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.
Incentives & Payments
Coercion of Intelligence Informants
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.”
Experiments on the impact of inducements
Scholars at the University of Arizona Law School have published a paper entitled “Incentives, Lies and Disclosure,” 20 U. Pa. J. Con L. 33 (2018). They conduct a number of behavioral experiments and conclude that incentivized witnesses like jailhouse informants are more likely to lie, and that even when potential jurors are told about the incentives, they still believe the witness. Here is the abstract:
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.
Congressional hearing on informant use at ATF and DEA
Last week, the House Committee on Oversight and Government Reform held a hearing on April 4, 2017, in response to U.S. Department of Justice reports that ATF and DEA were mishandling their informants. Testimony was heard from DOJ Inspector General Michael Horowitz, DEA Acting Principal Deputy Administrator Robert Patterson, and ATF Associate Deputy Director Ronald Turk.
From the Committee’s website:
TAKEAWAYS:
- The Drug Enforcement Administration (DEA) continually refused to provide the Committee its new policy regarding the proper use of confidential informants (CIs). During the hearing, Chairman Chaffetz issued a subpoena to DEA for the documents.
- The Bureau of Alcohol, Tobacco, Firearms and Explosives’s (ATF) and DEA’s inadequate oversight over the CI program prevents the agencies from properly tracking and monitoring CIs.
- Since 2012, ATF and DEA paid CIs almost $260 million, with payments largely determined by field agents who did not seek approval or review from headquarters.
- The Department of Justice Office of Inspector General (DOJ OIG) found incomplete and inaccurate tracking of money or amounts paid to CIs at both agencies.
- DOJ advised ATF Associate Deputy Director Turk not to appear and testify before the Committee’s hearing last month on the death of ICE Agent Jaime Zapata.
California informant bill passes out of committee
A bill that would improve recordkeeping and disclosure regarding jailhouse informants just passed out of the California Legislature’s Public Safety Committee. The bill would also cap certain informants benefits. Bill here and ACLU press release here.
I testified in support of the bill along with Bruce Lisker, who was wrongfully convicted of murder at age 17 based on jailhouse informant testimony, and spent 26 years in prison before he was exonerated. Here is Mr. Lisker’s testimony from today’s hearing:
“Honorable Assembly Persons, my name is Bruce Lisker. I am here to urge a YES vote on AB359. On March 10, 1983 my teenage world became a nightmare. I discovered my mother beaten, stabbed and left for dead on the floor of our Sherman Oaks home. It wasn’t long before a corrupt LAPD detective was, unbelievably, arresting ME for the attack. I was cast into the notorious “Snitch Tank” at L.A. County Jail, where I met a vile creature known as Robert Hughes, a morally bankrupt jailhouse informant with an extensive rap sheet and one overriding mission – to get out of jail.
After conning me into innocent conversation, Hughes told police I’d confessed to him. I was the fourth target of his lies inside of 18 months. Police fed him cigarettes and food, flew him in private LAPD aircraft – and my prosecutor got him sprung from prison months early.
Hughes’ lies, and the criminal justice system that encourages them, cost me more than twenty-six years of freedom and youth I can never get back. Had AB359 been the law of the land, my lawyer would have known that Hughes had a lengthy history of severe mental health issues, including documented psychotic breaks.
He was given inducements to investigate and testify against me, had unrecorded interviews with police about the case, and undue influence rewarded his lies with the thing he coveted most, his freedom. All this was hidden or misrepresented by police and prosecutors.
Evidence is clear – jailhouse informant testimony is a leading causes of wrongful conviction in America. As demonstrated by the recent outrage in Orange County, and investigations in at least five other California counties, this problem persists. Please vote YES on AB359. Society deserves no less.”