he faces charges for similar statements. Though there may be legally important distinctions between the two sets of statements, those distinctions are fine, and the state is in a very difficult position trying to argue them to a lay jury. Thus, it is not surprising that the case against Turner already has ended in mistrials twice.

The police department in Jacksonville, North Carolina is facing criticism for using a fugitive as an informant in a drug sting. The sting resulted in 394 felony counts charged against 45 suspects, though these numbers paint a misleading picture of the sting’s success. First, the charges have resulted mainly in sentences of probation and in little jail time. Moreover, at least two of those targeted in the sting have claimed that the informant fabricated drug buys. The trial of one ended in a hung jury, and police are concerned about the credibility of the informant in light of his fugitive status. Finally, the informant, who is accused of shaking a five-month-old child so hard that she suffered a broken arm, cracked ribcage, and retinal bleeding, has yet to face any possible punishment for an offense allegedly committed almost two years ago.

These problems are neither surprising nor rare. Others (including Professor Natapoff and myself) have explored the issues: that drug informants often do little to get criminals off the street, instead churning cases targeting minor offenders; that they fabricate evidence leading to false convictions; and that the alliance between police and criminals like the informant in this case cast the police in a negative light and call into question their standing to enforce the criminal laws.

But what is interesting about this case is that the use of this informant was in flagrant violation of Jacksonville Police Department policy, which says that no individuals wanted on a warrant can be used as a confidential informant. The policy no doubt is meant to prevent the problems here, as fugitives are less credible as witnesses, have a significant incentive to fabricate evidence, and diminish police credibility. And the need for such a policy is real: an individual with an outstanding warrant is a prime target of an officer seeking an informant because the potential sentence hanging over the individual’s head is excellent leverage to recruit her.

But, as this case shows, the existence of a policy is at best only a laudable first step toward responsible informant use, and one that inevitably fails unless the policy is enforceable, compliance with it is transparent, and police are held accountable for violations.

On the enforceability front, courts have repeatedly declined to allow injured civilians (including informants) to enforce violations of police procedures. This means that police, like wolves guarding the chicken coop, enforce their own rules. In most cases, then, breaches of policy are enforced only when public outcry requires it, as in the Rachel Hoffman case in Tallahassee. And in this case the JPD administration provides little hope that its policies will be enforced, as the JPD’s deputy chief has said that an investigation will occur only “if a violation of policy is brought to [the JPD’s] attention.”

This raises the issue of transparency. Typically neither internal police guidelines nor the specifics of any informant case are made public. (In Tulsa, Oklahoma, for instance, the police department grudgingly released its policy on informant use while making clear that the policy did not fall within Oklahoma sunshine law. Moreover, though Tulsa’s policies are reportedly “grounded in national standards,” the former police chief acknowledged that policies are worthless if they’re not enforced.) Here, the JPD refuses to release the name of the informant. And when the informant finally was arraigned, he received an unsecured bond before the detective investigating the outstanding charges even had an opportunity to speak to him. With proceedings cloaked in secrecy, it is nearly impossible for there to be independent investigation of potential past wrongdoing or for current violations to be uncovered.

Finally, most police procedures lack accountability. The procedures themselves generally do not include any punishment for violators, and courts are loathe to undermine a criminal case based solely on violations of police procedures. As a result, police have very little incentive to abide by their own procedures when, as they inevitably do, police perceive the policies as making their jobs more difficult. And the incentives to violate procedures are significant: police often are assessed and rewarded based on how many arrests they make, regardless of how those arrests are made. (In this case, one of the officers involved in the sting was promoted, though it is unclear if there is any causal connection between the sting and the promotion.)

These problems are not unique to informants, of course. The vast expanse of police and prosecutorial discretion is a frequently-explored phenomenon, and this is just one of the many areas where that discretion, which depends entirely on the assurance of state agents that they can be trusted to govern themselves, is problematic.

