Remember Jack Abramoff, the corrupt lobbyist who defrauded Indian tribes of millions and used the money to bribe members of Congress and White House officials? In 2008 he was sentenced to four years of incarceration for multiple offenses, decades less than he might have received, in exchange for his cooperation. Now Abramoff is headed back to prison for . . . corrupt lobbying. Abramoff joins a long line of repeat offender informants who commit serious crimes, cooperate in exchange for leniency, and then continue committing those very same offenses. It is one of the costs of running the criminal system as a marketplace in which guilt and information can be so easily and routinely traded: we send the message that informants can earn impunity, and that they can work off even the most serious crimes if they are useful enough to the government. I worried about the Abramoff case back in 2009 here. As I wrote back then, “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.”
Incentives & Payments
Japan is introducing American-style plea bargaining in which defendants can trade information about others in exchange for leniency. Some are concerned about the risks of snitching in general, and of wrongful convictions in particular. The law is more limited than the U.S. version, and only permits certain kinds of deals and only for certain kinds of crimes. From the Japan Times:
“Unlike the U.S. plea bargaining system, admitting to a crime does not warrant a deal with prosecutors in Japan. The new system, introduced in a revision to the criminal procedure law, allows suspects in such crimes as bribery, embezzlement, tax fraud and drug smuggling to negotiate with prosecutors. The bargaining only applies to crimes listed in the law, with murder and assault off-limits.”
Bloomberg recently explored the State Department’s Narcotics Reward Program which offers bounties for information on high-ranking drug traffickers: America’s Multimillion-Dollar Bounty Program Just for Drug Lords. As always, the program accepts the risk of rewarding and protecting serious, violent criminals in exchange for information about other potentially more serious, violent criminals. As the article notes, “[c]ritics of the government’s rewards programs warn that huge cash bounties increase cartel violence and encourage corruption among U.S. law enforcement personnel. But the program’s success is hard to dismiss, its proponents contend.” Other agencies, including the IRS and the SEC, offer large bounties to informants as well.
Diala Shamas, staff attorney at the Center for Constitutional Rights, has just published this informative article in the Brooklyn Law Review: A Nation of Informants: Reigning In Post-9/11 Coercion of Intelligence Informants. Here is the abstract:
“This article challenges the adequacy of the existing legal and regulatory framework governing informant recruitment and coercion practices to protect fundamental rights, informed by the Muslim-American experience. It looks at the growing law enforcement practice of recruiting informants among Muslim-American communities for intelligence gathering purposes. Although the coercion of law-abiding individuals to provide information to federal law enforcement agencies for intelligence gathering purposes implicates significant rights, it is left unregulated. Existing, albeit limited, restraints on the government agents’ ability to coerce individuals to provide information either assume a criminal context, or are driven by historical concerns over FBI corruption. As the U.S. government engages in widespread surveillance of Muslim-American communities, it relies heavily on recruiting members of those communities as informants. These individuals are targeted for their community ties, or their religious or linguistic knowledge—and not because of any nexus they might have to criminal activity. This has led FBI agents to search for coercive levers outside of the criminal process and that have far fewer procedural protections—namely, immigration and watch-listing authorities. Thus, existing protections that have evolved to prevent civil rights violations in the criminal informant context—limited as those protections may be—do not apply. In light of these expanding authorities and the significant rights at stake, this article makes several proposals that would regulate the recruitment of intelligence informants.”
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.