Using juvenile offenders as informants can be the opposite of rehabilitation: it keeps young people in contact with criminal networks and can exacerbate drug use and other dangerous behaviors. See this post on a Miami juvenile informant. But a new “restorative justice” approach in Texas offers a different model, in which juveniles charged with serious drug offenses are offered a chance at rehabilitation and skills training. Here’s the NYTimes article: New Home for Juveniles Recruited to the Drug Trade. Almost no states regulate the law enforcement policy of turning young people into informants (see Dennis, Juvenile Snitches); the Texas experiment reminds us that the juvenile system is first and foremost supposed to be rehabilitative.
Informant Law
Law review article on Rachel’s Law
The Boston College Journal of Law & Social Justice has published this note, Toward Efficiency and Equity in Law Enforcement: “Rachel’s Law” and the Protection of Drug Informants. It focuses on an important provision in Rachel’s Law that was eliminated, that would have required police to provide potential informants with counsel. Here’s the abstract:
Following the murder of Rachel Morningstar Hoffman–a 23-year old college graduate–Florida passed “Rachel’s Law,” which established new guidelines for the police when dealing with confidential informants. Immediately prior to its enactment, lawmakers stripped Rachel’s Law of key provisions. These provisions required police to provide a potential informant with an attorney before agreeing to any deal. Opponents of these provisions argue that they hamstring law enforcement agencies in their efforts to prosecute drug crimes. Rather than serving as an obstacle to effective law enforcement, the attorney provision in the original version of Rachel’s Law enables efficient prosecution of crimes and protects minor drug offenders who may be unsuited for potentially dangerous undercover informant work. This Note recommends that the attorney provision be restored to Rachel’s Law, and encourages other states to enact similar statutes.
Tallahassee agrees to pay $2.6 million in informant Rachel Hoffman’s death
The city of Tallahassee, FL, has agreed to settle the case over informant Rachel Hoffman’s death for $2.6 million. Story here. Tallahassee police had sent Hoffman, a young inexperienced informant, on a sting operation to buy guns and drugs, during which she was killed. After Hoffman’s death, the Florida legislature passed “Rachel’s Law” which requires Florida police to create guidelines for the creation and use of informants. See this previous post: Florida’s Rachel’s Law offers some protection to informants. The Hoffman settlement is an important milestone because it acknowledges that governments may be responsible for the dangers that informants often face when trying to satisfy police or prosecutorial demands for information and cooperation. Recently, several other families have brought similar suits for the death of young informants. See here , here, and here.
Supreme Court begins debating informant unreliability
The Supreme Court released an order today denying certiorari in Cash v. Maxwell, formerly Maxwell v. Roe, an important Ninth Circuit decision discussed in this previous post. Usually the Court does not explain cert denials, but this case generated a heated debate between Justice Sotomayor, who supported the denial, and Justices Scalia and Alito who thought the Ninth Circuit’s decision should have been overturned. See SCOTUSblog post here, and L.A. Times story here.
Today’s decision is important for a number of reasons. First, it shows that the Justices have joined numerous state and federal legislators in recognizing the problem of informant unreliability. Informant-based wrongful convictions are increasingly frequent in the courts and in the news, and many states have taken up the issue. See Legislation Section of the main website. Although the Court did not answer the question today, it’s a sign of the times that the Justices are arguing about it.
Maxwell also shows how the legal debate over informant use is becoming less about procedure and more about substantive questions of reliability and innocence. Until recently, most informant litigation has been a fight over disclosure: the information that the government must disclose regarding its use of compensated criminal witnesses. The Maxwell case and the Sotomayor/Scalia debate squarely confront the substantive question of unreliability: how unreliable can compensated criminal witnesses be before the law restricts their use? Or to put it another way, how high is our tolerance for the likelihood of wrongful conviction? Even Justice Scalia concluded that the informant in Maxwell’s case was a “habitual liar,” and that there were reasons “to think it likely that he testified falsely” at Maxwell’s trial. The Ninth Circuit took the next step, holding that the Due Process Clause does not permit such clearly unreliable evidence to be used. As a result of today’s cert denial, this holding stands.
Finally, Justice Sotomayor pointed out that the Ninth Circuit relied on “an avalanche of evidence” that the informant in that case was unreliable. The existence of such evidentiary avalanches is a relatively new phenomenon. Thanks to the innocence movement and numerous new studies (see Resources & Scholarship section on the main website), courts and litigators have more evidence than ever before regarding the unreliability of criminal informants. These new data will surely change how courts consider such questions in the future.
Congressman Lynch introduces informant legislation
In the wake of new revelations about FBI informant crimes, U.S. Representative Stephen F. Lynch (D-MA) has introduced important new legislation that would require federal investigative agencies to report their informants’ serious crimes to Congress. H.R. 3228, The Confidential Informant Accountability Act, would require the FBI, the DEA, Secret Service, ICE and ATF to report every six months to Congress all “serious crimes” committed by their informants, whether or not those crimes were authorized. “Serious crime” is defined as any serious violent felony, any serious drug crime, or any crime of racketeering, bribery, child pornography, obstruction of justice, or perjury. The bill prohibits the disclosure of informant names, control numbers, or any other personal information that might permit them to be identified. Under the U.S. Attorney General’s Guidelines, the FBI is already required to disclose its informants’ crimes to federal prosecutors.
The bill would also help the families of two men who were killed in connection with FBI informant Whitey Bulger to recover damages from the FBI. For more background, see these stories in the Boston Globe: Bill would aid kin of two slain men, and Pants on Fire. Full disclosure: I provided information to Congressman Lynch’s office in support of this bill and I am strongly in favor of the effort.