Nevertheless, the case in Jacksonville goes to show that while pushing for policy changes is a worthwhile effort, it can only be a first step toward more effective, fair, and just informant use. Until these policies are enforceable, compliance with them is transparent, and their violation results in real punishment, little genuine change in police handling of informants can be expected.

On July 25, the New York Times reported on the release by Wikileaks.org of more than 92,000 U.S. military documents relating to the war in Afghanistan. While interesting from a number of angles, for our purposes the story is a tale of two informants that highlights complicated questions of loyalty and society’s treatment of informants. The first informant in the story was Pfc. Bradley Manning, an Army soldier who allegedly transmitted the leaked reports to Wikileaks. While not an “informant” in the traditional sense, as he did not help the government apprehend criminals, Manning played the informant’s role by revealing miscalculations and fatal mistakes, if not crimes, committed by the U.S. military in Afghanistan. The second informant was Adrian Lamo, who reported Manning’s involvement in the leak to federal authorities.

What no one seems able to agree on, however, is whether Manning and Lamo are heroes, villains, or something in between.

Seen in the best possible light, Manning is a classic whistle-blower. Disillusioned with his employer’s actions, he revealed them publicly in the hopes of forcing change. What some see as treason, then, could also be viewed as the highest form of loyalty to America’s ideals of openness and public debate. But even if he did not betray his country, Manning certainly betrayed his fellow soldiers and those Afghans who have assisted the United States by placing them in mortal danger. And, at least according to Lamo, Manning’s motives were not altruistic: he leaked the documents because enjoyed the attention that his contact at Wikileaks lavished on him, not because it was the right thing to do.

Lamo, on the other hand, is an informant in the more typical mold. He is a hacker with a previous conviction for breaching computer networks. He lied to Manning in order to gain the soldier’s confidence, claiming to be an ordained minister so that Manning would feel comfortable giving his “confession.” And he has at least arguably milked the situation for attention. Yet Lamo says that he came forward out of a sense of moral obligation: he believed that Manning had endangered human lives and felt that it would be cowardly to do nothing.

Neither Manning nor Lamo would seem to be a clear-cut hero or villain, then, and each has been both celebrated and condemned. Some call Manning a hero (the website for the Bradley Manning support network is here), while others have called for his execution. For his part, Lamo has received death threats and has been shunned by the hacker community, but he also has been hailed as a patriot for doing the right thing in a tough spot.

Moreover, the situation is even more of a moral and ethical morass than the typical criminal informant case, because there at least the underlying criminal conduct is considered unquestionably wrong. Here, though, one’s perspective on Manning and Lamo may depend on one’s view of the war in Afghanistan. If you believe it is a just war, then you may feel that Lamo did the right thing, but if you think that the war has been mishandled, then you may see Manning as a hero. Alternatively, some will fall back on equating legality with morality. In that case, Manning is a villain for breaking the law, while Lamo, though maybe not a hero, at least committed no crime.

But what should the government do? It does not prosecute every crime, and whether Manning is charged is a decision within the government’s broad prosecutorial discretion. Without knowing all of the facts, I don’t know how that discretion should be exercised. What I do suggest, however, is that whoever makes the final decision must consider more than the letter of law and focus as well on the morality of Manning’s actions. It appears to me that he betrayed his compatriots, but it is less clear that he betrayed his country. The crime charged must fit his moral desert. Treason may be going too far, but something less than treason may be appropriate.

Meanwhile, what do we do about Lamo? He lied to and betrayed Manning, and he did so at the instigation of the government, with whom he was actively cooperating during his discussions with Manning. This raises a larger question that applies to the government’s handling of many criminal informants: should the state encourage informants, as private citizens, to commit immoral, if non-criminal, acts? As I see it, there is something unsavory and disquieting about the government, in the name of enforcing criminal laws that are themselves based on society’s moral code, pushing civilians to act immorally. And certainly law enforcement’s involvement in private immorality weaken the communicative force of the criminal justice system. But is that a price we are willing to pay for the information that informants like Lamo provide?