Snitching

Criminal Informant Law, Policy, and Research

Informant Law

Jailhouse informants used threats to get confessions

by

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

by

Here’s an op-ed I wrote for The Crime Report chronicling the latest wave of state legislative reform.  Some highlights:

–       Texaspassed comprehensive reform requiring prosecutors to track and disclose their informants’ criminal history, past testimony, and benefits.  The New York Times called it “the most comprehensive effort yet to rein in the dangers of transactional snitching.” 
–       Andrew’s Law in North Dakota prohibits campus police from using students as informants.  State police may only use informants with a written agreement.  Of particular note, Andrew’s Law bans the use of child informants under the age of 16, one of very few states to do so.
–       Illinois came very close to re-instituting reliability hearings.  The state previously required them in capital cases: now that Illinois no longer has the death penalty this bill will require pretrial hearings for all jailhouse informants.
–       Montana’s Senate Bill 249 introduced comprehensive legislation that would require, among other things, electronic recording of informant statements, greater prosecutorial disclosure, pretrial reliability hearings, and cautionary jury instructions.

–       Washington recently considered two bills. One from 2016 would have required pretrial reliability hearings in all informant cases.  The other would have required enhanced prosecutorial disclosure.  Barry Scheck, founder and director of the Innocence Project, wrote that the Washington legislation was a “key advance” and that it represented an opportunity to “ensure that the strongest protections are in place for the innocent.”

Texas passes strong new informant disclosure law

by

At the recommendation of the Timothy Cole Commission, Texas has passed strong new legislation requiring the government to collect a range of data on its jailhouse informants, including prior testimony and benefits, and to turn that data over to the defense.  The bill is here.

And here is the New York Times Editorial Board’s glowing review of the new law, Texas Cracks Down on the Market for Jailhouse Snitches, calling it “the most comprehensive effort yet to rein in the dangers of transactional snitching.” The Times also notes, however, that prosecutors are supposed to turn over such evidence anyway and that further reforms are called for, such as reliability hearings and barring informants in capital cases.

North Dakota passes cutting edge legislation

by

In the wake of the death of college student Andrew Sadek, North Dakota has passed Andrew’s Law, an important piece of legislation that sets a new standard in informant reform.  Some of the most heartening aspects of the bill are as follows:

  • It bans the use of informants who are 15 years old or younger. Only California and New Jersey currently ban the use of juvenile informants at the state level, and their cutoff is 12 years old.  
  • College police may not use college students as informants.
  • Police officers must be trained before they use informants.
  • All informant agreements must be in writing. The agreement must include, among other things, an explanation of what the informant is expected to do and what benefit they can expect to receive.  This is particularly important since young and vulnerable informants may not know what is expected of them, and law enforcement may continue to use them without clear boundaries or limits.
  • The agreement must tell the informant of their right to consult with counsel.
  • The agreement must warn the informant that the work may be dangerous.
  • The bill creates procedures for complaints, and an investigative process when an informant is killed.
This legislation is the culmination of a decade-long public debate over vulnerable informants that has been brewing since 23-year-old Rachel Hoffman was killed in Florida in 2008.  Since then, we have learned about the rampant, unregulated use of young informants, and how some campus police pressure college students into risking their education and even their lives.  North Dakota’s new law is one of the best responses so far.  More details from the Huffington Post here.

Montana introduces informant reform legislation

by

Montana State Senator Nels Swandal (R) has introduced legislation–SB0249–that would improve the reliability and accountability of informant use.  Among other things, the bill would require the recording of informant statements, improved disclosure of informant benefits and prior criminal history, reliability hearings, and post-conviction remedies for wrongful conviction.  News coverage here.