The new law, signed in April, requires stronger disclosures, tracking of jailhouse informants, and notifications to victims if an informant who harmed them receives leniency. The law is here, and the Innocence Project wrote about the problem here. Prior post here.
Informant Law
Prisoners have a First Amendment right not to snitch
The Second Circuit has decided an extraordinarily important case, Burns v. Martuscello, in which the court held that prison officials violated an inmate’s First Amendment rights when they tried to coerce him into being an informant. Writing that “compelled speech presents a unique affront to personal dignity,” the court decided that prison officials acted unconstitutionally when they placed Burns in solitary confinement in retaliation for his refusal to snitch.
The court noted that snitching in prison can be especially dangerous, thus heightening prisoners’ First Amendment interest in refraining from speech. The court also reasoned that forcing prisoners to snitch is analogous to forcing a person on the street to talk to the police–something the Fourth Amendment prohibits. Finally, and importantly, the court rejected the government’s claim that forcing inmates to snitch is necessary to maintain safe prison conditions. “Coercing inmates to serve as informants,” wrote the court, “is, at best, an exaggerated response to prison concerns.”
This case has broad potential implications. Prisoners are often required to debrief or inform in order to avoid discipline or harsher conditions of confinement. Prisoners, moreover, typically have reduced constitutional rights as compared to non-prisoners. If inmates cannot be pressured to snitch, many other people including suspects, arrestees, criminal defendants, and immigrants, all of whom are often pressured to inform, may have new constitutional protections.
The Marshall Project covers the case here: Is There a Right Not to Snitch?
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.”
Jailhouse informants used threats to get confessions
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.
States take a fresh look at snitching
Here’s an op-ed I wrote for The Crime Report chronicling the latest wave of state legislative reform. Some highlights: