A Texas legislator has just introduced a new bill, H.B. 189, that would bar the use of compensated criminal informants in capital cases. H.B. 189 would make informant and accomplice testimony inadmissible if “the testimony is given in exchange for a grant or promise by the attorney representing the state or by another of immunity from prosecution, reduction of sentence, or any other form of leniency or special treatment.” In effect, the bill embodies the sensible idea that paying criminals for their testimony is simply too unreliable to be used in death penalty cases. The Texas Tribune ran this story: Bill Would Restrict Informant Testimony in Death Cases. The bill would also bar the use of alleged confessions made to jailhouse snitches unless the confessions are corroborated by electronic recordings. In many ways Texas has been on the forefront of this issue–the state already has drug and jailhouse snitch corroboration requirements. See this post: Texas requires corroboration for informant witnesses.
Incentives & Payments
Snitch team in Florida generates millions in forfeitures and DOJ investigation
The Bal Habour police department is under federal investigation for its use of a team of informants to collect millions of dollars in forfeitures, often without making any arrests. The Miami Herald ran this story, Feds probe Bal Harbour Police Department over seized millions, describing how this small police department uses “a team of snitches and undercover cops” to “seize a fortune in cash every year” from all over the country. “Now, the special unit is under federal investigation for its handling of millions in seized dollars, including hundreds of thousands paid to snitches, questionable expenses and missing financial records.” Over four years, Bal Harbour police spent thousands of forfeiture dollars on equipment, cars, boats, first class plane tickets, and a banquet. The department paid its informants $624,558.
Such programs are made possible by federal forfeiture law, under which police departments can keep a percentage of seized assets. Because the legal standards for forfeiture are lower than for a criminal case, police can seize money and assets without having to prove anyone guilty. For a great overview of forfeiture law and its reliance on informants, see Radley Balko’s article in Reason Magazine, The Forfeiture Racket. See also this report from the Institute for Justice: Policing for Profit.
Texas police pressure traffic violator into drug work
ABC News ran this story about a mother who was pulled over for traffic violations and then pressured into becoming a drug informant to avoid arrest. Story here: Cops Use Traffic Tix to Force Woman into Drug Buys, Lawyer Claims. This is the same scenario reported in Attica, New York, where another young woman was pressured into becoming a drug informant when she was stopped for failing to pay traffic tickets. See this post: Recruiting new informants. Such stories remind us that police have discretion to use any opportunity–even a speeding ticket–to recruit new informants, even when the offense is minor or has nothing to do with the crimes the police want to investigate.
FOX News story on informants in Boston
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.
Reuters criticizes leniency for insider trading informant
David Slaine, a participant in the Galleon hedge fund insider trading scandal, was sentenced to probation and community service on Friday in exchange for his cooperation with prosecutors. He was facing up to 25 years in prison. This column from Thomson Reuters argues that Slaine got too good of a deal:
NEW YORK, Jan 23 (Reuters Breakingviews) – A financial snitch has gotten off too lightly. David Slaine, a former Galleon Group employee, pleaded guilty to insider trading and conspiracy but became an informant to help nab others, including the hedge fund and trading scandal kingpin, Raj Rajaratnam. At the urging of prosecutors, a federal judge has rewarded Slaine with probation and community service instead of up to 25 years in prison. Such leniency risks overreliance on criminals. . . .The justice system probably can’t crack big cases without the cooperation of unsavory characters, and giving Slaine favorable treatment is justified up to a point. But even for the best information, letting confessed felons like him essentially off the hook is too high a price to pay.
In a similar vein, this New York Times piece points out that, under recently proposed amendments to the U.S. Sentencing Guidelines, heavier sentences for insider trading will make cooperation–and the vastly lower sentences that accompany it–an increasingly prominent feature of white collar prosecutions.
The potential for higher sentences means the incentive to cooperate with the government in an investigation will be that much greater. There is already a significant disparity between the sentences of a cooperating defendant and one who goes to trial, and the best way to avoid the recommended sentence under the guidelines is to help prosecutors convict others….
The benefits of cooperation are likely to be on display in the near future when crucial cooperating witnesses in the prosecution of Mr. Rajaratnam are sentenced. Anil Kumar and Rajiv Goel testified at his trial, and prosecutors are likely to recommend substantially lower sentences than those received by other defendants who pleaded guilty but did not cooperate, like the 30-month sentence given to Danielle Chiesi.