Informant Crime

Jailhouse informants used threats to get confessions

June 14, 2018 by Alexandra Natapoff

This piece from Ted Rohrlich, who is now writing for Injustice Watch, chronicles the use of two Mexican Mafia informants in Southern California who sometimes threatened their cellmates to get them to confess. The informants, whose work came to light as part of the Orange County snitch scandal, were paid over $300,000 over six years by law enforcement in multiple counties. They also received numerous breaks and perks. From the story “Miranda ‘loophole’: CA police use gang enforcers to win cellmate confessions”:

“[C]onfessions did not always flow, and in several cases, court records show, the enforcers-turned-informants—like other Southern California jailhouse informants before them—resorted to death threats to provoke suspects to talk. They claimed suspects were on “green light” lists of inmates that Mexican Mafia leaders had ordered killed because they were believed to have broken a Mexican Mafia rule. But if they confessed—admitting the killing of which they were suspected but denying that they had broken the rule—the enforcers-turned informants could go to bat for them and have them removed from the lists.”

The constitutional law here is interesting. In Illinois v Perkins, the Supreme Court held that the government can deploy jailhouse informants against incarcerated inmates to get confessions without Miranda warnings, as long as those inmates have not yet been charged with a crime. But the Court also held in Arizona v. Fulminante that the use of threats to extort confessions can render those confessions involuntary in violation of due process.

This story also deserves attention because of who wrote it–no one knows jailhouse snitches like Ted Rohrlich does. He was the Los Angeles Times reporter who broke a series of stories in the late 1980s about the rampant use of informants in the LA County jail. That series helped trigger a ground breaking 1990 grand jury investigation which remains one of the most important sources for insights about jailhouse informant use.

Insight into FBI informant criminal activity

September 23, 2017 by Alexandra Natapoff

The FBI reports to the Department of Justice the total “Otherwise Illegal Activity” (OIA) that it authorizes its informants to engage in. In its most recent report due to an error, some of that data was missing–the total was down from 5,261 crimes to 381. The FBI explains that “When the FBI submitted 2016 data to the Justice Department regarding the Confidential Human Source Program one tier of data accidentally was not submitted.” Presumably the FBI omitted Tier 2 crimes–the less serious tier. Here’s the story which was featured on the Marshall Project’s Opening Statement: FBI Severely Underreported How Many Times It Authorized Informants to Break the Law [Updated]

The 2017 Confidential Informant Accountability Act would expand the FBI’s reporting requirement. The FBI (and all other federal investigative agencies) would have to report to Congress, not just DOJ. And it would have to report not only the crimes it authorized its informants to commit, but all the serious crimes that it has reason to believe that its informants committed while working for the agency.

U.S. DOJ criticizes DEA informant program

July 21, 2015 by Alexandra Natapoff

The Office of the Inspector General (OIG) of the U.S. Department of Justice has just released this report, Audit of the Drug Enforcement Administration’s Confidential Source Policies and Oversight of Higher-Risk Confidential Sources.

This is an important report for a number of reasons. The press and the public have had trouble getting basic information from the DEA about its informant policies and usage: this audit fills in some of those informational gaps. The audit identifies numerous troubling practices within the DEA and offers new insights into the kinds of risks that are routinely run by federal officials who rely on criminal informants. The audit also strengthens the case for a pending bill in Congress entitled “The Confidential Informant Accountability Act,” H.R. 2985, introduced by Rep. Stephen Lynch (D-MA). That bill would require the DEA, along with the FBI and other federal investigative agencies, to report to Congress the serious crimes committed by their informants, as well as their payments and rewards. As described in greater detail below, the OIG found that the DEA was seriously deficient in documenting and controlling the crimes committed by its informants.

Highlights of the Report:

1. The DEA resisted the audit. As the report put it, “the DEA has seriously impeded the OIG’s audit process, which has affected our ability to conduct a timely, full, and effective review of the DEA’s Confidential Source Program. The DEA made attempts to prohibit the OIG’s observation of confidential source file reviews and delayed, for months at a time, the provision of confidential source information and documentation.” The audit is therefore ongoing. This resistance to oversight is consistent with the general culture of secrecy surrounding informant use, in which law enforcement is often resistant to disclosing its practices, even to its own direct supervisors. See, for example, this post.

2. The DEA permits its informants to deal drugs and commit other crimes without adequate supervision or oversight. The U.S. DOJ has guidelines for its investigative agencies that require certain procedures before an informant can be authorized to commit a crime. The DOJ Guidelines, which are here, distinguish between Tier One and Tier Two Otherwise Illegal Activity (OIA). Tier One OIA includes very serious offenses and requires authorization from agency supervisors and a prosecutor.

The DEA does not follow these guidelines. For example, the DEA explicitly excludes “the purchase of drugs or other undercover activities that are routinely performed by DEA Agents and CSs [confidential sources] during the normal course of their duties” from the kinds of “sensitive activities” that require supervisory approval within the DEA. The only drug transactions for which the DEA rules require a prosecutor’s approval are those involving amounts under U.S. Sentencing Guidelines 2D1.1(c)(1), which are the highest amounts documented in the guidelines, and include 90 KG or more of heroin, 450 KG or more of cocaine; 25.2 KG or more of cocaine base (crack); 90 KG or more of PCP; and 45 KG or more of Methamphetamine. Amounts less than this do not require prosecutorial approval. The report concludes:

“We believe the DEA’s policies do not adequately address the concerns and risks involved in authorizing confidential sources to conduct and participate in OIA and do not correspond to the AG Guidelines’ requirements in place to mitigate these risks….DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA. Further, an ill-considered or unclear decision to authorize a confidential source to engage in OIA may create significant difficulties in prosecuting the source or co-conspirators on charges related to the source’s activities.”

3. The DEA rarely reviews the relationships between its agents and their long-term informants (over six years), and when they do, the review is cursory. This is historically and famously problematic: the DOJ Guidelines were themselves a direct response to the FBI’s disastrous long-term relationships with its mafia informants.

4. The DEA pays some of its informants death and disability benefits when they are injured or killed in connection with their informant activities.